Contents

Women Workers ................................................................................................................................................................... 1

Del Monte Philippines, Inc. vs. Velasco .................................................................................................................... 1
PT&T vs. NLRC ............................................................................................................................................................ 6
Lakpue Drug, Inc. vs. Belga, G.R. No. 166379, October 20, 2005 .................................................................... 12
Star Paper Corp. vs. Simbol, April 12, 2006 G.R. No. 164774 ........................................................................... 16
Duncan Association vs. Glaxo Welcome Philippines, G.R. No. 162994, September 17, 2004 ..................... 22
Domingo vs. Rayala, 546 SCRA 90 ........................................................................................................................ 28
Bacsin vs. Wahiman, April 30, 2008, G.R. No. G.R. No. 146053 ....................................................................... 42
Employment of Minors ....................................................................................................................................................... 45
RA No. 7678 ................................................................................................................................................................ 45
RA No. 9231 ................................................................................................................................................................ 48
RA 7610 ....................................................................................................................................................................... 53
DO No. 065-04 Rules and regulations of RA 9231 ............................................................................................... 62
Hazardous Workplaces. Department Order No. 4-1999 ...................................................................................... 71
Book Four Health, Safety and Social Welfare ............................................................................................................... 73
Escasinas, et.al vs. Shangri-las Mactan Island Resort. G.R. No. 178827 ....................................................... 73
Women Workers
Del Monte Philippines, Inc. vs. Velasco
G.R. NO. 153477
March 6, 2007
DEL MONTE PHILIPPINES, INC., Petitioner,
vs.
LOLITA VELASCO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Certiorari under Rule 45 seeking to reverse and set aside the Decision1
dated July 23, 2001 of the Court of Appeals (CA) in CA-G.R. SP No. 56571 which affirmed the Decision dated
May 27, 1999 of the National Labor Relations Commission (NLRC); and the CA Resolution2 dated May 7,
2002 which denied the petitioner's Motion for Reconsideration.
The facts of the case, as stated by the CA, are as follows:
Lolita M. Velasco (respondent) started working with Del Monte Philippines (petitioner) on October 21, 1976 as
a seasonal employee and was regularized on May 1, 1977. Her latest assignment was as Field Laborer.
On June 16, 1987, respondent was warned in writing due to her absences. On May 4, 1991, respondent, thru a
letter, was again warned in writing by petitioner about her absences without permission and a forfeiture of her
vacation leave entitlement for the year 1990-1991 was imposed against her.
On September 14, 1992, another warning letter was sent to respondent regarding her absences without
permission during the year 1991-1992. Her vacation entitlement for the said employment year affected was
consequently forfeited.

In view of the said alleged absences without permission, on September 17, 1994, a notice of hearing was sent
to respondent notifying her of the charges filed against her for violating the Absence Without Official Leave
rule: that is for excessive absence without permission on August 15-18, 29-31 and September 1-10, 1994. The
hearing was set on September 23, 1994.
Respondent having failed to appear on September 23, 1994 hearing, another notice of hearing was sent to her
resetting the investigation on September 30, 1994. It was again reset to October 5, 1994.
On January 10, 1995, after hearing, the petitioner terminated the services of respondent effective January 16,
1994 due to excessive absences without permission.
Feeling aggrieved, respondent filed a case for illegal dismissal against petitioner asserting that her dismissal
was illegal because she was on the family way suffering from urinary tract infection, a pregnancy-borne, at the
time she committed the alleged absences. She explained that for her absence from work on August 15, 16, 17
& 18, 1994 she had sent an application for leave to her supervisor, Prima Ybaez. Thereafter, she went to the
company hospital for check-up and was advised accordingly to rest in quarters for four (4) days or on August
27 to 30, 1994. Still not feeling well, she failed to work on September 1, 1994 and was again advised two days
of rest in quarters on September 2-3, 1994. Unable to recover, she went to see an outside doctor, Dr. Marilyn
Casino, and the latter ordered her to rest for another five (5) consecutive days, or from September 5 to 9,
1994. She declared she did not file the adequate leave of absence because a medical certificate was already
sufficient per company policy. On September 10, 1994 she failed to report to work but sent an application for
leave of absence to her supervisor, Prima Ybaez, which was not anymore accepted.3
On April 13, 1998, the Labor Arbiter dismissed the Complaint for lack of merit. The Labor Arbiter held that the
respondent was an incorrigible absentee; that she failed to file leaves of absence; that her absences in 1986
and 1987 were without permission; that the petitioner gave the respondent several chances to reform herself;
and that the respondent did not justify her failure to appear during the scheduled hearings and failed to explain
her absences.
Respondent appealed to the NLRC. On May 29, 1999, the NLRC issued its Resolution, the dispositive portion
of which reads:
WHEREFORE, foregoing considered, the instant decision is hereby VACATED and a new one entered
declaring the dismissal of complainant as ILLEGAL. In consonance with Art. 279 of the Labor [Code], her
reinstatement with full backwages from the date of her termination from employment to her actual
reinstatement is necessarily decreed.4
The NLRC held that, under the company rules, the employee may make a subsequent justification of her
absenteeism, which she was able to do in the instant case; that while it is not disputed that the respondent
incurred absences exceeding six (6) days within one employment year a ground for dismissal under the
company rules the petitioner actually admitted the fact that the respondent had been pregnant, hence,
negating petitioners assertion that the respondent failed to give any explanation of her absences; that the
records bear the admission of petitioners officer of the receipt of the hospital record showing the cause of her
absences ("RIQ advice" or "rest-in-quarters") for August 19-20, 1994 which, in turn, could already serve as
reference in resolving the absences on August 15 to 18; that the petitioner further admitted that the respondent
was under "RIQ advice" on September 2-3, 1994 and yet insisted in including these dates among respondents
16 purported unexplained absences; that it is sufficient notice for the petitioner, "a plain laborer" with
"unsophisticated judgment," to send word to her employer through a co-worker on August 15 to 16, 1994 that
she was frequently vomiting; that the sheer distance between respondents home and her workplace made it
difficult to send formal notice; that respondent even sent her child of tender age to inform her supervisor about
her absence on September 5, 1994 due to stomach ache, but her child failed to approach the officer because
her child felt ashamed, if not mortified; that respondents narration that she had to bear pains during her
absences on September 21 to 27, 1994 is credible; that she dared not venture through the roads for fear of
forest creatures or predators; that the petitioner is guilty of unlawfully discharging respondent on account of her

pregnancy under Article 137(2) of the Labor Code; and, that petitioners reference to the previous absenteeism
of respondent is misplaced because the latter had already been penalized therefor.
Petitioners Motion for Reconsideration was denied on September 30, 1999.
The petitioner then appealed to the CA. On July 23, 2001, the CA promulgated its Decision the dispositive
portion of which states:
VIEWED IN THE LIGHT OF ALL THE FOREGOING, the instant petition is DISMISSED, the Resolutions, dated
May 27, 1999 and September 30, 1999 of the National Labor Relations Commission in NLRC CA No. M003926-98, are hereby AFFIRMED in toto.
SO ORDERED.5
In affirming the NLRC, the CA held that absences due to a justified cause cannot be a ground for dismissal;
that it is undisputed that the respondent was pregnant at the time she incurred the absences in question; that
the certification issued by a private doctor duly established this fact; that it was no less than petitioners
company doctor who advised the respondent to have rest-in-quarters for four days on account of a pregnancyrelated sickness; that it had been duly established that respondent filed leaves of absence though the last had
been refused by the company supervisor; that the dismissal of an employee due to prolonged absence with
leave by reason of illness duly established by the presentation of a medical certificate is not justified; that it is
undisputed that respondents sickness was pregnancy-related; that under Article 137(2) of the Labor Code, the
petitioner committed a prohibited act in discharging a woman on account of her pregnancy.
On May 7, 2002, the CA denied petitioners Motion for Reconsideration.
Hence, the instant Petition raising the following issues:
I.
The court of appeals seriously erred In considering respondents Excessive aWOPs as justified Simply on
account of her pregnancy.
II.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT CONSIDERING THAT RESPONDENTS LATEST
STRING OF ABSENCES INCURRED WITHOUT ANY PRIOR PERMISSION, AND AS ABOVE SHOWN,
WITHOUT ANY VALID JUSTIFICATION, TAKEN TOGETHER WITH HER DAMAGING awop history,
established her gross and habitual neGlect of duties, a just and valid ground for dismissal.
III.
The court of appeals seriously erred in holding that respondents dismissal was in violation of article 137
(prohibiting an employer to discharge an employee on account of her pregnancy).
IV.
The court of appeals seriously erred in awarding full backwages in favor of respondent notwithstanding
petitioners evident good faith.6
The essential question is whether the employment of respondent had been validly terminated on the ground of
excessive absences without permission. Corollary to this is the question of whether the petitioner discharged
the respondent on account of pregnancy, a prohibited act.
The petitioner posits the following arguments: (a) The evidence proffered by the respondent, to wit: (1) the
Discharge Summary indicating that she had been admitted to the Phillips Memorial Hospital on August 23,

1994 and discharged on August 26, 1994, and that she had been advised to "rest in quarters" for four days
from August 27, 1994 to August 30, 1994, and (2) the Medical Certificate issued by Dr. Marilyn M. Casino
stating that respondent had sought consultation on September 4, 2002 because of spasm in the left iliac
region, and was advised to rest for five days (from September 4, 1994 up to September 8, 1994), due to
urinary tract infection, all in all establish respondents sickness only from August 23, 1994 up to August 30,
1994 and from September 4, 1994 up to September 8, 1994. In other words, respondent was absent without
permission on several other days which were not supported by any other proof of illness, specifically, on
August 15, 16, 17, 18, 31, 1994 and September 1, 2, 3, 9, and 10, 1994, and, hence, she is guilty of ten
unjustified absences; (b) Per Filflex Industrial and Manufacturing Co. v. National Labor Relations Commission
(Filflex),7 if the medical certificate fails to refer to the specific period of the employees absence, then such
absences, attributable to chronic asthmatic bronchitis, are not supported by competent proof and, hence, they
are unjustified. By parity of reasoning, in the absence of evidence indicating any pregnancy-borne illness
outside the period stated in respondents medical certificate, such illness ought not to be considered as an
acceptable excuse for respondents excessive absences without leave; (c) Respondents latest string of
absences, taken together with her long history of absenteeism without permission, established her gross and
habitual neglect of duties, as established by jurisprudence; (d) The respondent was dismissed not by reason of
her pregnancy but on account of her gross and habitual neglect of duties. In other words, her pregnancy had
no bearing on the decision to terminate her employment; and, (e) Her state of pregnancy per se could not
excuse her from filing prior notice for her absence.
Petitioners arguments are without merit.
First. The Filflex Industrial and Manufacturing Co. case is not applicable, principally because the nature and
gravity of the illness involved in that case chronic asthmatic bronchitis are different from the conditions that
are present in the instant case, which is pregnancy and its related illnesses.
The Court takes judicial notice of the fact that the condition of asthmatic bronchitis may be intermittent, in
contrast to pregnancy which is a continuing condition accompanied by various symptoms and related illnesses.
Hence, as to the former, if the medical certificate or other proof proffered by the worker fails to correspond with
the dates of absence, then it can be reasonably concluded that, absent any other proof, such absences are
unjustified. This is the ruling in Filflex which cannot be applied in a straight-hand fashion in cases of pregnancy
which is a long-term condition accompanied by an assortment of related illnesses.
In this case, by the measure of substantial evidence, what is controlling is the finding of the NLRC and the CA
that respondent was pregnant and suffered from related ailments. It would be unreasonable to isolate such
condition strictly to the dates stated in the Medical Certificate or the Discharge Summary. It can be safely
assumed that the absences that are not covered by, but which nonetheless approximate, the dates stated in
the Discharge Summary and Medical Certificate, are due to the continuing condition of pregnancy and related
illnesses, and, hence, are justified absences.
As the CA and the NLRC correctly noted, it is not disputed that respondent was pregnant and that she was
suffering from urinary tract infection, and that her absences were due to such facts. The petitioner admits these
facts in its Petition for Review.8 And, as the CA aptly held, it was no less than the company doctor who
advised the respondent to have "rest-in-quarters" for four days on account of a pregnancy-related sickness.9
On this note, this Court upholds and adopts the finding of the NLRC, thus:
In this jurisdiction tardiness and absenteeism, like abandonment, are recognized forms of neglect of duties, the
existence of which justify the dismissal of the erring employee. Respondents rule penalizing with discharge
any employee who has incurred six (6) or more absences without permission or subsequent justification is
admittedly within the purview of the foregoing standard.
However, while it is not disputed that complainant incurred absences exceeding six (6) days as she actually
failed to report for work from August 15-18, 23-26, 29-31, September 1-3, 5-10, 12-17, 21-24, 26-30, and
October 1-3, 1994, her being pregnant at the time these absences were incurred is not questioned and is even
admitted by respondent. It thus puzzles us why respondent asserts complainant failed to explain satisfactorily

her absences on August 15-18, 29-31, September 1-3 and 5-10, 1994, yet reconsidered the rest of her
absences for being covered with "rest-in-quarters" (RIQ) advice from its hospital personnel when this advice
was unquestionably issued in consideration of the physiological and emotional changes complainant, a
conceiving mother, naturally developed. Medical and health reports abundantly disclose that during the first
trimester of pregnancy, expectant mothers are plagued with morning sickness, frequent urination, vomiting and
fatigue all of which complainant was similarly plagued with. Union official IBB Lesnas observation on
complainant being [sic] apparently not feeling well during the investigation conducted by respondent on
October 5, 1994 even remains in the records of said proceedings. For respondent to isolate the absences of
complainant in August and mid-September, 1994 from the absences she incurred later in said month without
submitting any evidence that these were due to causes not in manner associated with her [ ] condition renders
its justification of complainants dismissal clearly not convincing under the circumstances.
Despite contrary declaration, the records bear the admission of respondents P/A North Supervisor, PB
Ybanez, of her receipt of the hospital record showing complainants RIQ advice for August 19-20, 1994 which
could already serve as respondents reference in resolving the latters absences on August 15 to 18, 1994.
Respondent further admitted complainant was under RIQ advice on September 2-3, 1994, yet, insisted in
including these dates among her 16 purported unexplained absences justifying termination of her
employment.10 (emphasis supplied)
Petitioners contention that the cause for the dismissal was gross and habitual neglect unrelated to her state of
pregnancy is unpersuasive.
The Court agrees with the CA in concluding that respondents sickness was pregnancy-related and, therefore,
the petitioner cannot terminate respondents services because in doing so, petitioner will, in effect, be violating
the Labor Code which prohibits an employer to discharge an employee on account of the latters pregnancy.11
Article 137 of the Labor Code provides:
Art. 137. Prohibited acts. It shall be unlawful for any employer:
(1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman
employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code;
(2) To discharge such woman on account of her pregnancy, while on leave or in confinement due to her
pregnancy; or
(3) To discharge or refuse the admission of such woman upon returning to her work for fear that she may again
be pregnant. (Emphasis supplied)
Second. The petitioner stresses that many women go through pregnancy and yet manage to submit prior
notices to their employer, especially if "there is no evidence on record indicating a condition of such gravity as
to preclude efforts at notifying petitioner of her absence from work in series."12 But it must be emphasized that
under petitioners company rules, absences may be subsequently justified.13 The Court finds no cogent
reason to disturb the findings of the NLRC and the CA that the respondent was able to subsequently justify her
absences in accordance with company rules and policy; that the respondent was pregnant at the time she
incurred the absences; that this fact of pregnancy and its related illnesses had been duly proven through
substantial evidence; that the respondent attempted to file leaves of absence but the petitioners supervisor
refused to receive them; that she could not have filed prior leaves due to her continuing condition; and that the
petitioner, in the last analysis, dismissed the respondent on account of her pregnancy, a prohibited act.
Third. Petitioners reliance on the jurisprudential rule that the totality of the infractions of an employee may be
taken into account to justify the dismissal, is tenuous considering the particular circumstances obtaining in the
present case. Petitioner puts much emphasis on respondents "long history" of unauthorized absences
committed several years beforehand. However, petitioner cannot use these previous infractions to lay down a
pattern of absenteeism or habitual disregard of company rules to justify the dismissal of respondent. The
undeniable fact is that during her complained absences in 1994, respondent was pregnant and suffered related

illnesses. Again, it must be stressed that respondents discharge by reason of absences caused by her
pregnancy is covered by the prohibition under the Labor Code. Since her last string of absences is justifiable
and had been subsequently explained, the petitioner had no legal basis in considering these absences
together with her prior infractions as gross and habitual neglect.
The Court is convinced that the petitioner terminated the services of respondent on account of her pregnancy
which justified her absences and, thus, committed a prohibited act rendering the dismissal illegal.
In fine, the Court finds no cogent reason to disturb the findings of the CA and the NLRC.
WHEREFORE, the petition is DENIED for lack of merit. The Decision dated July 23, 2001 and the Resolution
dated May 7, 2002 of the Court of Appeals are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
PT&T vs. NLRC
SECOND DIVISION
[G.R. No. 118978. May 23, 1997]
PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY,* petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and GRACE DE GUZMAN, respondents.
DECISION
REGALADO, J.:
Seeking relief through the extraordinary writ of certiorari, petitioner Philippine Telegraph and Telephone
Company (hereafter, PT&T) invokes the alleged concealment of civil status and defalcation of company funds
as grounds to terminate the services of an employee. That employee, herein private respondent Grace de
Guzman, contrarily argues that what really motivated PT&T to terminate her services was her having
contracted marriage during her employment, which is prohibited by petitioner in its company policies. She thus
claims that she was discriminated against in gross violation of law, such a proscription by an employer being
outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a Supernumerary Project
Worker, for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on
maternity leave.[1] Under the Reliever Agreement which she signed with petitioner company, her employment
was to be immediately terminated upon expiration of the agreed period. Thereafter, from June 10, 1991 to July
1, 1991, and from July 19, 1991 to August 8, 1991, private respondents services as reliever were again
engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went on leave during both
periods.[2] After August 8, 1991, and pursuant to their Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company as a probationary
employee, the probationary period to cover 150 days. In the job application form that was furnished her to be
filled up for the purpose, she indicated in the portion for civil status therein that she was single although she
had contracted marriage a few months earlier, that is, on May 26, 1991.[3]
It now appears that private respondent had made the same representation in the two successive reliever
agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about
the same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a
memorandum dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was
reminded about the companys policy of not accepting married women for employment.[4]

In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&Ts policy
regarding married women at the time, and that all along she had not deliberately hidden her true civil status.[5]
Petitioner nonetheless remained unconvinced by her explanations. Private respondent was dismissed from
the company effective January 29, 1992,[6] which she readily contested by initiating a complaint for illegal
dismissal, coupled with a claim for non-payment of cost of living allowances (COLA), before the Regional
Arbitration Branch of the National Labor Relations Commission in Baguio City.
At the preliminary conference conducted in connection therewith, private respondent volunteered the
information, and this was incorporated in the stipulation of facts between the parties, that she had failed to
remit the amount of P2,380.75 of her collections. She then executed a promissory note for that amount in
favor of petitioner.[7] All of these took place in a formal proceeding and with the agreement of the parties
and/or their counsel.
On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a decision declaring that private
respondent, who had already gained the status of a regular employee, was illegally dismissed by petitioner.
Her reinstatement, plus payment of the corresponding back wages and COLA, was correspondingly ordered,
the labor arbiter being of the firmly expressed view that the ground relied upon by petitioner in dismissing
private respondent was clearly insufficient, and that it was apparent that she had been discriminated against on
account of her having contracted marriage in violation of company rules.
On appeal to the National Labor Relations Commission (NLRC), said public respondent upheld the labor
arbiter and, in its decision dated April 29, 1994, it ruled that private respondent had indeed been the subject of
an unjust and unlawful discrimination by her employer, PT&T. However, the decision of the labor arbiter was
modified with the qualification that Grace de Guzman deserved to be suspended for three months in view of
the dishonest nature of her acts which should not be condoned. In all other respects, the NLRC affirmed the
decision of the labor arbiter, including the order for the reinstatement of private respondent in her employment
with PT&T.
The subsequent motion for reconsideration filed by petitioner was rebuffed by respondent NLRC in its
resolution of November 9, 1994, hence this special civil action assailing the aforestated decisions of the labor
arbiter and respondent NLRC, as well as the denial resolution of the latter.
1. Decreed in the Bible itself is the universal norm that women should be regarded with love and respect but,
through the ages, men have responded to that injunction with indifference, on the hubristic conceit that women
constitute the inferior sex. Nowhere has that prejudice against womankind been so pervasive as in the field of
labor, especially on the matter of equal employment opportunities and standards. In the Philippine setting,
women have traditionally been considered as falling within the vulnerable groups or types of workers who must
be safeguarded with preventive and remedial social legislation against discriminatory and exploitative practices
in hiring, training, benefits, promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social
and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14,
Article II[8] on the Declaration of Principles and State Policies, expressly recognizes the role of women in
nation-building and commands the State to ensure, at all times, the fundamental equality before the law of
women and men. Corollary thereto, Section 3 of Article XIII[9] (the progenitor whereof dates back to both the
1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to promote full
employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial
security of all workers. Similarly, Section 14 of Article XIII[10] mandates that the State shall protect working
women through provisions for opportunities that would enable them to reach their full potential.
2. Corrective labor and social laws on gender inequality have emerged with more frequency in the years since
the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our countrys
commitment as a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW).[11]

Principal among these laws are Republic Act No. 6727[12] which explicitly prohibits discrimination against
women with respect to terms and conditions of employment, promotion, and training opportunities; Republic
Act No. 6955[13] which bans the mail-order-bride practice for a fee and the export of female labor to
countries that cannot guarantee protection to the rights of women workers; Republic Act No. 7192,[14] also
known as the Women in Development and Nation Building Act, which affords women equal opportunities with
men to act and to enter into contracts, and for appointment, admission, training, graduation, and
commissioning in all military or similar schools of the Armed Forces of the Philippines and the Philippine
National Police; Republic Act No. 7322[15] increasing the maternity benefits granted to women in the private
sector; Republic Act No. 7877[16] which outlaws and punishes sexual harassment in the workplace and in the
education and training environment; and Republic Act No. 8042,[17] or the Migrant Workers and Overseas
Filipinos Act of 1995, which prescribes as a matter of policy, inter alia, the deployment of migrant workers,
with emphasis on women, only in countries where their rights are secure. Likewise, it would not be amiss to
point out that in the Family Code,[18] womens rights in the field of civil law have been greatly enhanced and
expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138 thereof.
Article 130 involves the right against particular kinds of night work while Article 132 ensures the right of women
to be provided with facilities and standards which the Secretary of Labor may establish to ensure their health
and safety. For purposes of labor and social legislation, a woman working in a nightclub, cocktail lounge,
massage clinic, bar or other similar establishments shall be considered as an employee under Article 138.
Article 135, on the other hand, recognizes a womans right against discrimination with respect to terms and
conditions of employment on account simply of sex. Finally, and this brings us to the issue at hand, Article 136
explicitly prohibits discrimination merely by reason of the marriage of a female employee.
3. Acknowledged as paramount in the due process scheme is the constitutional guarantee of protection to
labor and security of tenure. Thus, an employer is required, as a condition sine qua non prior to severance of
the employment ties of an individual under his employ, to convincingly establish, through substantial evidence,
the existence of a valid and just cause in dispensing with the services of such employee, ones labor being
regarded as constitutionally protected property.
On the other hand, it is recognized that regulation of manpower by the company falls within the so-called
management prerogatives, which prescriptions encompass the matter of hiring, supervision of workers, work
assignments, working methods and assignments, as well as regulations on the transfer of employees, lay-off of
workers, and the discipline, dismissal, and recall of employees.[19] As put in a case, an employer is free to
regulate, according to his discretion and best business judgment, all aspects of employment, from hiring to
firing, except in cases of unlawful discrimination or those which may be provided by law.[20]
In the case at bar, petitioners policy of not accepting or considering as disqualified from work any woman
worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all
women workers by our labor laws and by no less than the Constitution. Contrary to petitioners assertion that it
dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that
her ties with the company were dissolved principally because of the companys policy that married women are
not qualified for employment in PT&T, and not merely because of her supposed acts of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the
branch supervisor of the company, with the reminder, in the words of the latter, that youre fully aware that the
company is not accepting married women employee (sic), as it was verbally instructed to you.[21] Again, in
the termination notice sent to her by the same branch supervisor, private respondent was made to understand
that her severance from the service was not only by reason of her concealment of her married status but, over
and on top of that, was her violation of the companys policy against marriage (and even told you that married
women employees are not applicable [sic] or accepted in our company.)[22] Parenthetically, this seems to be
the curious reason why it was made to appear in the initiatory pleadings that petitioner was represented in this
case only by its said supervisor and not by its highest ranking officers who would otherwise be solidarily liable
with the corporation.[23]

Verily, private respondents act of concealing the true nature of her status from PT&T could not be properly
characterized as willful or in bad faith as she was moved to act the way she did mainly because she wanted to
retain a permanent job in a stable company. In other words, she was practically forced by that very same
illegal company policy into misrepresenting her civil status for fear of being disqualified from work. While loss
of confidence is a just cause for termination of employment, it should not be simulated.[24] It must rest on an
actual breach of duty committed by the employee and not on the employers caprices.[25] Furthermore, it
should never be used as a subterfuge for causes which are improper, illegal, or unjustified.[26]
In the present controversy, petitioners expostulations that it dismissed private respondent, not because the
latter got married but because she concealed that fact, does have a hollow ring. Her concealment, so it is
claimed, bespeaks dishonesty hence the consequent loss of confidence in her which justified her dismissal.
Petitioner would asseverate, therefore, that while it has nothing against marriage, it nonetheless takes
umbrage over the concealment of that fact. This improbable reasoning, with interstitial distinctions, perturbs
the Court since private respondent may well be minded to claim that the imputation of dishonesty should be the
other way around.
Petitioner would have the Court believe that although private respondent defied its policy against its female
employees contracting marriage, what could be an act of insubordination was inconsequential. What it submits
as unforgivable is her concealment of that marriage yet, at the same time, declaring that marriage as a trivial
matter to which it supposedly has no objection. In other words, PT&T says it gives its blessings to its female
employees contracting marriage, despite the maternity leaves and other benefits it would consequently
respond for and which obviously it would have wanted to avoid. If that employee confesses such fact of
marriage, there will be no sanction; but if such employee conceals the same instead of proceeding to the
confessional, she will be dismissed. This line of reasoning does not impress us as reflecting its true
management policy or that we are being regaled with responsible advocacy.
This Court should be spared the ennui of strained reasoning and the tedium of propositions which confuse
through less than candid arguments. Indeed, petitioner glosses over the fact that it was its unlawful policy
against married women, both on the aspects of qualification and retention, which compelled private respondent
to conceal her supervenient marriage. It was, however, that very policy alone which was the cause of private
respondents secretive conduct now complained of. It is then apropos to recall the familiar saying that he who
is the cause of the cause is the cause of the evil caused.
Finally, petitioners collateral insistence on the admission of private respondent that she supposedly
misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat
insincere and self-serving. Concededly, private respondent admitted in the course of the proceedings that she
failed to remit some of her collections, but that is an altogether different story. The fact is that she was
dismissed solely because of her concealment of her marital status, and not on the basis of that supposed
defalcation of company funds. That the labor arbiter would thus consider petitioners submissions on this
supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a perceptive conclusion
born of experience in labor cases. For, there was no showing that private respondent deliberately
misappropriated the amount or whether her failure to remit the same was through negligence and, if so,
whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent
execute a promissory note to refund the same, which she did, and the matter was deemed settled as a
peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she was
served her walking papers on January 29, 1992, she was about to complete the probationary period of 150
days as she was contracted as a probationary employee on September 2, 1991. That her dismissal would be
effected just when her probationary period was winding down clearly raises the plausible conclusion that it was
done in order to prevent her from earning security of tenure.[27] On the other hand, her earlier stints with the
company as reliever were undoubtedly those of a regular employee, even if the same were for fixed periods,
as she performed activities which were essential or necessary in the usual trade and business of PT&T.[28]
The primary standard of determining regular employment is the reasonable connection between the activity
performed by the employee in relation to the business or trade of the employer.[29]

As an employee who had therefore gained regular status, and as she had been dismissed without just cause,
she is entitled to reinstatement without loss of seniority rights and other privileges and to full back wages,
inclusive of allowances and other benefits or their monetary equivalent.[30] However, as she had undeniably
committed an act of dishonesty in concealing her status, albeit under the compulsion of an unlawful imposition
of petitioner, the three-month suspension imposed by respondent NLRC must be upheld to obviate the
impression or inference that such act should be condoned. It would be unfair to the employer if she were to
return to its fold without any sanction whatsoever for her act which was not totally justified. Thus, her
entitlement to back wages, which shall be computed from the time her compensation was withheld up to the
time of her actual reinstatement, shall be reduced by deducting therefrom the amount corresponding to her
three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature of that adopted by petitioner PT&T.
The Labor Code states, in no uncertain terms, as follows:
ART. 136. Stipulation against marriage. - It shall be unlawful for an employer to require as a condition of
employment or continuation of employment that a woman shall not get married, or to stipulate expressly or
tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually
dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage.
This provision had a studied history for its origin can be traced to Section 8 of Presidential Decree No. 148,[31]
better known as the Women and Child Labor Law, which amended paragraph (c), Section 12 of Republic Act
No. 679,[32] entitled An Act to Regulate the Employment of Women and Children, to Provide Penalties for
Violations Thereof, and for Other Purposes. The forerunner to Republic Act No. 679, on the other hand, was
Act No. 3071 which became law on March 16, 1923 and which regulated the employment of women and
children in shops, factories, industrial, agricultural, and mercantile establishments and other places of labor in
the then Philippine Islands.
It would be worthwhile to reflect upon and adopt here the rationalization in Zialcita, et al. vs. Philippine Air
Lines,[33] a decision that emanated from the Office of the President. There, a policy of Philippine Air Lines
requiring that prospective flight attendants must be single and that they will be automatically separated from
the service once they marry was declared void, it being violative of the clear mandate in Article 136 of the
Labor Code with regard to discrimination against married women. Thus:
Of first impression is the incompatibility of the respondents policy or regulation with the codal provision of law.
Respondent is resolute in its contention that Article 136 of the Labor Code applies only to women employed in
ordinary occupations and that the prohibition against marriage of women engaged in extraordinary
occupations, like flight attendants, is fair and reasonable, considering the pecularities of their chosen
profession.
We cannot subscribe to the line of reasoning pursued by respondent. All along, it knew that the controverted
policy has already met its doom as early as March 13, 1973 when Presidential Decree No. 148, otherwise
known as the Women and Child Labor Law, was promulgated. But for the timidity of those affected or their
labor unions in challenging the validity of the policy, the same was able to obtain a momentary reprieve. A
close look at Section 8 of said decree, which amended paragraph (c) of Section 12 of Republic Act No. 679,
reveals that it is exactly the same provision reproduced verbatim in Article 136 of the Labor Code, which was
promulgated on May 1, 1974 to take effect six (6) months later, or on November 1, 1974.
It cannot be gainsaid that, with the reiteration of the same provision in the new Labor Code, all policies and
acts against it are deemed illegal and therefore abrogated. True, Article 132 enjoins the Secretary of Labor to
establish standards that will ensure the safety and health of women employees and in appropriate cases shall
by regulation require employers to determine appropriate minimum standards for termination in special
occupations, such as those of flight attendants, but that is precisely the factor that militates against the policy of
respondent. The standards have not yet been established as set forth in the first paragraph, nor has the
Secretary of Labor issued any regulation affecting flight attendants.

It is logical to presume that, in the absence of said standards or regulations which are as yet to be established,
the policy of respondent against marriage is patently illegal. This finds support in Section 9 of the New
Constitution, which provides:
Sec. 9. The State shall afford protection to labor, promote full employment and equality in employment, ensure
equal work opportunities regardless of sex, race, or creed, and regulate the relations between workers and
employees. The State shall assure the rights of workers to self-organization, collective bargaining, security of
tenure, and just and humane conditions of work x x x.
Moreover, we cannot agree to the respondents proposition that termination from employment of flight
attendants on account of marriage is a fair and reasonable standard designed for their own health, safety,
protection and welfare, as no basis has been laid therefor. Actually, respondent claims that its concern is not
so much against the continued employment of the flight attendant merely by reason of marriage as observed
by the Secretary of Labor, but rather on the consequence of marriage-pregnancy. Respondent discussed at
length in the instant appeal the supposed ill effects of pregnancy on flight attendants in the course of their
employment. We feel that this needs no further discussion as it had been adequately explained by the
Secretary of Labor in his decision of May 2, 1976.
In a vain attempt to give meaning to its position, respondent went as far as invoking the provisions of Articles
52 and 216 of the New Civil Code on the preservation of marriage as an inviolable social institution and the
family as a basic social institution, respectively, as bases for its policy of non-marriage. In both instances,
respondent predicates absence of a flight attendant from her home for long periods of time as contributory to
an unhappy married life. This is pure conjecture not based on actual conditions, considering that, in this
modern world, sophisticated technology has narrowed the distance from one place to another. Moreover,
respondent overlooked the fact that married flight attendants can program their lives to adapt to prevailing
circumstances and events.
Article 136 is not intended to apply only to women employed in ordinary occupations, or it should have
categorically expressed so. The sweeping intendment of the law, be it on special or ordinary occupations, is
reflected in the whole text and supported by Article 135 that speaks of non-discrimination on the employment
of women.
The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining & Industrial Corporation[34]
considered as void a policy of the same nature. In said case, respondent, in dismissing from the service the
complainant, invoked a policy of the firm to consider female employees in the project it was undertaking as
separated the moment they get married due to lack of facilities for married women. Respondent further
claimed that complainant was employed in the project with an oral understanding that her services would be
terminated when she gets married. Branding the policy of the employer as an example of discriminatory
chauvinism tantamount to denying equal employment opportunities to women simply on account of their sex,
the appellate court struck down said employer policy as unlawful in view of its repugnance to the Civil Code,
Presidential Decree No. 148 and the Constitution.
Under American jurisprudence, job requirements which establish employer preference or conditions relating to
the marital status of an employee are categorized as a sex-plus discrimination where it is imposed on one
sex and not on the other. Further, the same should be evenly applied and must not inflict adverse effects on a
racial or sexual group which is protected by federal job discrimination laws. Employment rules that forbid or
restrict the employment of married women, but do not apply to married men, have been held to violate Title VII
of the United States Civil Rights Act of 1964, the main federal statute prohibiting job discrimination against
employees and applicants on the basis of, among other things, sex.[35]
Further, it is not relevant that the rule is not directed against all women but just against married women. And,
where the employer discriminates against married women, but not against married men, the variable is sex and
the discrimination is unlawful.[36] Upon the other hand, a requirement that a woman employee must remain
unmarried could be justified as a bona fide occupational qualification, or BFOQ, where the particular
requirements of the job would justify the same, but not on the ground of a general principle, such as the
desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects

an inherent quality reasonably necessary for satisfactory job performance. Thus, in one case, a no-marriage
rule applicable to both male and female flight attendants, was regarded as unlawful since the restriction was
not related to the job performance of the flight attendants.[37]
5. Petitioners policy is not only in derogation of the provisions of Article 136 of the Labor Code on the right of a
woman to be free from any kind of stipulation against marriage in connection with her employment, but it
likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to
choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable
right.[38] Hence, while it is true that the parties to a contract may establish any agreements, terms, and
conditions that they may deem convenient, the same should not be contrary to law, morals, good customs,
public order, or public policy.[39] Carried to its logical consequences, it may even be said that petitioners
policy against legitimate marital bonds would encourage illicit or common-law relations and subvert the
sacrament of marriage.
Parenthetically, the Civil Code provisions on the contract of labor state that the relations between the parties,
that is, of capital and labor, are not merely contractual, impressed as they are with so much public interest that
the same should yield to the common good.[40] It goes on to intone that neither capital nor labor should visit
acts of oppression against the other, nor impair the interest or convenience of the public.[41] In the final
reckoning, the danger of just such a policy against marriage followed by petitioner PT&T is that it strikes at the
very essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as
the foundation of the nation.[42] That it must be effectively interdicted here in all its indirect, disguised or
dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but
imperatively required.
ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and Telephone Company is hereby
DISMISSED for lack of merit, with double costs against petitioner.
SO ORDERED.
Romero, Puno, Mendoza, and Torres, Jr., JJ., concur.
* The phrase herein represented by DELIA M. OFICIAL, added hereto in the title of this case as stated in
the petition, has been deleted for being unnecessary and violative of the rules on pleadings, and is commented
upon in the text of this opinion.

Lakpue Drug, Inc. vs. Belga, G.R. No. 166379, October 20, 2005

FIRST DIVISION

LAKPUE DRUG, INC., LA

CROESUS PHARMA, INC.,
TROPICAL BIOLOGICAL PHILS.,
INC. (all known as LAKPUE GROUP
OF COMPANIES) and/or ENRIQUE
CASTILLO, JR.,
Petitioners,
Present:

G.R. No. 166379

- versus -

Davide, Jr., C.J. (Chairman),

Quisumbing,
Ynares-Santiago,

Carpio, and
Azcuna, JJ.
MA. LOURDES BELGA,
Respondent.

Promulgated:

October 20, 2005

x ---------------------------------------------------------------------------------------- x
DECISION

YNARES-SANTIAGO, J.:
Before us is a petition for review of the July 28, 2004 Decision[1] of the Court of Appeals in CA-G.R. SP
No. 80616 which reversed and set aside the April 14, 2003 Decision[2] of the National Labor Relations
Commission (NLRC) in NLRC NCR 00-09-04981-01; and its December 17, 2004 Resolution[3] denying the
motion for reconsideration.
Petitioner Tropical Biological Phils., Inc. (Tropical), a subsidiary of Lakpue Group of Companies, hired on
March 1, 1995 respondent Ma. Lourdes Belga (Belga) as bookkeeper and subsequently promoted as assistant
cashier. On March 19, 2001, Belga brought her daughter to the Philippine General Hospital (PGH) for
treatment of broncho-pneumonia. On her way to the hospital, Belga dropped by the house of Marylinda O.
Vegafria, Technical Manager of Tropical, to hand over the documents she worked on over the weekend and to
give notice of her emergency leave.
While at the PGH, Belga who was pregnant experienced labor pains and gave birth on the same day.
On March 22, 2001, or two days after giving birth, Tropical summoned Belga to report for work but the latter
replied that she could not comply because of her situation. On March 30, 2001, Tropical sent Belga another
memorandum ordering her to report for work and also informing her of the clarificatory conference scheduled
on April 2, 2001. Belga requested that the conference be moved to April 4, 2001 as her newborn was
scheduled for check-up on April 2, 2001. When Belga attended the clarificatory conference on April 4, 2001,
she was informed of her dismissal effective that day.
Belga thus filed a complaint with the Public Assistance and Complaint Unit (PACU) of the Department of Labor
and Employment (DOLE). Attempts to settle the case failed, hence the parties brought the case before the
NLRC-NCR.
Tropical, for its part, averred that it hired Belga on March 1, 1995 as a bookkeeper and later promoted to
various positions the last of which was as Treasury Assistant. Tropical claimed that this position was not
merely clerical because it included duties such as assisting the cashier in preparing deposit slips, bills
purchased, withdrawal slips, provisional receipts, incoming and outgoing bank transactions, postdated checks,
suppliers checklist and issuance of checks, authorities to debit and doing liaison work with banks.
Tropical also alleged that Belga concealed her pregnancy from the company. She did not apply for
leave and her absence disrupted Tropicals financial transactions. On March 21, 2001, it required Belga to
explain her unauthorized absence and on March 30, 2001, it informed her of a conference scheduled on April
2, 2001. Tropical claimed that Belga refused to receive the second memorandum and did not attend the
conference. She reported for work only on April 4, 2001 where she was given a chance to explain.
On April 17, 2001, Tropical terminated Belga on the following grounds: (1) Absence without official leave
for 16 days; (2) Dishonesty, for deliberately concealing her pregnancy; (3) Insubordination, for her deliberate

refusal to heed and comply with the memoranda sent by the Personnel Department on March 21 and 30, 2001
respectively.[4]
The Labor Arbiter ruled in favor of Belga and found that she was illegally dismissed, thus:
WHEREFORE, the termination of complainant is hereby declared illegal. ACCORDINGLY, she should be
reinstated with full backwages, which as of May 31, 2002, now amounts to P122, 248.71.
Ten (10%) percent of the total monetary award as attorneys fees is likewise ordered.
SO ORDERED.[5]
Tropical appealed to the NLRC, which reversed the findings of the labor arbiter in its Decision dated April
14, 2003, thus:
WHEREFORE, in the light of the foregoing, the assailed Decision is REVERSED and SET ASIDE. We thereby
render judgment:
(1)
(2)

declaring complainant-appellees dismissal valid; and

nullifying complainant-appellees monetary claims.

SO ORDERED.[6]
Upon denial of the motion for reconsideration on September 24, 2003,[7] Belga filed a petition for
certiorari with the Court of Appeals which found in favor of Belga, thus:
WHEREFORE, premises considered, the Decision promulgated on April 14, 2003 and the Resolution
promulgated on September 24, 2003 of the public respondent National Labor Relations Commission are
hereby REVERSED and SET ASIDE. The decision of the Labor Arbiter dated June 15, 2002 is hereby
REINSTATED.
SO ORDERED.[8]
Hence, Tropical filed the instant petition claiming that:
I.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR IN HOLDING THAT
RESPONDENT WAS ILLEGALLY DISMISSED.
II.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISREGARDING THE
FINDINGS OF THE NATIONAL LABOR RELATIONS COMMISSION.[9]
The petition lacks merit.
Tropicals ground for terminating Belga is her alleged concealment of pregnancy. It argues that such
non-disclosure is tantamount to dishonesty and impresses upon this Court the importance of Belgas position
and the gravity of the disruption her unexpected absence brought to the company. Tropical also charges
Belga with insubordination for refusing to comply with its directives to report for work and to explain her
absence.
Tropical cites the following paragraphs of Article 282 of the Labor Code as legal basis for terminating
Belga:

Article 282. Termination by employer. An employer may terminate an employment for any of the following
causes:
(a)
Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;
....
(c)
Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative; ....
We have defined misconduct as a transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in
judgment. The misconduct to be serious must be of such grave and aggravated character and not merely
trivial and unimportant. Such misconduct, however serious, must, nevertheless, be in connection with the
employees work to constitute just cause for his separation.[10]
In the instant case, the alleged misconduct of Belga barely falls within the situation contemplated by the
law. Her absence for 16 days was justified considering that she had just delivered a child, which can hardly be
considered a forbidden act, a dereliction of duty; much less does it imply wrongful intent on the part of Belga.
Tropical harps on the alleged concealment by Belga of her pregnancy. This argument, however, begs the
question as to how one can conceal a full-term pregnancy. We agree with respondents position that it can
hardly escape notice how she grows bigger each day. While there may be instances where the pregnancy
may be inconspicuous, it has not been sufficiently proven by Tropical that Belgas case is such.
Belgas failure to formally inform Tropical of her pregnancy can not be considered as grave misconduct directly
connected to her work as to constitute just cause for her separation.
The charge of disobedience for Belgas failure to comply with the memoranda must likewise fail.
Disobedience, as a just cause for termination, must be willful or intentional. Willfulness is characterized by a
wrongful and perverse mental attitude rendering the employees act inconsistent with proper subordination.[11]
In the instant case, the memoranda were given to Belga two days after she had given birth. It was thus
physically impossible for Belga to report for work and explain her absence, as ordered.
Tropical avers that Belgas job as Treasury Assistant is a position of responsibility since she handles
vital transactions for the company. It adds that the nature of Belgas work and the character of her duties
involved utmost trust and confidence.
Time and again, we have recognized the right of employers to dismiss employees by reason of loss of
trust and confidence. However, we emphasize that such ground is premised on the fact that the employee
concerned holds a position of responsibility or trust and confidence.[12] In order to constitute a just cause for
dismissal, the act complained of must be work-related such as would show the employee concerned to be
unfit to continue working for the employer.[13] More importantly, the loss of trust and confidence must be
based on the willful breach of the trust reposed in the employee by his employer. A breach of trust is willful if it
is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently.[14]
Belga was an assistant cashier whose primary function was to assist the cashier in such duties as
preparation of deposit slips, provisional receipts, post-dated checks, etc. As correctly observed by the Court of
Appeals, these functions are essentially clerical. For while ostensibly, the documents that Belga prepares as
Assistant Cashier pertain to her employers property, her work does not call for independent judgment or
discretion. Belga simply prepares the documents as instructed by her superiors subject to the latters
verification or approval. Hence, her position cannot be considered as one of responsibility or imbued with trust
and confidence.

Furthermore, Tropical has not satisfactorily shown how and to what extent it had suffered damages
because of Belgas absences. For while it may be true that the company was caught unprepared and unable
to hire a temporary replacement, we are not convinced that Belgas absence for 16 days has wreaked havoc
on Tropicals business as to justify her termination from the company. On the other hand, it is undisputed that
Belga has worked for Tropical for 7 years without any blemish on her service record. In fact, the company
admitted in its petition that she has rendered seven (7) years of service in compliance with [the companys]
rules.[15] And her fidelity to her work is evident because even in the midst of an emergency, she managed to
transmit to the company the documents she worked on over the weekend so that it would not cause any
problem for the company.
All told, we find that the penalty of dismissal was too harsh in light of the circumstances obtaining in this
case. While it may be true that Belga ought to have formally informed the company of her impending maternity
leave so as to give the latter sufficient time to find a temporary replacement, her termination from employment
is not commensurate to her lapse in judgment.
Even assuming that there was just cause for terminating Belga, her dismissal is nonetheless invalid for
failure of Tropical to observe the twin-notice requirement. The March 21, 2001 memorandum merely informed
her to report for work and explain her absences. The March 30, 2001 memorandum demanded that she report
for work and attend a clarificatory conference. Belga received the first memorandum but allegedly refused to
receive the second.
In Electro System Industries Corporation v. National Labor Relations Commission,[16] we held that, in
dismissing an employee, the employer has the burden of proving that the worker has been served two notices:
(1) one to apprise him of the particular acts or omissions for which his dismissal is sought, and (2) the other to
inform him of his employers decision to dismiss him. The first notice must state that the dismissal is sought for
the act or omission charged against the employee, otherwise the notice cannot be considered sufficient
compliance with the rules. It must also inform outright that an investigation will be conducted on the charges
particularized therein which, if proven, will result to his dismissal. Further, we held that a notation in the notice
that the employee refused to sign is not sufficient proof that the employer attempted to serve the notice to the
employee.
An employee who was illegally dismissed from work is entitled to reinstatement without loss of seniority
rights, and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his compensation was withheld from him up to the time of his
actual reinstatement.[17] Thus, Belga is entitled to be reinstated to her former or equivalent position and to the
payment of full backwages from the time she was illegally dismissed until her actual reinstatement.
WHEREFORE, the instant petition is DENIED. The July 28, 2004 Decision of the Court of Appeals in
CA-G.R. SP No. 80616 and its December 17, 2004 Resolution are AFFIRMED in toto.
SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

Star Paper Corp. vs. Simbol, April 12, 2006 G.R. No. 164774
SECOND DIVISION

STAR PAPER CORPORATION,

JOSEPHINE ONGSITCO &
SEBASTIAN CHUA,

G.R. No. 164774

Petitioners,

-versus-

Present:
PUNO, J., Chairman,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.

Promulgated:
RONALDO D. SIMBOL,
April 12, 2006
WILFREDA N. COMIA &
LORNA E. ESTRELLA,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
PUNO, J.:
We are called to decide an issue of first impression: whether the policy of the employer banning spouses
from working in the same company violates the rights of the employee under the Constitution and the Labor
Code or is a valid exercise of management prerogative.
At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals dated August 3, 2004 in
CA-G.R. SP No. 73477 reversing the decision of the National Labor Relations Commission (NLRC) which
affirmed the ruling of the Labor Arbiter.
Petitioner Star Paper Corporation (the company) is a corporation engaged in trading principally of
paper products. Josephine Ongsitco is its Manager of the Personnel and Administration Department while
Sebastian Chua is its Managing Director.
The evidence for the petitioners show that respondents Ronaldo D. Simbol (Simbol), Wilfreda N. Comia
(Comia) and Lorna E. Estrella (Estrella) were all regular employees of the company.[1]
Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an employee of
the company, whom he married on June 27, 1998. Prior to the marriage, Ongsitco advised the couple that
should they decide to get married, one of them should resign pursuant to a company policy promulgated in
1995,[2] viz.:
1.
New applicants will not be allowed to be hired if in case he/she has [a] relative, up to [the] 3rd
degree of relationship, already employed by the company.
2.
In case of two of our employees (both singles [sic], one male and another female) developed a
friendly relationship during the course of their employment and then decided to get married, one of them
should resign to preserve the policy stated above.[3]
Simbol resigned on June 20, 1998 pursuant to the company policy.[4]
Comia was hired by the company on February 5, 1997. She met Howard Comia, a co-employee, whom
she married on June 1, 2000. Ongsitco likewise reminded them that pursuant to company policy, one must
resign should they decide to get married. Comia resigned on June 30, 2000.[5]
Estrella was hired on July 29, 1994. She met Luisito Zuiga (Zuiga), also a co-worker. Petitioners
stated that Zuiga, a married man, got Estrella pregnant. The company allegedly could have terminated her
services due to immorality but she opted to resign on December 21, 1999.[6]

The respondents each signed a Release and Confirmation Agreement. They stated therein that they
have no money and property accountabilities in the company and that they release the latter of any claim or
demand of whatever nature.[7]
Respondents offer a different version of their dismissal. Simbol and Comia allege that they did not resign
voluntarily; they were compelled to resign in view of an illegal company policy. As to respondent Estrella, she
alleges that she had a relationship with co-worker Zuiga who misrepresented himself as a married but
separated man. After he got her pregnant, she discovered that he was not separated. Thus, she severed her
relationship with him to avoid dismissal due to the company policy. On November 30, 1999, she met an
accident and was advised by the doctor at the Orthopedic Hospital to recuperate for twenty-one (21) days. She
returned to work on December 21, 1999 but she found out that her name was on-hold at the gate. She was
denied entry. She was directed to proceed to the personnel office where one of the staff handed her a
memorandum. The memorandum stated that she was being dismissed for immoral conduct. She refused to
sign the memorandum because she was on leave for twenty-one (21) days and has not been given a chance
to explain. The management asked her to write an explanation. However, after submission of the explanation,
she was nonetheless dismissed by the company. Due to her urgent need for money, she later submitted a
letter of resignation in exchange for her thirteenth month pay.[8]
Respondents later filed a complaint for unfair labor practice, constructive dismissal, separation pay and
attorneys fees. They averred that the aforementioned company policy is illegal and contravenes Article 136 of
the Labor Code. They also contended that they were dismissed due to their union membership.
On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for lack of merit,
viz.:
[T]his company policy was decreed pursuant to what the respondent corporation perceived as management
prerogative. This management prerogative is quite broad and encompassing for it covers hiring, work
assignment, working method, time, place and manner of work, tools to be used, processes to be followed,
supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and the
discipline, dismissal and recall of workers. Except as provided for or limited by special law, an employer is free
to regulate, according to his own discretion and judgment all the aspects of employment.[9] (Citations omitted.)
On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter on January 11, 2002.
[10]
Respondents filed a Motion for Reconsideration but was denied by the NLRC in a Resolution[11] dated
August 8, 2002. They appealed to respondent court via Petition for Certiorari.
In its assailed Decision dated August 3, 2004, the Court of Appeals reversed the NLRC decision, viz.:
WHEREFORE, premises considered, the May 31, 2002 (sic)[12] Decision of the National Labor
Relations Commission is hereby REVERSED and SET ASIDE and a new one is entered as follows:
(1)
Declaring illegal, the petitioners dismissal from employment and ordering private respondents
to reinstate petitioners to their former positions without loss of seniority rights with full backwages from the time
of their dismissal until actual reinstatement; and
(2)
Ordering private respondents to pay petitioners attorneys fees amounting to 10% of the award
and the cost of this suit.[13]

On appeal to this Court, petitioners contend that the Court of Appeals erred in holding that:
1.
X X X THE SUBJECT 1995 POLICY/REGULATION IS VIOLATIVE OF THE CONSTITUTIONAL
RIGHTS TOWARDS MARRIAGE AND THE FAMILY OF EMPLOYEES AND OF ARTICLE 136 OF THE
LABOR CODE; AND
2.

X X X RESPONDENTS RESIGNATIONS WERE FAR FROM VOLUNTARY.[14]

We affirm.
The 1987 Constitution[15] states our policy towards the protection of labor under the following provisions, viz.:
Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect the
rights of workers and promote their welfare.
xxx
Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth.
The Civil Code likewise protects labor with the following provisions:
Art. 1700.
The relation between capital and labor are not merely contractual. They are so impressed
with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject
to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
Art. 1702.
In case of doubt, all labor legislation and all labor contracts shall be construed in favor of
the safety and decent living for the laborer.
The Labor Code is the most comprehensive piece of legislation protecting labor. The case at bar
involves Article 136 of the Labor Code which provides:
Art. 136.
It shall be unlawful for an employer to require as a condition of employment or
continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly
that upon getting married a woman employee shall be deemed resigned or separated, or to actually dismiss,
discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
Respondents submit that their dismissal violates the above provision. Petitioners allege that its policy may
appear to be contrary to Article 136 of the Labor Code but it assumes a new meaning if read together with the
first paragraph of the rule. The rule does not require the woman employee to resign. The employee spouses
have the right to choose who between them should resign. Further, they are free to marry persons other than
co-employees. Hence, it is not the marital status of the employee, per se, that is being discriminated. It is only
intended to carry out its no-employment-for-relatives-within-the-third-degree-policy which is within the ambit of
the prerogatives of management.[16]
It is true that the policy of petitioners prohibiting close relatives from working in the same company takes
the nature of an anti-nepotism employment policy. Companies adopt these policies to prevent the hiring of
unqualified persons based on their status as a relative, rather than upon their ability.[17] These policies focus
upon the potential employment problems arising from the perception of favoritism exhibited towards relatives.
With more women entering the workforce, employers are also enacting employment policies specifically
prohibiting spouses from working for the same company. We note that two types of employment policies
involve spouses: policies banning only spouses from working in the same company (no-spouse employment
policies), and those banning all immediate family members, including spouses, from working in the same
company (anti-nepotism employment policies).[18]

Unlike in our jurisdiction where there is no express prohibition on marital discrimination,[19] there are
twenty state statutes[20] in the United States prohibiting marital discrimination. Some state courts[21] have
been confronted with the issue of whether no-spouse policies violate their laws prohibiting both marital status
and sex discrimination.
In challenging the anti-nepotism employment policies in the United States, complainants utilize two
theories of employment discrimination: the disparate treatment and the disparate impact. Under the disparate
treatment analysis, the plaintiff must prove that an employment policy is discriminatory on its face. No-spouse
employment policies requiring an employee of a particular sex to either quit, transfer, or be fired are facially
discriminatory. For example, an employment policy prohibiting the employer from hiring wives of male
employees, but not husbands of female employees, is discriminatory on its face.[22]
On the other hand, to establish disparate impact, the complainants must prove that a facially neutral
policy has a disproportionate effect on a particular class. For example, although most employment policies do
not expressly indicate which spouse will be required to transfer or leave the company, the policy often
disproportionately affects one sex.[23]
The state courts rulings on the issue depend on their interpretation of the scope of marital status
discrimination within the meaning of their respective civil rights acts. Though they agree that the term marital
status encompasses discrimination based on a person's status as either married, single, divorced, or
widowed, they are divided on whether the term has a broader meaning. Thus, their decisions vary.[24]
The courts narrowly[25] interpreting marital status to refer only to a person's status as married, single,
divorced, or widowed reason that if the legislature intended a broader definition it would have either chosen
different language or specified its intent. They hold that the relevant inquiry is if one is married rather than to
whom one is married. They construe marital status discrimination to include only whether a person is single,
married, divorced, or widowed and not the identity, occupation, and place of employment of one's spouse.
These courts have upheld the questioned policies and ruled that they did not violate the marital status
discrimination provision of their respective state statutes.
The courts that have broadly[26] construed the term marital status rule that it encompassed the
identity, occupation and employment of one's spouse. They strike down the no-spouse employment policies
based on the broad legislative intent of the state statute. They reason that the no-spouse employment policy
violate the marital status provision because it arbitrarily discriminates against all spouses of present employees
without regard to the actual effect on the individual's qualifications or work performance.[27] These courts also
find the no-spouse employment policy invalid for failure of the employer to present any evidence of business
necessity other than the general perception that spouses in the same workplace might adversely affect the
business.[28] They hold that the absence of such a bona fide occupational qualification[29] invalidates a rule
denying employment to one spouse due to the current employment of the other spouse in the same office.[30]
Thus, they rule that unless the employer can prove that the reasonable demands of the business require a
distinction based on marital status and there is no better available or acceptable policy which would better
accomplish the business purpose, an employer may not discriminate against an employee based on the
identity of the employees spouse.[31] This is known as the bona fide occupational qualification exception.
We note that since the finding of a bona fide occupational qualification justifies an employers no-spouse
rule, the exception is interpreted strictly and narrowly by these state courts. There must be a compelling
business necessity for which no alternative exists other than the discriminatory practice.[32] To justify a bona
fide occupational qualification, the employer must prove two factors: (1) that the employment qualification is
reasonably related to the essential operation of the job involved; and, (2) that there is a factual basis for
believing that all or substantially all persons meeting the qualification would be unable to properly perform the
duties of the job.[33]
The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the
standard of reasonableness of the company policy which is parallel to the bona fide occupational qualification
requirement. In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo
Wellcome Philippines, Inc.,[34] we passed on the validity of the policy of a pharmaceutical company prohibiting

its employees from marrying employees of any competitor company. We held that Glaxo has a right to guard
its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and
information from competitors. We considered the prohibition against personal or marital relationships with
employees of competitor companies upon Glaxos employees reasonable under the circumstances because
relationships of that nature might compromise the interests of Glaxo. In laying down the assailed company
policy, we recognized that Glaxo only aims to protect its interests against the possibility that a competitor
company will gain access to its secrets and procedures.[35]
The requirement that a company policy must be reasonable under the circumstances to qualify as a valid
exercise of management prerogative was also at issue in the 1997 case of Philippine Telegraph and
Telephone Company v. NLRC.[36] In said case, the employee was dismissed in violation of petitioners policy
of disqualifying from work any woman worker who contracts marriage. We held that the company policy
violates the right against discrimination afforded all women workers under Article 136 of the Labor Code, but
established a permissible exception, viz.:
[A] requirement that a woman employee must remain unmarried could be justified as a bona fide
occupational qualification, or BFOQ, where the particular requirements of the job would justify the same, but
not on the ground of a general principle, such as the desirability of spreading work in the workplace. A
requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for
satisfactory job performance.[37] (Emphases supplied.)
The cases of Duncan and PT&T instruct us that the requirement of reasonableness must be clearly established
to uphold the questioned employment policy. The employer has the burden to prove the existence of a
reasonable business necessity. The burden was successfully discharged in Duncan but not in PT&T.
We do not find a reasonable business necessity in the case at bar.
Petitioners sole contention that the company did not just want to have two (2) or more of its employees
related between the third degree by affinity and/or consanguinity[38] is lame. That the second paragraph was
meant to give teeth to the first paragraph of the questioned rule[39] is evidently not the valid reasonable
business necessity required by the law.
It is significant to note that in the case at bar, respondents were hired after they were found fit for the job, but
were asked to resign when they married a co-employee. Petitioners failed to show how the marriage of Simbol,
then a Sheeting Machine Operator, to Alma Dayrit, then an employee of the Repacking Section, could be
detrimental to its business operations. Neither did petitioners explain how this detriment will happen in the case
of Wilfreda Comia, then a Production Helper in the Selecting Department, who married Howard Comia, then a
helper in the cutter-machine.

The policy is premised on the mere fear that employees married to each other
will be less efficient.
If we uphold the questioned rule without valid justification, the employer can create policies based on an
unproven presumption of a perceived danger at the expense of an employees right to security of tenure.
Petitioners contend that their policy will apply only when one employee marries a co-employee, but they are
free to marry persons other than co-employees. The questioned policy may not facially violate Article 136 of
the Labor Code but it creates a disproportionate effect and under the disparate impact theory, the only way it
could pass judicial scrutiny is a showing that it is reasonable despite the discriminatory, albeit disproportionate,
effect. The failure of petitioners to prove a legitimate business concern in imposing the questioned policy
cannot prejudice the employees right to be free from arbitrary discrimination based upon stereotypes of
married persons working together in one company.[40]
Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot benefit the
petitioners. The protection given to labor in our jurisdiction is vast and extensive that we cannot prudently draw
inferences from the legislatures silence[41] that married persons are not protected under our Constitution and
declare valid a policy based on a prejudice or stereotype. Thus, for failure of petitioners to present undisputed

proof of a reasonable business necessity, we rule that the questioned policy is an invalid exercise of
management prerogative. Corollarily, the issue as to whether respondents Simbol and Comia resigned
voluntarily has become moot and academic.
As to respondent Estrella, the Labor Arbiter and the NLRC based their ruling on the singular fact that her
resignation letter was written in her own handwriting. Both ruled that her resignation was voluntary and thus
valid. The respondent court failed to categorically rule whether Estrella voluntarily resigned but ordered that
she be reinstated along with Simbol and Comia.
Estrella claims that she was pressured to submit a resignation letter because she was in dire need of money.
We examined the records of the case and find Estrellas contention to be more in accord with the evidence.
While findings of fact by administrative tribunals like the NLRC are generally given not only respect but, at
times, finality, this rule admits of exceptions,[42] as in the case at bar.
Estrella avers that she went back to work on December 21, 1999 but was dismissed due to her alleged
immoral conduct. At first, she did not want to sign the termination papers but she was forced to tender her
resignation letter in exchange for her thirteenth month pay.
The contention of petitioners that Estrella was pressured to resign because she got impregnated by a married
man and she could not stand being looked upon or talked about as immoral[43] is incredulous. If she really
wanted to avoid embarrassment and humiliation, she would not have gone back to work at all. Nor would she
have filed a suit for illegal dismissal and pleaded for reinstatement. We have held that in voluntary resignation,
the employee is compelled by personal reason(s) to dissociate himself from employment. It is done with the
intention of relinquishing an office, accompanied by the act of abandonment. [44] Thus, it is illogical for Estrella
to resign and then file a complaint for illegal dismissal. Given the lack of sufficient evidence on the part of
petitioners that the resignation was voluntary, Estrellas dismissal is declared illegal.
IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No. 73477 dated August 3, 2004 is
AFFIRMED.
SO ORDERED.

REYNATO S. PUNO
Associate Justice
Duncan Association vs. Glaxo Welcome Philippines, G.R. No. 162994, September 17, 2004
SECOND DIVISION
[G.R. No. 162994. September 17, 2004]
DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners, vs. GLAXO
WELLCOME PHILIPPINES, INC. respondent.
RESOLUTION
TINGA, J.:
Confronting the Court in this petition is a novel question, with constitutional overtones, involving the validity of
the policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor
company.
This is a Petition for Review on Certiorari assailing the Decision[1] dated May 19, 2003 and the Resolution
dated March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.[2]
Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as
medical representative on October 24, 1995, after Tecson had undergone training and orientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to study
and abide by existing company rules; to disclose to management any existing or future relationship by
consanguinity or affinity with co-employees or employees of competing drug companies and should
management find that such relationship poses a possible conflict of interest, to resign from the company.
The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform
management of any existing or future relationship by consanguinity or affinity with co-employees or employees
of competing drug companies. If management perceives a conflict of interest or a potential conflict between
such relationship and the employees employment with the company, the management and the employee will
explore the possibility of a transfer to another department in a non-counterchecking position or preparation for
employment outside the company after six months.
Tecson was initially assigned to market Glaxos products in the Camarines Sur-Camarines Norte sales area.
Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra
Pharmaceuticals[3] (Astra), a competitor of Glaxo. Bettsy was Astras Branch Coordinator in Albay. She
supervised the district managers and medical representatives of her company and prepared marketing
strategies for Astra in that area.
Even before they got married, Tecson received several reminders from his District Manager regarding the
conflict of interest which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married
Bettsy in September 1998.
In January 1999, Tecsons superiors informed him that his marriage to Bettsy gave rise to a conflict of interest.
Tecsons superiors reminded him that he and Bettsy should decide which one of them would resign from their
jobs, although they told him that they wanted to retain him as much as possible because he was performing his
job well.
Tecson requested for time to comply with the company policy against entering into a relationship with an
employee of a competitor company. He explained that Astra, Bettsys employer, was planning to merge with
Zeneca, another drug company; and Bettsy was planning to avail of the redundancy package to be offered by
Astra. With Bettsys separation from her company, the potential conflict of interest would be eliminated. At the
same time, they would be able to avail of the attractive redundancy package from Astra.
In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson
applied for a transfer in Glaxos milk division, thinking that since Astra did not have a milk division, the potential
conflict of interest would be eliminated. His application was denied in view of Glaxos least-movementpossible policy.
In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales area.
Tecson asked Glaxo to reconsider its decision, but his request was denied.
Tecson sought Glaxos reconsideration regarding his transfer and brought the matter to Glaxos Grievance
Committee. Glaxo, however, remained firm in its decision and gave Tescon until February 7, 2000 to comply
with the transfer order. Tecson defied the transfer order and continued acting as medical representative in the
Camarines Sur-Camarines Norte sales area.
During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued samples of
products which were competing with similar products manufactured by Astra. He was also not included in
product conferences regarding such products.
Because the parties failed to resolve the issue at the grievance machinery level, they submitted the matter for
voluntary arbitration. Glaxo offered Tecson a separation pay of one-half () month pay for every year of
service, or a total of P50,000.00 but he declined the offer. On November 15, 2000, the National Conciliation
and Mediation Board (NCMB) rendered its Decision declaring as valid Glaxos policy on relationships between

its employees and persons employed with competitor companies, and affirming Glaxos right to transfer
Tecson to another sales territory.
Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision.
On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on the ground
that the NCMB did not err in rendering its Decision. The appellate court held that Glaxos policy prohibiting its
employees from having personal relationships with employees of competitor companies is a valid exercise of
its management prerogatives.[4]
Tecson filed a Motion for Reconsideration of the appellate courts Decision, but the motion was denied by the
appellate court in its Resolution dated March 26, 2004.[5]
Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the NCMBs
finding that the Glaxos policy prohibiting its employees from marrying an employee of a competitor company is
valid; and (ii) the Court of Appeals also erred in not finding that Tecson was constructively dismissed when he
was transferred to a new sales territory, and deprived of the opportunity to attend products seminars and
training sessions.[6]
Petitioners contend that Glaxos policy against employees marrying employees of competitor companies
violates the equal protection clause of the Constitution because it creates invalid distinctions among
employees on account only of marriage. They claim that the policy restricts the employees right to marry.[7]
They also argue that Tecson was constructively dismissed as shown by the following circumstances: (1) he
was transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan sales
area, (2) he suffered a diminution in pay, (3) he was excluded from attending seminars and training sessions
for medical representatives, and (4) he was prohibited from promoting respondents products which were
competing with Astras products.[8]
In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from having a
relationship with and/or marrying an employee of a competitor company is a valid exercise of its management
prerogatives and does not violate the equal protection clause; and that Tecsons reassignment from the
Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City and Agusan del Sur sales area
does not amount to constructive dismissal.[9]
Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has a
genuine interest in ensuring that its employees avoid any activity, relationship or interest that may conflict with
their responsibilities to the company. Thus, it expects its employees to avoid having personal or family
interests in any competitor company which may influence their actions and decisions and consequently deprive
Glaxo of legitimate profits. The policy is also aimed at preventing a competitor company from gaining access
to its secrets, procedures and policies.[10]
It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future
relationships with employees of competitor companies, and is therefore not violative of the equal protection
clause. It maintains that considering the nature of its business, the prohibition is based on valid grounds.[11]
According to Glaxo, Tecsons marriage to Bettsy, an employee of Astra, posed a real and potential conflict of
interest. Astras products were in direct competition with 67% of the products sold by Glaxo. Hence, Glaxos
enforcement of the foregoing policy in Tecsons case was a valid exercise of its management prerogatives.[12]
In any case, Tecson was given several months to remedy the situation, and was even encouraged not to
resign but to ask his wife to resign from Astra instead.[13]
Glaxo also points out that Tecson can no longer question the assailed company policy because when he
signed his contract of employment, he was aware that such policy was stipulated therein. In said contract, he
also agreed to resign from respondent if the management finds that his relationship with an employee of a
competitor company would be detrimental to the interests of Glaxo.[14]

Glaxo likewise insists that Tecsons reassignment to another sales area and his exclusion from seminars
regarding respondents new products did not amount to constructive dismissal.
It claims that in view of Tecsons refusal to resign, he was relocated from the Camarines Sur-Camarines Norte
sales area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo asserts that in effecting the
reassignment, it also considered the welfare of Tecsons family. Since Tecsons hometown was in Agusan del
Sur and his wife traces her roots to Butuan City, Glaxo assumed that his transfer from the Bicol region to the
Butuan City sales area would be favorable to him and his family as he would be relocating to a familiar territory
and minimizing his travel expenses.[15]
In addition, Glaxo avers that Tecsons exclusion from the seminar concerning the new anti-asthma drug was
due to the fact that said product was in direct competition with a drug which was soon to be sold by Astra, and
hence, would pose a potential conflict of interest for him. Lastly, the delay in Tecsons receipt of his sales
paraphernalia was due to the mix-up created by his refusal to transfer to the Butuan City sales area (his
paraphernalia was delivered to his new sales area instead of Naga City because the supplier thought he
already transferred to Butuan).[16]
The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling that
Glaxos policy against its employees marrying employees from competitor companies is valid, and in not
holding that said policy violates the equal protection clause of the Constitution; (2) Whether Tecson was
constructively dismissed.
The Court finds no merit in the petition.
The stipulation in Tecsons contract of employment with Glaxo being questioned by petitioners provides:

10. You agree to disclose to management any existing or future relationship you may have, either by
consanguinity or affinity with co-employees or employees of competing drug companies. Should it pose a
possible conflict of interest in management discretion, you agree to resign voluntarily from the Company as a
matter of Company policy.
[17]
The same contract also stipulates that Tecson agrees to abide by the existing company rules of Glaxo, and to
study and become acquainted with such policies.[18] In this regard, the Employee Handbook of Glaxo
expressly informs its employees of its rules regarding conflict of interest:
1. Conflict of Interest
Employees should avoid any activity, investment relationship, or interest that may run counter to the
responsibilities which they owe Glaxo Wellcome.
Specifically, this means that employees are expected:
a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier or other
businesses which may consciously or unconsciously influence their actions or decisions and thus deprive
Glaxo Wellcome of legitimate profit.
b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to advance their
outside personal interests, that of their relatives, friends and other businesses.
c. To avoid outside employment or other interests for income which would impair their effective job
performance.

d. To consult with Management on such activities or relationships that may lead to conflict of interest.
1.1. Employee Relationships
Employees with existing or future relationships either by consanguinity or affinity with co-employees of
competing drug companies are expected to disclose such relationship to the Management. If management
perceives a conflict or potential conflict of interest, every effort shall be made, together by management and
the employee, to arrive at a solution within six (6) months, either by transfer to another department in a noncounter checking position, or by career preparation toward outside employment after Glaxo Wellcome.
Employees must be prepared for possible resignation within six (6) months, if no other solution is feasible.[19]
No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxos policy prohibiting an
employee from having a relationship with an employee of a competitor company is a valid exercise of
management prerogative.
Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other
confidential programs and information from competitors, especially so that it and Astra are rival companies in
the highly competitive pharmaceutical industry.
The prohibition against personal or marital relationships with employees of competitor companies upon Glaxos
employees is reasonable under the circumstances because relationships of that nature might compromise the
interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests
against the possibility that a competitor company will gain access to its secrets and procedures.
That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the
Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to
reasonable returns on investments and to expansion and growth.[20] Indeed, while our laws endeavor to give
life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor
dispute will be decided in favor of the workers. The law also recognizes that management has rights which are
also entitled to respect and enforcement in the interest of fair play.[21]
As held in a Georgia, U.S.A case,[22] it is a legitimate business practice to guard business confidentiality and
protect a competitive position by even-handedly disqualifying from jobs male and female applicants or
employees who are married to a competitor. Consequently, the court ruled than an employer that discharged
an employee who was married to an employee of an active competitor did not violate Title VII of the Civil
Rights Act of 1964.[23] The Court pointed out that the policy was applied to men and women equally, and
noted that the employers business was highly competitive and that gaining inside information would constitute
a competitive advantage.
The challenged company policy does not violate the equal protection clause of the Constitution as petitioners
erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed
only to the state or those acting under color of its authority.[24] Corollarily, it has been held in a long array of
U.S. Supreme Court decisions that the equal protection clause erects no shield against merely private conduct,
however, discriminatory or wrongful.[25] The only exception occurs when the state[26] in any of its
manifestations or actions has been found to have become entwined or involved in the wrongful private
conduct.[27] Obviously, however, the exception is not present in this case. Significantly, the company actually
enforced the policy after repeated requests to the employee to comply with the policy. Indeed, the application
of the policy was made in an impartial and even-handed manner, with due regard for the lot of the employee.
In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear
that Glaxo does not impose an absolute prohibition against relationships between its employees and those of
competitor companies. Its employees are free to cultivate relationships with and marry persons of their own
choosing. What the company merely seeks to avoid is a conflict of interest between the employee and the
company that may arise out of such relationships. As succinctly explained by the appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company remains free to
marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that belongs
only to the individual. However, an employees personal decision does not detract the employer from
exercising management prerogatives to ensure maximum profit and business success. . . [28]
The Court of Appeals also correctly noted that the assailed company policy which forms part of respondents
Employee Code of Conduct and of its contracts with its employees, such as that signed by Tecson, was made
known to him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his
employment contract and when he entered into a relationship with Bettsy. Since Tecson knowingly and
voluntarily entered into a contract of employment with Glaxo, the stipulations therein have the force of law
between them and, thus, should be complied with in good faith.[29] He is therefore estopped from questioning
said policy.
The Court finds no merit in petitioners contention that Tecson was constructively dismissed when he was
transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-Agusan del
Sur sales area, and when he was excluded from attending the companys seminar on new products which
were directly competing with similar products manufactured by Astra. Constructive dismissal is defined as a
quitting, an involuntary resignation resorted to when continued employment becomes impossible,
unreasonable, or unlikely; when there is a demotion in rank or diminution in pay; or when a clear
discrimination, insensibility or disdain by an employer becomes unbearable to the employee.[30] None of these
conditions are present in the instant case. The record does not show that Tecson was demoted or unduly
discriminated upon by reason of such transfer. As found by the appellate court, Glaxo properly exercised its
management prerogative in reassigning Tecson to the Butuan City sales area:
. . . In this case, petitioners transfer to another place of assignment was merely in keeping with the policy of
the company in avoidance of conflict of interest, and thus validNote that [Tecsons] wife holds a sensitive
supervisory position as Branch Coordinator in her employer-company which requires her to work in close
coordination with District Managers and Medical Representatives. Her duties include monitoring sales of Astra
products, conducting sales drives, establishing and furthering relationship with customers, collection,
monitoring and managing Astras inventoryshe therefore takes an active participation in the market war
characterized as it is by stiff competition among pharmaceutical companies. Moreover, and this is significant,
petitioners sales territory covers Camarines Sur and Camarines Norte while his wife is supervising a branch of
her employer in Albay. The proximity of their areas of responsibility, all in the same Bicol Region, renders the
conflict of interest not only possible, but actual, as learning by one spouse of the others market strategies in
the region would be inevitable. [Managements] appreciation of a conflict of interest is therefore not merely
illusory and wanting in factual basis[31]
In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission,[32] which involved a complaint
filed by a medical representative against his employer drug company for illegal dismissal for allegedly
terminating his employment when he refused to accept his reassignment to a new area, the Court upheld the
right of the drug company to transfer or reassign its employee in accordance with its operational demands and
requirements. The ruling of the Court therein, quoted hereunder, also finds application in the instant case:
By the very nature of his employment, a drug salesman or medical representative is expected to travel. He
should anticipate reassignment according to the demands of their business. It would be a poor drug
corporation which cannot even assign its representatives or detail men to new markets calling for opening or
expansion or to areas where the need for pushing its products is great. More so if such reassignments are part
of the employment contract.[33]
As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for a
long period of time. In the case at bar, the record shows that Glaxo gave Tecson several chances to eliminate
the conflict of interest brought about by his relationship with Bettsy. When their relationship was still in its initial
stage, Tecsons supervisors at Glaxo constantly reminded him about its effects on his employment with the
company and on the companys interests. After Tecson married Bettsy, Glaxo gave him time to resolve the
conflict by either resigning from the company or asking his wife to resign from Astra. Glaxo even expressed its
desire to retain Tecson in its employ because of his satisfactory performance and suggested that he ask Bettsy

to resign from her company instead. Glaxo likewise acceded to his repeated requests for more time to resolve
the conflict of interest. When the problem could not be resolved after several years of waiting, Glaxo was
constrained to reassign Tecson to a sales area different from that handled by his wife for Astra. Notably, the
Court did not terminate Tecson from employment but only reassigned him to another area where his home
province, Agusan del Sur, was included. In effecting Tecsons transfer, Glaxo even considered the welfare of
Tecsons family. Clearly, the foregoing dispels any suspicion of unfairness and bad faith on the part of
Glaxo.[34]
WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.
SO ORDERED.
Austria-Martinez and Callejo, Sr., JJ., concur.
Puno (Chairman), J., in the result.
Chico-Nazario, J., on leave.

Domingo vs. Rayala, 546 SCRA 90

THIRD DIVISION
MA. LOURDES T. DOMINGO,
Petitioner,
- versus ROGELIO I. RAYALA,
Respondent.
x-------------------------x
ROGELIO I. RAYALA,
Petitioner,
- versus OFFICE OF THE PRESIDENT; RONALDO V. ZAMORA, in his capacity as Executive Secretary; ROY V.
SENERES, in his capacity as Chairman of the National Labor Relations Commission (in lieu of RAUL T.
AQUINO, in his capacity as Acting Chairman of the National labor Relations Commission); and MA. LOURDES
T. DOMINGO,
Respondents.
x-------------------------x
The REPUBLIC OF THE PHILIPPINES, represented by the OFFICE OF THE PRESIDENT; and ALBERTO G.
ROMULO, in his capacity as Executive Secretary,
Petitioners,

- versus -

ROGELIO I. RAYALA,
Respondent.
G.R. No. 155831

G.R. No. 155840

G.R. No. 158700

Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.
Promulgated:
February 18, 2008
x------------------------------------------------------------------------------------x

DECISION
NACHURA, J.:

Sexual harassment is an imposition of misplaced superiority which is enough to dampen an employees spirit
and her capacity for advancement. It affects her sense of judgment; it changes her life.[1]
Before this Court are three Petitions for Review on Certiorari assailing the October 18, 2002 Resolution of the
CAs Former Ninth Division[2] in CA-G.R. SP No. 61026. The Resolution modified the December 14, 2001
Decision[3] of the Court of Appeals Eleventh Division, which had affirmed the Decision of the Office of the
President (OP) dismissing from the service then National Labor Relations Commission (NLRC) Chairman
Rogelio I. Rayala (Rayala) for disgraceful and immoral conduct.
All three petitions stem from the same factual antecedents.

On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then Stenographic Reporter III at the NLRC, filed
a Complaint for sexual harassment against Rayala before Secretary Bienvenido Laguesma of the Department
of Labor and Employment (DOLE).
To support the Complaint, Domingo executed an Affidavit narrating the incidences of sexual harassment
complained of, thus:
xxxx
4.
Sa simula ay pabulong na sinasabihan lang ako ni Chairman Rayala ng mga salitang Lot, gumaganda
ka yata?
5.
Sa ibang mga pagkakataon nilalapitan na ako ni Chairman at hahawakan ang aking balikat sabay pisil
sa mga ito habang ako ay nagta-type at habang nagbibigay siya ng diktasyon. Sa mga pagkakataong ito,
kinakabahan ako. Natatakot na baka mangyari sa akin ang mga napapabalitang insidente na nangyari na
noon tungkol sa mga sekretarya niyang nagbitiw gawa ng mga mahahalay na panghihipo ni Chairman.
6.
Noong ika-10 ng Setyembre, 1998, nang ako ay nasa 8th Floor, may nagsabi sa akin na kailangan
akong bumaba sa 7th Floor kung nasaan ang aming opisina dahil sa may koreksyon daw na gagawin sa mga
papel na tinayp ko. Bumaba naman ako para gawin ito. Habang ginagawa ko ito, lumabas si Chairman
Rayala sa silid ni Mr. Alex Lopez. Inutusan ako ni Chairman na sumunod sa kaniyang silid. Nang nasa silid
na kami, sinabi niya sa akin:
Chairman:

Lot, I like you a lot. Naiiba ka sa lahat.

At pagkatapos ako ay kaniyang inusisa tungkol sa mga personal na bagay sa aking buhay. Ang ilan
dito ay tungkol sa aking mga magulang, kapatid, pag-aaral at kung may boyfriend na raw ba ako.
Chairman: May boyfriend ka na ba?
Lourdes:
Dati nagkaroon po.
Chairman: Nasaan na siya?
Lourdes:
Nag-asawa na ho.
Chairman: Bakit hindi kayo nagkatuluyan?
Lourdes:
Nainip po.
Chairman: Pagkatapos mo ng kurso mo ay kumuha ka ng Law at ako ang bahala sa iyo, hanggang ako pa
ang Chairman dito.
Pagkatapos ay kumuha siya ng pera sa kaniyang amerikana at inaabot sa akin.
Chairman:
Lourdes:
Chairman:

Kuhanin mo ito.
Huwag na ho hindi ko kailangan.
Hindi sige, kuhanin mo. Ayusin mo ang dapat ayusin.

Tinanggap ko po ang pera ng may pag-aalinlangan. Natatakot at kinakabahan na kapag hindi ko

tinanggap ang pera ay baka siya magagalit kasabay na rito ang pagtapon sa akin kung saan-saan opisina o
kaya ay tanggalin ako sa posisyon.
Chairman:
Lourdes:
Chairman:
kanila.

Paglabas mo itago mo ang pera. Ayaw ko ng may makaka-alam nito. Just the two of us.
Bakit naman, Sir?
Basta. Maraming tsismosa diyan sa labas. But I dont give them a damn. Hindi ako mamatay sa

Tumayo na ako at lumabas. Pumanhik na ako ng 8th Floor at pumunta ako sa officemate ko na si
Agnes Magdaet. Ikinwento ko ang nangyari sa akin sa opisina ni Chairman. Habang kinikwento ko ito kay
Agnes ay binilang namin ang pera na nagkakahalaga ng tatlong libong piso (PHP 3,000). Sinabi ni Agnes na
isauli ko raw ang pera, pero ang sabi ko ay natatakot ako baka magalit si Sir. Nagsabi agad kami kay EC

Perlita Velasco at sinalaysay ko ang nangyari. Sinabi niya na isauli ko ang pera at noong araw ding iyon ay
nagpasiya akong isauli na nga ito ngunit hindi ako nagkaroon ng pagkakataon dahil marami siyang naging
bisita. Isinauli ko nga ang pera noong Lunes, Setyembre 14, 1998.
7.
Noong huling linggo ng Setyembre, 1998, ay may tinanong din sa akin si Chairman Rayala na hindi ko
masikmura, at sa aking palagay at tahasang pambabastos sa akin.
Chairman:
Lourdes:
Chairman:
Lourdes:
Chairman:
Lourdes:
Chairman:
Lourdes:
Chairman:

Lot, may ka live-in ka ba?

Sir, wala po.
Bakit malaki ang balakang mo?
Kayo, Sir ha! Masama sa amin ang may ka live-in.
Bakit, ano ba ang relihiyon ninyo?
Catholic, Sir. Kailangan ikasal muna.
Bakit ako, hindi kasal.
Sir, di magpakasal kayo.
Huh. Ibahin na nga natin ang usapan.

8.
Noong Oktubre 29, 1998, ako ay pumasok sa kwarto ni Chairman Rayala. Ito ay sa kadahilanang ang
fax machine ay nasa loob ng kaniyang kwarto. Ang nag-aasikaso nito, si Riza Ocampo, ay naka-leave kaya
ako ang nag-asikaso nito noong araw na iyon. Nang mabigyan ko na ng fax tone yung kausap ko, pagharap
ko sa kanan ay nakaharang sa dadaanan ko si Chairman Rayala. Tinitingnan ako sa mata at ang titig niya ay
umuusad mula ulo hanggang dibdib tapos ay ngumiti na may mahalay na pakahulugan.
9.
Noong hapon naman ng pareho pa ring petsa, may nag-aapply na sekretarya sa opisina, sinabi ko ito
kay Chairman Rayala:
Lourdes:
Chairman:
Chairman:

Sir, si Pinky po yung applicant, mag-papainterview po yata sa inyo.

Sabihin mo magpa-pap smear muna siya
O sige, i-refer mo kay Alex. (Alex Lopez, Chief of Staff).

10.
Noong Nobyembre 9, 1998, ako ay tinawag ni Chairman Rayala sa kaniyang opisina upang kuhanin ko
ang diktasyon niya para kay ELA Oscar Uy. Hindi pa kami nakakatapos ng unang talata, may pumasok na
bisita si Chairman, si Baby Pangilinan na sinamahan ni Riza Ocampo. Pinalabas muna ako ni Chairman.
Nang maka-alis na si Ms. Pangilinan, pinapasok na niya ako ulit. Umupo ako. Lumapit sa likuran ko si
Chairman, hinawakan ang kaliwang balikat ko na pinipisil ng kanang kamay niya at sinabi:
Chairman:

Saan na ba tayo natapos?

Palakad-lakad siya sa aking likuran habang nag-didikta. Huminto siya pagkatapos, at nilagay niya ang
kanang kamay niya sa aking kanang balikat at pinisil-pisil ito pagkatapos ay pinagapang niya ito sa kanang
bahagi ng aking leeg, at pinagapang hanggang kanang tenga at saka kiniliti. Dito ko inalis ang kaniyang
kamay sa pamamagitan ng aking kaliwang kamay. At saka ko sinabi:
Lourdes:

Sir, yung kamay ninyo alisin niyo!

Natapos ko rin ang liham na pinagagawa niya pero halos hindi ko na maintindihan ang na-isulat ko
dahil sa takot at inis na nararamdaman ko.[4]

After the last incident narrated, Domingo filed for leave of absence and asked to be immediately transferred.
Thereafter, she filed the Complaint for sexual harassment on the basis of Administrative Order No. 250, the
Rules and Regulations Implementing RA 7877 in the Department of Labor and Employment.
Upon receipt of the Complaint, the DOLE Secretary referred the Complaint to the OP, Rayala being a
presidential appointee. The OP, through then Executive Secretary Ronaldo Zamora, ordered Secretary
Laguesma to investigate the allegations in the Complaint and create a committee for such purpose. On

December 4, 1998, Secretary Laguesma issued Administrative Order (AO) No. 280, Series of 1998,[5]
constituting a Committee on Decorum and Investigation (Committee) in accordance with Republic Act (RA)
7877, the Anti-Sexual Harassment Act of 1995.[6]
The Committee heard the parties and received their respective evidence. On March 2, 2000, the Committee
submitted its report and recommendation to Secretary Laguesma. It found Rayala guilty of the offense charged
and recommended the imposition of the minimum penalty provided under AO 250, which it erroneously stated
as suspension for six (6) months.
The following day, Secretary Laguesma submitted a copy of the Committee Report and Recommendation to
the OP, but with the recommendation that the penalty should be suspension for six (6) months and one (1)
day, in accordance with AO 250.
On May 8, 2000, the OP, through Executive Secretary Zamora, issued AO 119,[7] the pertinent portions of
which read:
Upon a careful scrutiny of the evidence on record, I concur with the findings of the Committee as to the
culpability of the respondent [Rayala], the same having been established by clear and convincing evidence.
However, I disagree with the recommendation that respondent be meted only the penalty of suspension for six
(6) months and one (1) day considering the circumstances of the case.
What aggravates respondents situation is the undeniable circumstance that he took advantage of his position
as the superior of the complainant. Respondent occupies the highest position in the NLRC, being its Chairman.
As head of said office, it was incumbent upon respondent to set an example to the others as to how they
should conduct themselves in public office, to see to it that his subordinates work efficiently in accordance with
Civil Service Rules and Regulations, and to provide them with healthy working atmosphere wherein co-workers
treat each other with respect, courtesy and cooperation, so that in the end the public interest will be benefited
(City Mayor of Zamboanga vs. Court of Appeals, 182 SCRA 785 [1990]).
What is more, public service requires the utmost integrity and strictest discipline (Gano vs. Leonen, 232 SCRA
99 [1994]). Thus, a public servant must exhibit at all times the highest sense of honesty and integrity, and
utmost devotion and dedication to duty (Sec. 4 (g), RA 6713), respect the rights of others and shall refrain
from doing acts contrary to law, and good morals (Sec. 4(c)). No less than the Constitution sanctifies the
principle that a public office is a public trust, and enjoins all public officers and employees to serve with the
highest degree of responsibility, integrity, loyalty and efficiency (Section 1, Article XI, 1987 Constitution).
Given these established standards, I see respondents acts not just [as] a failure to give due courtesy and
respect to his co-employees (subordinates) or to maintain good conduct and behavior but defiance of the basic
norms or virtues which a government official must at all times uphold, one that is contrary to law and public
sense of morality. Otherwise stated, respondent to whom stricter standards must apply being the highest
official [of] the NLRC had shown an attitude, a frame of mind, a disgraceful conduct, which renders him unfit
to remain in the service.
WHEREFORE, in view of the foregoing, respondent Rogelio I. Rayala, Chairman, National Labor Relations
Commission, is found guilty of the grave offense of disgraceful and immoral conduct and is hereby
DISMISSED from the service effective upon receipt of this Order.
SO ORDER[ED].

Rayala filed a Motion for Reconsideration, which the OP denied in a Resolution[8] dated May 24, 2000.
He then filed a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order under Rule
65 of the Revised Rules on Civil Procedure before this Court on June 14, 2000.[9] However, the same was
dismissed in a Resolution dated June 26, 2000 for disregarding the hierarchy of courts.[10] Rayala
filed a Motion for

Reconsideration[11] on August 15, 2000. In its Resolution[12] dated September 4, 2000, the Court recalled its
June 26 Resolution and referred the petition to the Court of Appeals (CA) for appropriate action.
The CA rendered its Decision[13] on December 14, 2001. It held that there was sufficient evidence on record
to create moral certainty that Rayala committed the acts he was charged with. It said:
The complainant narrated her story complete with details. Her straightforward and uninhibited testimony was
not emasculated by the declarations of Commissioner Rayala or his witnesses. x x x
Moreover, Commissioner Rayala has not proven any vicious motive for Domingo and her witnesses to invent
their stories. It is very unlikely that they would perjure themselves only to accommodate the alleged conspiracy
to oust petitioner from office. Save for his empty conjectures and speculations, Rayala failed to substantiate his
contrived conspiracy. It is a hornbook doctrine that conspiracy must be proved by positive and convincing
evidence (People v. Noroa, 329 SCRA 502 [2000]). Besides, it is improbable that the complainant would
concoct a story of sexual harassment against the highest official of the NLRC and thereby expose herself to
the possibility of losing her job, or be the subject of reprisal from her superiors and perhaps public ridicule if
she was not telling the truth.
It also held that Rayalas dismissal was proper. The CA pointed out that Rayala was dismissed for disgraceful
and immoral conduct in violation of RA 6713, the Code of Conduct and Ethical Standards for Public Officials
and Employees. It held that the OP was correct in concluding that Rayalas acts violated RA 6713:
Indeed, [Rayala] was a public official, holding the Chairmanship of the National Labor Relations Commission,
entrusted with the sacred duty of administering justice. Occupying as he does such an exalted position,
Commissioner Rayala must pay a high price for the honor bestowed upon him. He must comport himself at all
times in such a manner that the conduct of his everyday life should be beyond reproach and free from any
impropriety. That the acts complained of were committed within the sanctuary of [his] office compounded the
objectionable nature of his wrongdoing. By daring to violate the complainant within the solitude of his
chambers, Commissioner Rayala placed the integrity of his office in disrepute. His disgraceful and immoral
conduct warrants his removal from office.[14]

Thus, it dismissed the petition, to wit:

IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DISMISSED and Administrative Order No.
119 as well [as] the Resolution of the Office of the President in O.P. Case No. 00-E-9118 dated May 24, 2000
are AFFIRMED IN TOTO. No cost.
SO ORDERED.[15]

Rayala timely filed a Motion for Reconsideration. Justices Vasquez and Tolentino voted to affirm the December
14 Decision. However, Justice Reyes dissented mainly because AO 250 states that the penalty imposable is
suspension for six (6) months and one (1) day.[16] Pursuant to the internal rules of the CA, a Special Division
of Five was constituted.[17] In its October 18, 2002 Resolution, the CA modified its earlier Decision:
ACCORDINGLY, the Decision dated December [14], 2001 is MODIFIED to the effect that the penalty of
dismissal is DELETED and instead the penalty of suspension from service for the maximum period of one (1)
year is HEREBY IMPOSED upon the petitioner. The rest of the challenged decision stands.
SO ORDERED.

Domingo filed a Petition for Review[18] before this Court, which we denied in our February 19, 2003 Resolution
for having a defective verification. She filed a Motion for Reconsideration, which the Court granted; hence, the
petition was reinstated.
Rayala likewise filed a Petition for Review[19] with this Court essentially arguing that he is not guilty of any act
of sexual harassment.
Meanwhile, the Republic filed a Motion for Reconsideration of the CAs October 18, 2002 Resolution. The CA
denied the same in its June 3, 2003 Resolution, the dispositive portion of which reads:
ACCORDINGLY, by a majority vote, public respondents Motion for Reconsideration, (sic) is DENIED.
SO ORDERED.

The Republic then filed its own Petition for Review.[20]

On June 28, 2004, the Court directed the consolidation of the three (3) petitions.
G.R. No. 155831
Domingo assails the CAs resolution modifying the penalty imposed by the Office of the President. She raises
this issue:
The Court of Appeals erred in modifying the penalty for the respondent from dismissal to suspension from
service for the maximum period of one year. The President has the prerogative to determine the proper penalty
to be imposed on an erring Presidential appointee. The President was well within his power when he fittingly
used that prerogative in deciding to dismiss the respondent from the service.[21]

She argues that the power to remove Rayala, a presidential appointee, is lodged with the President who has
control of the entire Executive Department, its bureaus and offices. The OPs decision was arrived at after
affording Rayala due process. Hence, his dismissal from the service is a prerogative that is entirely with the
President.[22]
As to the applicability of AO No. 250, she argues that the same was not intended to cover cases against
presidential appointees. AO No. 250 refers only to the instances wherein the DOLE Secretary is the
disciplining authority, and thus, the AO does not circumscribe the power of the President to dismiss an erring
presidential appointee.
G.R. No. 155840
In his petition, Rayala raises the following issues:
I.
CONTRARY TO THE FINDINGS OF THE COURT OF APPEALS, THE ACTS OF HEREIN
PETITIONER DO NOT CONSTITUTE SEXUAL HARASSMENT AS LAID DOWN BY THE En Banc RULING
IN THE CASE OF AQUINO vs. ACOSTA, ibid., AS WELL AS IN THE APPLICATION OF EXISTING LAWS.
II.
CONTRARY TO THE FINDINGS OF THE HONORABLE COURT OF APPEALS, INTENT IS AN
INDISPENSABLE ELEMENT IN A CASE FOR SEXUAL HARASSMENT. THE HONORABLE COURT ERRED
IN ITS FINDING THAT IT IS AN OFFENSE THAT IS MALUM PROHIBITUM.
III.
THE INVESTIGATION COMMITTEE, THE OFFICE OF THE PRESIDENT, AND NOW, THE
HONORABLE COURT OF APPEALS, HAS MISAPPLIED AND EXPANDED THE DEFINITION OF SEXUAL
HARASSMENT IN THE WORKPLACE UNDER R.A. No. 7877, BY APPLYING DOLE A.O. 250, WHICH RUNS
COUNTER TO THE RECENT PRONOUNCEMENTS OF THIS HONORABLE SUPREME COURT.[23]

Invoking Aquino v. Acosta,[24] Rayala argues that the case is the definitive ruling on what constitutes sexual
harassment. Thus, he posits that for sexual harassment to exist under RA 7877, there must be: (a) demand,
request, or requirement of a sexual favor; (b) the same is made a pre-condition to hiring, re-employment, or
continued employment; or (c) the denial thereof results in discrimination against the employee.
Rayala asserts that Domingo has failed to allege and establish any sexual favor, demand, or request from
petitioner in exchange for her continued employment or for her promotion. According to Rayala, the acts
imputed to him are without malice or ulterior motive. It was merely Domingos perception of malice in his
alleged acts a product of her own imagination[25] that led her to file the sexual harassment complaint.
Likewise, Rayala assails the OPs interpretation, as upheld by the CA, that RA 7877 is malum prohibitum such
that the defense of absence of malice is unavailing. He argues that sexual harassment is considered an
offense against a particular person, not against society as a whole. Thus, he claims that intent is an essential
element of the offense because the law requires as a conditio sine qua non that a sexual favor be first sought
by the offender in order to achieve certain specific results. Sexual harassment is committed with the
perpetrators deliberate intent to commit the offense.[26]
Rayala next argues that AO 250 expands the acts proscribed in RA 7877. In particular, he assails the definition
of the forms of sexual harassment:
Rule IV
FORMS OF SEXUAL HARASSMENT
Section 1. Forms of Sexual Harassment. Sexual harassment may be committed in any of the following forms:
a) Overt sexual advances;
b) Unwelcome or improper gestures of affection;
c) Request or demand for sexual favors including but not limited to going out on dates, outings or the like for
the same purpose;
d) Any other act or conduct of a sexual nature or for purposes of sexual gratification which is generally
annoying, disgusting or offensive to the victim.[27]

He posits that these acts alone without corresponding demand, request, or requirement do not constitute
sexual harassment as contemplated by the law.[28] He alleges that the rule-making power granted to the
employer in Section 4(a) of RA 7877 is limited only to procedural matters. The law did not delegate to the
employer the power to promulgate rules which would provide other or additional forms of sexual harassment,
or to come up with its own definition of sexual harassment.[29]
G.R. No. 158700
The Republic raises this issue:
Whether or not the President of the Philippines may validly dismiss respondent Rayala as Chairman of the
NLRC for committing acts of sexual harassment.[30]
The Republic argues that Rayalas acts constitute sexual harassment under AO 250. His acts constitute
unwelcome or improper gestures of affection and are acts or conduct of a sexual nature, which are generally
annoying or offensive to the victim.[31]

It also contends that there is no legal basis for the CAs reduction of the penalty imposed by the OP. Rayalas
dismissal is valid and warranted under the circumstances. The power to remove the NLRC Chairman solely
rests upon the President, limited only by the requirements under the law and the due process clause.
The Republic further claims that, although AO 250 provides only a one (1) year suspension, it will not prevent
the OP from validly imposing the penalty of dismissal on Rayala. It argues that even though Rayala is a
presidential appointee, he is still subject to the Civil Service Law. Under the Civil Service Law, disgraceful and
immoral conduct, the acts imputed to Rayala, constitute grave misconduct punishable by dismissal from the
service.[32] The Republic adds that Rayalas position is invested with public trust and his acts violated that
trust; thus, he should be dismissed from the service.
This argument, according to the Republic, is also supported by Article 215 of the Labor Code, which states that
the Chairman of the NLRC holds office until he reaches the age of 65 only during good behavior.[33] Since
Rayalas security of tenure is conditioned upon his good behavior, he may be removed from office if it is proven
that he has failed to live up to this standard.
All the issues raised in these three cases can be summed up in two ultimate questions, namely:
(1) Did Rayala commit sexual harassment?
(2) If he did, what is the applicable penalty?

Initially, however, we must resolve a procedural issue raised by Rayala. He accuses the Office of the Solicitor
General (OSG), as counsel for the Republic, of forum shopping because it filed a motion for reconsideration of
the decision in CA-G.R. SP No. 61026 and then filed a comment in G.R. No. 155840 before this Court.
We do not agree.
Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one
forum, of seeking and possibly securing a favorable opinion in another forum, other than by appeal or special
civil action for certiorari.[34] It consists of filing multiple suits involving the same parties for the same cause of
action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.[35]
There is forum shopping when the following elements concur: (1) identity of the parties or, at least, of the
parties who represent the same interest in both actions; (2) identity of the rights asserted and relief prayed for,
as the latter is founded on the same set of facts; and (3) identity of the two preceding particulars such that any
judgment rendered in the other action will amount to res judicata in the action under consideration or will
constitute litis pendentia.[36]
Reviewing the antecedents of these consolidated cases, we note that the CA rendered the assailed Resolution
on October 18, 2002. The Republic filed its Motion for Reconsideration on November 22, 2002. On the other
hand, Rayala filed his petition before this Court on November 21, 2002. While the Republics Motion for
Reconsideration was pending resolution before the CA, on December 2, 2002, it was directed by this Court to
file its Comment on Rayalas petition, which it submitted on June 16, 2003.
When the CA denied the Motion for Reconsideration, the Republic filed its own Petition for Review with this
Court on July 3, 2003. It cited in its Certification and Verification of a Non-Forum Shopping (sic), that there
was a case involving the same facts pending before this Court denominated as G.R. No. 155840. With respect
to Domingos petition, the same had already been dismissed on February 19, 2003. Domingos petition was
reinstated on June 16, 2003 but the resolution was received by the OSG only on July 25, 2003, or after it had
filed its own petition.[37]
Based on the foregoing, it cannot be said that the OSG is guilty of forum shopping. We must point out that it
was Rayala who filed the petition in the CA, with the Republic as the adverse party. Rayala himself filed a
motion for reconsideration of the CAs December 21, 2001 Decision, which led to a more favorable ruling, i.e.,

the lowering of the penalty from dismissal to one-year suspension. The parties adversely affected by this ruling
(Domingo and the Republic) had the right to question the same on motion for reconsideration. But Domingo
directly filed a Petition for Review with this Court, as did Rayala. When the Republic opted to file a motion for
reconsideration, it was merely exercising a right. That Rayala and Domingo had by then already filed cases
before the SC did not take away this right. Thus, when this Court directed the Republic to file its Comment on
Rayalas petition, it had to comply, even if it had an unresolved motion for reconsideration with the CA, lest it
be cited for contempt.
Accordingly, it cannot be said that the OSG file[d] multiple suits involving the same parties for the same cause
of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.
We now proceed to discuss the substantive issues.
It is noteworthy that the five CA Justices who deliberated on the case were unanimous in upholding the
findings of the Committee and the OP. They found the assessment made by the Committee and the OP to be
a meticulous and dispassionate analysis of the testimonies of the complainant (Domingo), the respondent
(Rayala), and their respective witnesses. [38] They differed only on the appropriate imposable penalty.
That Rayala committed the acts complained of and was guilty of sexual harassment is, therefore, the
common factual finding of not just one, but three independent bodies: the Committee, the OP and the CA. It
should be remembered that when supported by substantial evidence, factual findings made by quasi-judicial
and administrative bodies are accorded great respect and even finality by the courts.[39] The principle,
therefore, dictates that such findings should bind us.[40]
Indeed, we find no reason to deviate from this rule. There appears no valid ground for this Court to review the
factual findings of the CA, the OP, and the Investigating Committee. These findings are now conclusive on the
Court. And quite significantly, Rayala himself admits to having committed some of the acts imputed to him.
He insists, however, that these acts do not constitute sexual harassment, because Domingo did not allege in
her complaint that there was a demand, request, or requirement of a sexual favor as a condition for her
continued employment or for her promotion to a higher position.[41] Rayala urges us to apply to his case our
ruling in Aquino v. Acosta.[42]
We find respondents insistence unconvincing.
Basic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions
of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed
independently of the others.[43] This rule applies with full force to sexual harassment.
The law penalizing sexual harassment in our jurisdiction is RA 7877. Section 3 thereof defines work-related
sexual harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual Harassment Defined. Work, education or training-related
sexual harassment is committed by an employer, manager, supervisor, agent of the employer, teacher,
instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy
over another in a work or training or education environment, demands, requests or otherwise requires any
sexual favor from the other, regardless of whether the demand, request or requirement for submission is
accepted by the object of said Act.
(a)

In a work-related or employment environment, sexual harassment is committed when:

(1)
The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued
employment of said individual, or in granting said individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying
the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise
adversely affect said employee;

(2)

The above acts would impair the employees rights or privileges under existing labor laws; or

(3)

The above acts would result in an intimidating, hostile, or offensive environment for the employee.

This section, in relation to Section 7 on penalties, defines the criminal aspect of the unlawful act of sexual
harassment. The same section, in relation to Section 6, authorizes the institution of an independent civil action
for damages and other affirmative relief.
Section 4, also in relation to Section 3, governs the procedure for administrative cases, viz.:
Sec. 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. It shall
be the duty of the employer or the head of the work-related, educational or training environment or institution,
to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the
resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of
office shall:
(a)
Promulgate appropriate rules and regulations in consultation with and jointly approved by the
employees or students or trainees, through their duly designated representatives, prescribing the procedure for
the investigation or sexual harassment cases and the administrative sanctions therefor.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual
harassment.
The said rules and regulations issued pursuant to this section (a) shall include, among others, guidelines on
proper decorum in the workplace and educational or training institutions.
(b)
Create a committee on decorum and investigation of cases on sexual harassment. The committee
shall conduct meetings, as the case may be, with other officers and employees, teachers, instructors,
professors, coaches, trainors and students or trainees to increase understanding and prevent incidents of
sexual harassment. It shall also conduct the investigation of the alleged cases constituting sexual harassment.
In the case of a work-related environment, the committee shall be composed of at least one (1) representative
each from the management, the union, if any, the employees from the supervisory rank, and from the rank and
file employees.
In the case of the educational or training institution, the committee shall be composed of at least one (1)
representative from the administration, the trainors, teachers, instructors, professors or coaches and students
or trainees, as the case maybe.
The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for
the information of all concerned.
The CA, thus, correctly ruled that Rayalas culpability is not to be determined solely on the basis of Section 3,
RA 7877, because he is charged with the administrative offense, not the criminal infraction, of sexual
harassment.[44] It should be enough that the CA, along with the Investigating Committee and the Office of the
President, found substantial evidence to support the administrative charge.
Yet, even if we were to test Rayalas acts strictly by the standards set in Section 3, RA 7877, he would still be
administratively liable. It is true that this provision calls for a demand, request or requirement of a sexual
favor. But it is not necessary that the demand, request or requirement of a sexual favor be articulated in a
categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender.
Holding and squeezing Domingos shoulders, running his fingers across her neck and tickling her ear, having
inappropriate conversations with her, giving her money allegedly for school expenses with a promise of future

privileges, and making statements with unmistakable sexual overtones all these acts of Rayala resound with
deafening clarity the unspoken request for a sexual favor.
Likewise, contrary to Rayalas claim, it is not essential that the demand, request or requirement be made as a
condition for continued employment or for promotion to a higher position. It is enough that the respondents
acts result in creating an intimidating, hostile or offensive environment for the employee.[45] That the acts of
Rayala generated an intimidating and hostile environment for Domingo is clearly shown by the common factual
finding of the Investigating Committee, the OP and the CA that Domingo reported the matter to an officemate
and, after the last incident, filed for a leave of absence and requested transfer to another unit.
Rayalas invocation of Aquino v. Acosta[46] is misplaced, because the factual setting in that case is different
from that in the case at bench. In Aquino, Atty. Susan Aquino, Chief of the Legal and Technical Staff of the
Court of Tax Appeals (CTA), charged then CTA Presiding Judge (now Presiding Justice) Ernesto Acosta of
sexual harassment. She complained of several incidents when Judge Acosta allegedly kissed her, embraced
her, and put his arm around her shoulder. The case was referred to CA Justice Josefina G. Salonga for
investigation. In her report, Justice Salonga found that the complainant failed to show by convincing evidence
that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a `beso-beso fashion, were carried
out with lustful and lascivious desires or were motivated by malice or ill motive. It is clear from the
circumstances that most of the kissing incidents were done on festive and special occasions, and they took
place in the presence of other people and the same was by reason of the exaltation or happiness of the
moment. Thus, Justice Salonga concluded:
In all the incidents complained of, the respondent's pecks on the cheeks of the complainant should be
understood in the context of having been done on the occasion of some festivities, and not the assertion of the
latter that she was singled out by Judge Acosta in his kissing escapades. The busses on her cheeks were
simply friendly and innocent, bereft of malice and lewd design. The fact that respondent judge kisses other
people on the cheeks in the 'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P. Flores,
Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they usually practice 'beso-beso' or kissing on
the cheeks, as a form of greeting on occasions when they meet each other, like birthdays, Christmas, New
Year's Day and even Valentine's Day, and it does not matter whether it is Judge Acosta's birthday or their
birthdays. Theresa Cinco Bactat, a lawyer who belongs to complainant's department, further attested that on
occasions like birthdays, respondent judge would likewise greet her with a peck on the cheek in a 'beso-beso'
manner. Interestingly, in one of several festive occasions, female employees of the CTA pecked respondent
judge on the cheek where Atty. Aquino was one of Judge Acosta's well wishers.
In sum, no sexual harassment had indeed transpired on those six occasions. Judge Acosta's acts of bussing
Atty. Aquino on her cheek were merely forms of greetings, casual and customary in nature. No evidence of
intent to sexually harass complainant was apparent, only that the innocent acts of 'beso-beso' were given
malicious connotations by the complainant. In fact, she did not even relate to anyone what happened to her.
Undeniably, there is no manifest sexual undertone in all those incidents.[47]

This Court agreed with Justice Salonga, and Judge Acosta was exonerated.
To repeat, this factual milieu in Aquino does not obtain in the case at bench. While in Aquino, the Court
interpreted the acts (of Judge Acosta) as casual gestures of friendship and camaraderie, done during festive or
special occasions and with other people present, in the instant case, Rayalas acts of holding and squeezing
Domingos shoulders, running his fingers across her neck and tickling her ear, and the inappropriate
comments, were all made in the confines of Rayalas office when no other members of his staff were around.
More importantly, and a circumstance absent in Aquino, Rayalas acts, as already adverted to above, produced
a hostile work environment for Domingo, as shown by her having reported the matter to an officemate and,
after the last incident, filing for a leave of absence and requesting transfer to another unit.
Rayala also argues that AO 250 does not apply to him. First, he argues that AO 250 does not cover the NLRC,
which, at the time of the incident, was under the DOLE only for purposes of program and policy coordination.

Second, he posits that even assuming AO 250 is applicable to the NLRC, he is not within its coverage because
he is a presidential appointee.
We find, however, that the question of whether or not AO 250 covers Rayala is of no real consequence. The
events of this case unmistakably show that the administrative charges against Rayala were for violation of RA
7877; that the OP properly assumed jurisdiction over the administrative case; that the participation of the
DOLE, through the Committee created by the Secretary, was limited to initiating the investigation process,
reception of evidence of the parties, preparation of the investigation report, and recommending the appropriate
action to be taken by the OP. AO 250 had never really been applied to Rayala. If it was used at all, it was to
serve merely as an auxiliary procedural guide to aid the Committee in the orderly conduct of the investigation.
Next, Rayala alleges that the CA erred in holding that sexual harassment is an offense malum prohibitum. He
argues that intent is an essential element in sexual harassment, and since the acts imputed to him were done
allegedly without malice, he should be absolved of the charges against him.
We reiterate that what is before us is an administrative case for sexual harassment. Thus, whether the crime of
sexual harassment is malum in se or malum prohibitum is immaterial.
We also reject Rayalas allegations that the charges were filed because of a conspiracy to get him out of office
and thus constitute merely political harassment. A conspiracy must be proved by clear and convincing
evidence. His bare assertions cannot stand against the evidence presented by Domingo. As we have already
ruled, the acts imputed to Rayala have been proven as fact. Moreover, he has not proven any ill motive on the
part of Domingo and her witnesses which would be ample reason for her to conjure stories about him. On the
contrary, ill motive is belied by the fact that Domingo and her witnesses all employees of the NLRC at that
time stood to lose their jobs or suffer unpleasant consequences for coming forward and charging their boss
with sexual harassment.
Furthermore, Rayala decries the alleged violation of his right to due process. He accuses the Committee on
Decorum of railroading his trial for violation of RA 7877. He also scored the OPs decision finding him guilty of
disgraceful and immoral conduct under the Revised Administrative Code and not for violation of RA 7877.
Considering that he was not tried for disgraceful and immoral conduct, he argues that the verdict is a sham
and total nullity.
We hold that Rayala was properly accorded due process. In previous cases, this Court held that:
[i]n administrative proceedings, due process has been recognized to include the following: (1) the right to
actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2)
a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence
in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted
as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and
(4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during
the hearing or contained in the records or made known to the parties affected.[48]

The records of the case indicate that Rayala was afforded all these procedural due process safeguards.
Although in the beginning he questioned the authority of the Committee to try him,[49] he appeared, personally
and with counsel, and participated in the proceedings.
On the other point raised, this Court has held that, even in criminal cases, the designation of the offense is not
controlling, thus:
What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular
law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts therein recited. The acts or omissions complained of
must be alleged in such form as is sufficient to enable a person of common understanding to know what
offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a

crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every
element of the offense must be stated in the information. What facts and circumstances are necessary to be
included therein must be determined by reference to the definitions and essentials of the specified crimes. The
requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his defense.[50]

It is noteworthy that under AO 250, sexual harassment amounts to disgraceful and immoral conduct.[51] Thus,
any finding of liability for sexual harassment may also be the basis of culpability for disgraceful and immoral
conduct.
With the foregoing disquisitions affirming the finding that Rayala committed sexual harassment, we now
determine the proper penalty to be imposed.
Rayala attacks the penalty imposed by the OP. He alleges that under the pertinent Civil Service Rules,
disgraceful and immoral conduct is punishable by suspension for a period of six (6) months and one (1) day to
one (1) year. He also argues that since he is charged administratively, aggravating or mitigating circumstances
cannot be appreciated for purposes of imposing the penalty.
Under AO 250, the penalty for the first offense is suspension for six (6) months and one (1) day to one (1) year,
while the penalty for the second offense is dismissal.[52] On the other hand, Section 22(o), Rule XVI of the
Omnibus Rules Implementing Book V of the Administrative Code of 1987[53] and Section 52 A(15) of the
Revised Uniform Rules on Administrative Cases in the Civil Service[54] both provide that the first offense of
disgraceful and immoral conduct is punishable by suspension of six (6) months and one (1) day to one (1)
year. A second offense is punishable by dismissal.
Under the Labor Code, the Chairman of the NLRC shall hold office during good behavior until he or she
reaches the age of sixty-five, unless sooner removed for cause as provided by law or becomes incapacitated
to discharge the duties of the office.[55]
In this case, it is the President of the Philippines, as the proper disciplining authority, who would determine
whether there is a valid cause for the removal of Rayala as NLRC Chairman. This power, however, is qualified
by the phrase for cause as provided by law. Thus, when the President found that Rayala was indeed guilty of
disgraceful and immoral conduct, the Chief Executive did not have unfettered discretion to impose a penalty
other than the penalty provided by law for such offense. As cited above, the imposable penalty for the first
offense of either the administrative offense of sexual harassment or for disgraceful and immoral conduct is
suspension of six (6) months and one (1) day to one (1) year. Accordingly, it was error for the Office of the
President to impose upon Rayala the penalty of dismissal from the service, a penalty which can only be
imposed upon commission of a second offense.
Even if the OP properly considered the fact that Rayala took advantage of his high government position, it still
could not validly dismiss him from the service. Under the Revised Uniform Rules on Administrative Cases in
the Civil Service,[56] taking undue advantage of a subordinate may be considered as an aggravating
circumstance[57] and where only aggravating and no mitigating circumstances are present, the maximum
penalty shall be imposed.[58] Hence, the maximum penalty that can be imposed on Rayala is suspension for
one (1) year.
Rayala holds the exalted position of NLRC Chairman, with the rank equivalent to a CA Justice. Thus, it is not
unavailing that rigid standards of conduct may be demanded of him. In Talens-Dabon v. Judge Arceo,[59] this
Court, in upholding the liability of therein respondent Judge, said:
The actuations of respondent are aggravated by the fact that complainant is one of his subordinates over
whom he exercises control and supervision, he being the executive judge. He took advantage of his position
and power in order to carry out his lustful and lascivious desires. Instead of he being in loco parentis over his
subordinate employees, respondent was the one who preyed on them, taking advantage of his superior
position.

In yet another case, this Court declared:

As a managerial employee, petitioner is bound by more exacting work ethics. He failed to live up to his higher
standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is
perpetrated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and
confidence. It is the right, nay, the duty of every employer to protect its employees from oversexed
superiors.[60]

It is incumbent upon the head of office to set an example on how his employees should conduct themselves in
public office, so that they may work efficiently in a healthy working atmosphere. Courtesy demands that he
should set a good example.[61]
Rayala has thrown every argument in the book in a vain effort to effect his exoneration. He even puts
Domingos character in question and casts doubt on the morality of the former President who ordered, albeit
erroneously, his dismissal from the service. Unfortunately for him, these are not significant factors in the
disposition of the case. It is his character that is in question here and sadly, the inquiry showed that he has
been found wanting.
WHEREFORE, the foregoing premises considered, the October 18, 2002 Resolution of the Court of Appeals in
CA-G.R. SP No. 61026 is AFFIRMED. Consequently, the petitions in G.R. Nos. 155831, 155840, and 158700
are DENIED. No pronouncement as to costs.
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

Bacsin vs. Wahiman, April 30, 2008, G.R. No. G.R. No. 146053
Republic of the Philippines
SUPREME COURT
Baguio City

SECOND DIVISION

DIOSCORO F. BACSIN,
Petitioner,

G.R. No. 146053

Present:

- versus -

QUISUMBING, J., Chairperson,

CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.

EDUARDO O. WAHIMAN,
Respondent.

Promulgated:

April 30, 2008

x-----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:

In this Petition for Review on Certiorari, petitioner Dioscoro F. Bacsin questions the Decision[1] dated
August 23, 2000 of the First Division of the Court of Appeals (CA) in CA-G.R. SP No. 51900, which affirmed
Resolution No. 98-0521 dated March 11, 1998 and Resolution No. 99-0273 dated January 28, 1999, both
issued by the Civil Service Commission (CSC), dismissing petitioner from the service for Grave Misconduct.
Facts of the Case
Petitioner is a public school teacher of Pandan Elementary School, Pandan, Mambajao, Camiguin
Province. Respondent Eduardo O. Wahiman
is the father of AAA, an elementary school student of the petitioner.
AAA claimed that on August 16, 1995, petitioner asked her to be at his office to do an errand.[2] Once
inside, she saw him get a folder from one of the cartons on the floor near his table, and place it on his table.
He then asked her to come closer, and when she did, held her hand, then touched and fondled her breast.
She stated that he fondled her breast five times, and that she felt afraid.[3] A classmate of hers, one Vincent
B. Sorrabas, claiming to have witnessed the incident, testified that the fondling incident did happen just as AAA
related it.[4]
Petitioner was charged with Misconduct in a Formal Charge dated February 12, 1996 by Regional Director
Vivencio N. Muego, Jr. of the CSC.[5]
In his defense, petitioner claimed that the touching incident happened by accident, just as he was
handing AAA a lesson book.[6] He further stated that the incident happened in about two or three seconds,
and that the girl left his office without any complaint.[7]
Resolution of the CSC
In Resolution No. 98-0521 dated March 11, 1998, the CSC found petitioner guilty of Grave Misconduct
(Acts of Sexual Harassment), and dismissed him from the service.[8] Specifically, the CSC found the petitioner
to have committed an act constituting sexual harassment, as defined in Sec. 3 of Republic Act No. (RA) 7877,
the Anti-Sexual Harassment Act of 1995.
Petitioner filed a motion for reconsideration, but the same was denied in Resolution No. 99-0273 dated
January 28, 1999.
Decision of the Court of Appeals
Petitioner then brought the matter to the CA under Rule 43 of the 1997 Rules of Civil Procedure, the
recourse docketed as CA-G.R. SP No. 51900.
Petitioner raised the following issues before the CA:
1.
Whether or not there were efforts by [AAA], her parents and the Honorable Civil Service
Commission to magnify the accidental touching incident on August 16, 1995;
2.

Whether or not the guilt of the petitioner was supported by the evidence on record; and

3.

Whether or not there was irregularity in the imposition of the penalty of removal.[9]

In resolving the case, the CA determined that the issue revolved around petitioners right to due process, and
based on its finding that petitioner had the opportunity to be heard, found that there was no violation of that
right. The CA ruled that, even if petitioner was formally charged with disgraceful and immoral conduct and
misconduct, the CSC found that the allegations and evidence sufficiently proved petitioners guilt of grave
misconduct, punishable by dismissal from the service.
The Issues Before Us
The petitioner now raises the following issues in the present petition:
1.
Whether or not the petitioner could be guilty of acts of sexual harassment, grave misconduct,
which was different from or an offense not alleged in the formal charge filed against him at the inception of the
administrative case.
2.
Assuming petitioner was guilty of disgraceful and immoral conduct and misconduct as charged by
complainant, whether or not the penalty of dismissal from the service imposed by the Civil Service Commission
and affirmed by the Court of Appeals is in accord with Rule XIV, Section (23) of the Omnibus Civil Service
Rules and applicable rulings.
3.
Whether or not the charge of Misconduct, a lesser offense, includes the offense of Grave
Misconduct; a greater offense.

The petition is without merit.

Petitioner argues that the CSC cannot validly adjudge him guilty of an offense, such as Grave Misconduct
(Acts of Sexual Harassment), different from that specified in the formal charge which was Misconduct. He
further argues that the offense of Misconduct does not include the graver offense of Grave Misconduct.
This argument is unavailing.
As Dadubo v. Civil Service Commission teaches:
The charge against the respondent in an administrative case need not be drafted with the precision of an
information in a criminal prosecution. It is sufficient that he is apprised of the substance of the charge against
him; what is controlling is the allegation of the acts complained of, not the designation of the offense.[10]

It is clear that petitioner was sufficiently informed of the basis of the charge against him, which was his act of
improperly touching one of his students. Thus informed, he defended himself from such charge. The failure to
designate the offense specifically and with precision is of no moment in this administrative case.
The formal charge, while not specifically mentioning RA 7877, The Anti-Sexual Harassment Act of 1995,
imputes on the petitioner acts covered and penalized by said law. Contrary to the argument of petitioner, the
demand of a sexual favor need not be explicit or stated. In Domingo v. Rayala,[11] it was held, It is true that
this provision calls for a demand, request or requirement of a sexual favor. But it is not necessary that the
demand, request, or requirement of a sexual favor be articulated in a categorical oral or written statement. It
may be discerned, with equal certitude, from the acts of the offender. The CSC found, as did the CA, that
even without an explicit demand from petitioner his act of mashing the breast of AAA was sufficient to
constitute sexual harassment. Moreover, under Section 3 (b) (4) of RA 7877, sexual harassment in an
education or training environment is committed (w)hen the sexual advances result in an intimidating, hostile or
offensive environment for the student, trainee or apprentice. AAA even testified that she felt fear at the time
petitioner touched her.[12] It cannot then be said that the CSC lacked basis for its ruling, when it had both the
facts and the law. The CSC found the evidence presented by the complainant sufficient to support a finding of
grave misconduct. It is basic that factual findings of administrative agencies, when supported by substantial
evidence, are binding upon the Court.

Leaving aside the discrepancy of the designation of the offense in the formal charge, it must be discussed
whether or not petitioner is indeed guilty, as found by the CA and CSC, of Grave Misconduct, as
distinguished from Simple Misconduct. From the findings of fact of the CSC, it is clear that there is
misconduct on the part of petitioner. The term misconduct denotes intentional wrongdoing or deliberate
violation of a rule of law or standard of behavior.[13]
We agree with the rulings of the CSC and the CA.
In grave misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of
established rule must be manifest.[14] The act of petitioner of fondling one of his students is against a law, RA
7877, and is doubtless inexcusable. The particular act of petitioner cannot in any way be construed as a case
of simple misconduct. Sexually molesting a child is, by any norm, a revolting act that it cannot but be
categorized as a grave offense. Parents entrust the care and molding of their children to teachers, and expect
them to be their guardians while in school. Petitioner has violated that trust. The charge of grave misconduct
proven against petitioner demonstrates his unfitness to remain as a teacher and continue to discharge the
functions of his office.
Petitioners second argument need not be discussed further, as he was rightly found guilty of grave
misconduct. Under Rule IV, Section 52 of the CSC Uniform Rules on Administrative Cases, Grave
Misconduct carries with it the penalty of dismissal for the first offense. Thus, the penalty imposed on petitioner
is in accordance with the Rules.
Petitioner was not denied due process of law, contrary to his claims. The essence of due process is simply an
opportunity to be heard, or, as applied to administrative proceedings, an opportunity to explain ones side or an
opportunity to seek for a reconsideration of the action or ruling complained of.[15] These elements are
present in this case, where petitioner was properly informed of the charge and had a chance to refute it, but
failed.
A teacher who perverts his position by sexually harassing a student should not be allowed, under any
circumstance, to practice this noble profession. So it must be here.
WHEREFORE, in view of the foregoing, this petition is hereby DISMISSED, and the decision of the CA in CAG.R. SP No. 51900 is hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice
Employment of Minors
RA No. 7678
November 9, 1993
REPUBLIC ACT NO. 7658
AN ACT PROHIBITING THE EMPLOYMENT OF CHILDREN BELOW 15 YEARS OF AGE IN PUBLIC AND
PRIVATE UNDERTAKINGS, AMENDING FOR THIS PURPOSE SECTION 12, ARTICLE VIII OF R.A. 7610
Sec. 1. Section 12, Article VIII of R.A. No. 7610 otherwise known as the "Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act" is hereby amended to read as follows:
"Sec. 12.

Employment of Children. - Children below fifteen (15) years of age shall not be employed except:

1)
When a child works directly under the sole responsibility of his parents or legal guardian and where only
members of the employer's family are employed: Provided, however, That his employment neither endangers
his life, safety, health and morals, nor impairs his normal development; Provided, further, That the parent or
legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or
2)
Where a child's employment or participation in public entertainment or information through cinema,
theater, radio or television is essential: Provided, The employment contract is concluded by the child's parents
or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the
Department of Labor and Employment: and Provided, That the following requirements in all instances are
strictly complied with: cd
(a)

The employer shall ensure the protection, health, safety, morals and normal development of the child;

(b)
The employer shall institute measures to prevent the child's exploitation or discrimination taking into
account the system and level of remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent
authorities, a continuing program for training and skills acquisition of the requirements.
In the above exceptional cases where any such child may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department of Labor and Employment which shall ensure
observance of the child. cd i
The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective
implementation of this Section."
ec. 2. All laws, decrees, executive orders, rules and regulations or parts thereof contrary to, or inconsistent
with this Act are hereby modified or repealed accordingly.
Sec. 3. This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in at
least two (2) national newspapers or general circulation whichever comes earlier.
Approved: November 9, 1993
DEPARTMENT ORDER NO. 18
Rules and Regulations Implementing Republic Act No. 7658
By virtue of the provisions of Section 2 of Republic Act No. 7658, An Act Prohibiting the Employment of
Children Below Fifteen (15) Years of Age in Public and Private Undertakings, amending Section 12, Article VIII
of Republic Act No. 7610, the following Rules and Regulations governing the employment of children are
hereby issued:
ec. 1. General Prohibition. - Except as otherwise provided in this Rules, children below 15 years of age shall
not be employed, permitted or suffered to work, in any public or private establishments in the Philippines.
Sec. 2. Definition of terms.
a.
"Employer" - any parent, legal guardian or producer acting as employer who hires or engages the
services of any child below 15 years of age.
b.
"Legal Guardian" - any person duly appointed by a court of competent authority to exercise care and
custody of or parental authority over the person of such child/employee.

c.
"Producer" - any individual or group of individuals engaged in the production of movies, films, motion
pictures, shows or advertisements, whether on cinema, theater, radio or television, wherein the services of
such child/employee are hired.
d.
"Members of the family" - those persons having family relations referred to under Article 150 of the
Family Code of the Philippines. It shall include the employer parent's or legal guardian's husband or wife,
parents, children, other ascendants or descendants, brothers and sisters whether of full or half blood.
e.

"Department" - the Department of Labor and Employment.

Sec. 3. Exceptions and conditions. - The following shall be the only exceptions to the prohibition on the
employment of children below 15 years of age and the conditions for availment of said exceptions:
a.
When the child works directly under the sole responsibility of his/her parents or legal guardian who
employs members of his/her family only, under the following conditions:
1.

the employment does not endanger the child's life, safety, health and morals;

2.

the employment does not impair the child's normal development.

3.
the employer parent or legal guardian provides the child with the primary and/or secondary education
prescribed by the Department of Education, Culture and Sports.
b.
Where the child's employment or participation in public entertainment or information through cinema,
theater, radio or television is essential, provided that:
1.
the employment does not involve advertisements or commercials promoting alcoholic beverages,
intoxicating drinks, tobacco and its by-products or exhibiting violence;
2.

there is a written contract approved by the Department of Labor and Employment; and

3.

the condition prescribed in Section a above are met.

Sec. 5. Pre-employment requirements. - Before an employer engages a child for employment under the
exceptions enumerated above, he/she met first secure a work permit from the Regional Office of the
Department having jurisdiction over the workplace.
The Regional Office shall require the employer to submit the following documents in support of the application
for a work permit:
a.
two (2) pictures of the child, one full body and the other showing the child's face, both of which must be
recently taken and recognizable;
b.
the child's Birth Certificate or in its absence, his/her Baptismal Certificate and a joint affidavit of his/her
two nearest kin showing the year he/she was born and a duly authenticated proof of legal guardianship where
the employer is a legal guardian;
c.
a certificate of enrollment issued by the school where he/she is currently or last enrolled or a statement
from the parent or legal guardian that the child is attending school;
d.

a written undertaking that:

1.
measures shall be instituted by the employer to prevent the child's exploitation and discrimination such
as payment of minimum age, hours of work and other terms and conditions required by law; and
2.

the employer shall ensure the protection, health, safety, morals and normal development of the child;

e.

a medical certificate showing that the child is fit for employment;

f.
a certification of a continuing program for training and skills acquisition approved and supervised by any
competent authority, nearest the place of work, which may be recognized vocational or training school, the
regional or local office of the Department of Social Welfare and Development and the National Manpower and
Youth Council; and
g.
a written contract of employment concluded by the child's parents or legal guardian with the employer in
cases of employment or participation in public entertainment or information through cinema, theater, radio or
television. Said contract shall bear the express agreement of the child concerned, if possible, and shall state
the nature or full description of the job and the justification is essential.
Sec. 5. Hours of Work. - Subject to consultations with the sectors concerned, the Department shall by
appropriate regulations, issue standards governing the hours of work and time of day that children may be
allowed to work.
Sec. 6. Effect on other issuances. - The provisions of existing rules and administrative issuances not otherwise
repealed, modified or inconsistent with this Order shall continue to have full force and effect.
Sec. 7. Penalties. - Any person who shall violate any provision of Article 12 of RA 7658, shall suffer the penalty
of a fine of not less than One Thousand Pesos (P1,000) but not more than Ten Thousand Pesos (P10,000) or
imprisonment of not less than three (3) months but not more than three (3) years, or both at the discretion of
the court: Provided, that in case of repeated violations of the provisions of this Article, the offender's license to
operate shall be revoked.
Sec. 8. Effectivity. - This Rules and Regulations shall take effect fifteen (15) days after its publications in a
newspaper of general circulation.
Signed this 12th day of May, 1994 in the City of Manila, Philippines.
(SGD.) MA. NIEVES R. CONFESOR
Secretary
Received by the AS-Records on May 13, 1994 and disseminated on May 3, 1994.
RA No. 9231
Twelfth Congress
Third Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eighth day of July, two thousand three.
Republic Act No. 9231

December 19, 2003

AN ACT PROVIDING FOR THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND
AFFORDING STRONGER PROTECTION FOR THE WORKING CHILD, AMENDING FOR THIS PURPOSE
REPUBLIC ACTNO. 7610, AS AMENDED, OTHERWISE KNOWN AS THE "SPECIAL PROTECTION OF
CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT"
Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled:
Section 1. Section 2 of Republic Act No. 7610, as amended, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act", is hereby amended to read as follows:

"Sec. 2. Declaration of State Policy and Principles. - It is hereby declared to be the policy of the State to
provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination,
and other conditions prejudicial to their development including child labor and its worst forms; provide
sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention
in situations of child abuse, exploitation and discrimination. The State shall intervene on behalf of the child
when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the
child against abuse, exploitation and discrimination or when such acts against the child are committed by the
said parent, guardian, teacher or person having care and custody of the same.
"It shall be the policy of the State to protect and rehabilitate children gravely threatened or endangered by
circumstances which affect or will affect their survival and normal development and over which they have no
control.
"The best interests of children shall be the paramount consideration in all actions concerning them, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities, and
legislative bodies, consistent with the principle of First Call for Children as enunciated in the United Nations
Convention on the Rights of the Child. Every effort shall be exerted to promote the welfare of children and
enhance their opportunities for a useful and happy life."
Section 2. Section 12 of the same Act, as amended, is hereby further amended to read as follows:
"Sec. 2. Employment of Children - Children below fifteen (15) years of age shall not be employed except:
"1) When a child works directly under the sole responsibility of his/her parents or legal guardian and where
only members of his/her family are employed: Provided, however, That his/her employment neither endangers
his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further, That the
parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or
"2) Where a child's employment or participation in public entertainment or information through cinema, theater,
radio, television or other forms of media is essential: Provided, That the employment contract is concluded by
the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the
approval of the Department of Labor and Employment: Provided, further, That the following requirements in all
instances are strictly complied with:
"(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;
"(b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into
account the system and level of remuneration, and the duration and arrangement of working time; and
"(c) The employer shall formulate and implement, subject to the approval and supervision of competent
authorities, a continuing program for training and skills acquisition of the child.
"In the above-exceptional cases where any such child may be employed, the employer shall first secure,
before engaging such child, a work permit from the Department of Labor and Employment which shall ensure
observance of the above requirements.
"For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age."
Section 3. The same Act, as amended, is hereby further amended by adding new sections to be denominated
as Sections 12-A, 12-B, 12-C, and 12-D to read as follows:
"Sec. 2-A. Hours of Work of a Working Child. - Under the exceptions provided in Section 12 of this Act, as
amended:

"(1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week:
Provided, That the work shall not be more than four (4) hours at any given day;
"(2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight
(8) hours a day, and in no case beyond forty (40) hours a week;
"(3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and
six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18)
shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day."
"Sec. 12-B. Ownership, Usage and Administration of the Working Child's Income. - The wages, salaries,
earnings and other income of the working child shall belong to him/her in ownership and shall be set aside
primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family:
Provided, That not more than twenty percent (20%) of the child's income may be used for the collective needs
of the family.
"The income of the working child and/or the property acquired through the work of the child shall be
administered by both parents. In the absence or incapacity of either of the parents, the other parent shall
administer the same. In case both parents are absent or incapacitated, the order of preference on parental
authority as provided for under the Family Code shall apply.
"Sec. 12-C. Trust Fund to Preserve Part of the Working Child's Income. - The parent or legal guardian of a
working child below eighteen (18) years of age shall set up a trust fund for at least thirty percent (30%) of the
earnings of the child whose wages and salaries from work and other income amount to at least two hundred
thousand pesos (P200,000.00) annually, for which he/she shall render a semi-annual accounting of the fund to
the Department of Labor and Employment, in compliance with the provisions of this Act. The child shall have
full control over the trust fund upon reaching the age of majority.
"Sec. 12-D. Prohibition Against Worst Forms of Child Labor. - No child shall be engaged in the worst forms of
child labor. The phrase "worst forms of child labor" shall refer to any of the following:
"(1) All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to
slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor,
including recruitment of children for use in armed conflict; or
"(2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for
pornographic performances; or
"(3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking
of dangerous drugs and volatile substances prohibited under existing laws; or
"(4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be
harmful to the health, safety or morals of children, such that it:
"a) Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
"b) Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically
or may prejudice morals; or
"c) Is performed underground, underwater or at dangerous heights; or
"d) Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive poweractuated tools; or
"e) Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical
strength or contortion, or which requires the manual transport of heavy loads; or

"f) Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements,
substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious
components and the like, or to extreme temperatures, noise levels, or vibrations; or
"g) Is performed under particularly difficult conditions; or
"h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other
parasites; or
"i) Involves the manufacture or handling of explosives and other pyrotechnic products."
Section 4. Section 13 of the same Act is hereby amended to read as follows:
"Sec. 13. Access to Education and Training for Working Children - "a) No child shall be deprived of formal or
non-formal education. In all cases of employment allowed in this Act, the employer shall provide a working
child with access to at least primary and secondary education.
"b) To ensure and guarantee the access of the working child to education and training, the Department of
Education (DEPED) shall: (1) formulate, promulgate, and implement relevant and effective course designs and
educational programs; (2) conduct the necessary training for the implementation of the appropriate curriculum
for the purpose; (3) ensure the availability of the needed educational facilities and materials; and (4) conduct
continuing research and development program for the necessary and relevant alternative education of the
working child.
"c) The DEPED shall promulgate a course design under its non-formal education program aimed at promoting
the intellectual, moral and vocational efficiency of working children who have not undergone or finished
elementary or secondary education. Such course design shall integrate the learning process deemed most
effective under given circumstances."
Section 5. Section 14 of the same Act is hereby amended to read as follows:
"Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. - No child shall be employed
as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks,
tobacco and its byproducts, gambling or any form of violence or pornography."
Section 6. Section 16 of the same Act, is hereby amended to read as follows:
"Sec. 16. Penal Provisions "a) Any employer who violates Sections 12, 12-A, and Section 14 of this act, as amended, shall be penalized
by imprisonment of six (6) months and one (1) day to six (6) years or a fine of not less than Fifty thousand
pesos (P50,000.00) but not more than Three hundred thousand pesos (P300,000.00) or both at the discretion
of the court.
"b) Any person who violates the provision of Section 12-D of this act or the employer of the subcontractor who
employs, or the one who facilitates the employment of a child in hazardous work, shall suffer the penalty of a
fine of not less than One hundred thousand pesos (P100,000.00) but not more than One million pesos
(P1,000,000.00), or imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years, or
both such fine and imprisonment at the discretion of the court.
"c) Any person who violates Sections 12-D(1) and 12-D(2) shall be prosecuted and penalized in accordance
with the penalty provided for by R. A. 9208 otherwise known as the "Anti-trafficking in Persons Act of 2003":
Provided, That Such penalty shall be imposed in its maximum period.

"d) Any person who violates Section 12-D (3) shall be prosecuted and penalized in accordance with R.A. 9165,
otherwise known as the "Comprehensive Dangerous Drugs Act of 2002"; Provided, That such penalty shall be
imposed in its maximum period.
"e) If a corporation commits any of the violations aforecited, the board of directors/trustees and officers, which
include the president, treasurer and secretary of the said corporation who participated in or knowingly allowed
the violation, shall be penalized accordingly as provided for under this Section.
"f) Parents, biological or by legal fiction, and legal guardians found to be violating Sections 12, 12-A, 12-B and
12-C of this Act shall pay a fine of not less than Ten thousand pesos (P10,000.00) but not more than One
hundred thousand pesos (P100,000.00), or be required to render community service for not less than thirty
(30) days but not more than one (1) year, or both such fine and community service at the discretion of the
court: Provided, That the maximum length of community service shall be imposed on parents or legal
guardians who have violated the provisions of this Act three (3) times; Provided, further, That in addition to the
community service, the penalty of imprisonment of thirty (30) days but not more than one (1) year or both at the
discretion of the court, shall be imposed on the parents or legal guardians who have violated the provisions of
this Act more than three (3) times.
"g) The Secretary, of Labor and Employment or his/her duly authorized representative may, after due notice
and hearing, order the closure of any business firm or establishment found to have violated any of the
provisions of this Act more than three (3) times. He/she shall likewise order the immediate closure of such firm
or establishment if:
"(1) The violation of any provision of this Act has resulted in the death, insanity or serious physical injury of a
child employed in such establishment; or
"(2) Such firm or establishment is engaged or employed in prostitution or in obscene or lewd shows.
"h) In case of such closure, the employer shall be required to pay the employee(s) the separation pay and
other monetary benefits provided for by law."
Section 7. The same Act is hereby further amended by adding a new section to be denominated as Section 16A, to read as follows:
"Sec. 16-A. Trust Fund from Fines and Penalties - The fine imposed by the court shall be treated as a Trust
Fund, administered by the Department of Labor and Employment and disbursed exclusively for the needs,
including the costs of rehabilitation and reintegration into the mainstream of society of the working children who
are victims of the violations of this Act, and for the programs and projects that will prevent acts of child labor."
Section 8. Section 27 of the same Act is hereby amended to read as follows:
"Sec. 27. Who May File a Complaint - Complaints on cases of unlawful acts committed against children as
enumerated herein may be filed by the following:
"(a) Offended party;
"(b) Parents or guardians;
"(c) Ascendant or collateral relative within the third degree of consanguinity;
"(d) Officer, social worker or representative of a licensed child-caring institution;
"(e) Officer or social worker of the Department of Social Welfare and Development;
"(f) Barangay chairman of the place where the violation occurred, where the child is residing or employed; or

"(g) At least three (3) concerned, responsible citizens where the violation occurred."
Section 9. The same Act is hereby further amended by adding new sections to Section 16 to be denominated
as Sections 16-A, 16-B and 16-C to read as follows:
"Sec. 16-A. Jurisdiction - The family courts shall have original jurisdiction over all cases involving offenses
punishable under this Act: Provided, That in cities or provinces where there are no family courts yet, the
regional trial courts and the municipal trial courts shall have concurrent jurisdiction depending on the penalties
prescribed for the offense charged.
"The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days
from the date of filing.
"If the preliminary investigation establishes a prima facie case, then the corresponding information shall be
filed in court within forty eight (48) hours from the termination of the investigation.
"Trial of cases under this Act shall be terminated by the court not later than ninety (90) days from the date of
filing of information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date
of submission of the case.
"Sec. 15. Exemptions from Filing Fees. - When the victim of child labor institutes a separate civil action for the
recovery of civil damages, he/she shall be exempt from payment of filing fees.
"Sec. 16-C. Access to Immediate Legal, Medical and Psycho-Social Services - The working child shall have
the right to free legal, medical and psycho-social services to be provided by the State."
Section 10. Implementing Rules and Regulations - The Secretary of Labor and Employment, in coordination
with the Committees on Labor and Employment of both Houses of Congress, shall issue the necessary
Implementing Rules and Regulations (IRR) to effectively implement the provisions of this Act, in consultation
with concerned public and private sectors, within sixty (60) days from the effectivity of this Act.
Such rules and regulations shall take effect upon their publication in two (2) national newspapers of general
circulation.
Section 11. Separability Clause. - If any provision of this Act is declared invalid or unconstitutional, the validity
of the remaining provisions hereof shall remain in full force and effect.
Section 12. Repealing Clause. - All laws, decrees, or rules inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.
Section 13. Effectivity. - This Act shall take effect fifteen (15) days from the date of its complete publication in
the Official Gazette or in at least two (2) national newspapers of general circulation.
RA 7610
Republic Act No. 7610

June 17, 1992

AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD
ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::
ARTICLE I
Title, Policy, Principles and Definitions of Terms
Section 1. Title. This Act shall be known as the "Special Protection of Children Against Abuse, Exploitation
and Discrimination Act."

Section 2. Declaration of State Policy and Principles. It is hereby declared to be the policy of the State to
provide special protection to children from all firms of abuse, neglect, cruelty exploitation and discrimination
and other conditions, prejudicial their development; provide sanctions for their commission and carry out a
program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and
discrimination. The State shall intervene on behalf of the child when the parent, guardian, teacher or person
having care or custody of the child fails or is unable to protect the child against abuse, exploitation and
discrimination or when such acts against the child are committed by the said parent, guardian, teacher or
person having care and custody of the same.1awphi1@alf
It shall be the policy of the State to protect and rehabilitate children gravely threatened or endangered by
circumstances which affect or will affect their survival and normal development and over which they have no
control.
The best interests of children shall be the paramount consideration in all actions concerning them, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities, and
legislative bodies, consistent with the principle of First Call for Children as enunciated in the United Nations
Convention of the Rights of the Child. Every effort shall be exerted to promote the welfare of children and
enhance their opportunities for a useful and happy life.
Section 3. Definition of Terms.
(a)
"Children" refers to person below eighteen (18) years of age or those over but are unable to fully take
care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because
of a physical or mental disability or condition;
(b)
"Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the
following:
(1)

Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2)
Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a
child as a human being;
(3)

Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4)
Failure to immediately give medical treatment to an injured child resulting in serious impairment of his
growth and development or in his permanent incapacity or death.
(c)
"Circumstances which gravely threaten or endanger the survival and normal development of children"
include, but are not limited to, the following;
(1)
Being in a community where there is armed conflict or being affected by armed conflict-related
activities;
(2)
Working under conditions hazardous to life, safety and normal which unduly interfere with their normal
development;
(3)
Living in or fending for themselves in the streets of urban or rural areas without the care of parents or a
guardian or basic services needed for a good quality of life;
(4)
Being a member of a indigenous cultural community and/or living under conditions of extreme poverty
or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a
good quality of life;
(5)

Being a victim of a man-made or natural disaster or calamity; or

(6)
Circumstances analogous to those abovestated which endanger the life, safety or normal development
of children.
(d)
"Comprehensive program against child abuse, exploitation and discrimination" refers to the coordinated
program of services and facilities to protected children against:
(1)

Child Prostitution and other sexual abuse;

(2)

Child trafficking;

(3)

Obscene publications and indecent shows;

(4)

Other acts of abuses; and

(5)

Circumstances which threaten or endanger the survival and normal development of children.1awphi1

ARTICLE II
Program on Child Abuse, Exploitation and Discrimination
Section 4. Formulation of the Program. There shall be a comprehensive program to be formulated, by the
Department of Justice and the Department of Social Welfare and Development in coordination with other
government agencies and private sector concerned, within one (1) year from the effectivity of this Act, to
protect children against child prostitution and other sexual abuse; child trafficking, obscene publications and
indecent shows; other acts of abuse; and circumstances which endanger child survival and normal
development.
ARTICLE III
Child Prostitution and Other Sexual Abuse
Section 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual
abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following:
(a)
Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited
to, the following:
(1)

Acting as a procurer of a child prostitute;

(2)
Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other
similar means;
(3)

Taking advantage of influence or relationship to procure a child as prostitute;

(4)

Threatening or using violence towards a child to engage him as a prostitute; or

(5)
Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such
child in prostitution.
(b)
Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,

That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; and
(c)
Those who derive profit or advantage therefrom, whether as manager or owner of the establishment
where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment
serving as a cover or which engages in prostitution in addition to the activity for which the license has been
issued to said establishment.
Section 6. Attempt To Commit Child Prostitution. There is an attempt to commit child prostitution under
Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the
said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar
establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a
reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person
is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar
establishments. A penalty lower by two (2) degrees than that prescribed for the consummated felony under
Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution
under this Act, or, in the proper case, under the Revised Penal Code.
ARTICLE IV
Child Trafficking
Section 7. Child Trafficking. Any person who shall engage in trading and dealing with children including, but
not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter, shall
suffer the penalty of reclusion temporal to reclusion perpetua. The penalty shall be imposed in its maximum
period when the victim is under twelve (12) years of age.
Section 8. Attempt to Commit Child Trafficking. There is an attempt to commit child trafficking under Section
7 of this Act:1awphi1@alf
(a)
When a child travels alone to a foreign country without valid reason therefor and without clearance
issued by the Department of Social Welfare and Development or written permit or justification from the child's
parents or legal guardian;
(c)
When a person, agency, establishment or child-caring institution recruits women or couples to bear
children for the purpose of child trafficking; or
(d)
When a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other
person simulates birth for the purpose of child trafficking; or
(e)
When a person engages in the act of finding children among low-income families, hospitals, clinics,
nurseries, day-care centers, or other child-during institutions who can be offered for the purpose of child
trafficking.
A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7 hereof shall
be imposed upon the principals of the attempt to commit child trafficking under this Act.
ARTICLE V
Obscene Publications and Indecent Shows
Section 9. Obscene Publications and Indecent Shows. Any person who shall hire, employ, use, persuade,
induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or
model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer
the penalty of prision mayor in its medium period.

If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall
be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or
allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other
acts covered by this section shall suffer the penalty of prision mayor in its medium period.
ARTICLE VI
Other Acts of Abuse
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the
Child's Development.
(a)
Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible
for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum period.
(b)
Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten
(10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret,
pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the
penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand pesos (P50,000):
Provided, That this provision shall not apply to any person who is related within the fourth degree of
consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance
of a social, moral or legal duty.
(c)
Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have
in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision mayor in its
medium period and a fine of not less than Forty thousand pesos (P40,000); Provided, however, That should
the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be
prision mayor in its maximum period, a fine of not less than Fifty thousand pesos (P50,000), and the loss of
parental authority over the minor.
(d)
Any person, owner, manager or one entrusted with the operation of any public or private place of
accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any
person to take along with him to such place or places any minor herein described shall be imposed a penalty of
prision mayor in its medium period and a fine of not less than Fifty thousand pesos (P50,000), and the loss of
the license to operate such a place or establishment.
(e)

Any person who shall use, coerce, force or intimidate a street child or any other child to;

(1)

Beg or use begging as a means of living;

(2)

Act as conduit or middlemen in drug trafficking or pushing; or

(3)
Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to
reclusion perpetua.
For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262,
paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of
murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable
under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of
qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and
white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is
under twelve (12) years age.

The victim of the acts committed under this section shall be entrusted to the care of the Department of Social
Welfare and Development.
ARTICLE VII
Sanctions for Establishments or Enterprises
Section 11. Sanctions of Establishments or Enterprises which Promote, Facilitate, or Conduct Activities
Constituting Child Prostitution and Other Sexual Abuse, Child Trafficking, Obscene Publications and Indecent
Shows, and Other Acts of Abuse. All establishments and enterprises which promote or facilitate child
prostitution and other sexual abuse, child trafficking, obscene publications and indecent shows, and other acts
of abuse shall be immediately closed and their authority or license to operate cancelled, without prejudice to
the owner or manager thereof being prosecuted under this Act and/or the Revised Penal Code, as amended,
or special laws. A sign with the words "off limits" shall be conspicuously displayed outside the establishments
or enterprises by the Department of Social Welfare and Development for such period which shall not be less
than one (1) year, as the Department may determine. The unauthorized removal of such sign shall be
punishable by prision correccional.
An establishment shall be deemed to promote or facilitate child prostitution and other sexual abuse, child
trafficking, obscene publications and indecent shows, and other acts of abuse if the acts constituting the same
occur in the premises of said establishment under this Act or in violation of the Revised Penal Code, as
amended. An enterprise such as a sauna, travel agency, or recruitment agency which: promotes the
aforementioned acts as part of a tour for foreign tourists; exhibits children in a lewd or indecent show; provides
child masseurs for adults of the same or opposite sex and said services include any lascivious conduct with the
customers; or solicits children or activities constituting the aforementioned acts shall be deemed to have
committed the acts penalized herein.
ARTICLE VIII
Working Children
Section 12. Employment of Children. Children below fifteen (15) years of age may be employed except:
(1)
When a child works directly under the sole responsibility of his parents or legal guardian and where
only members of the employer's family are employed: Provided, however, That his employment neither
endangers his life, safety and health and morals, nor impairs his normal development: Provided, further, That
the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary
education; or
(2)
When a child's employment or participation in public & entertainment or information through cinema,
theater, radio or television is essential: Provided, The employment contract concluded by the child's parent or
guardian, with the express agreement of the child concerned, if possible, and the approval of the Department
of Labor and Employment: Provided, That the following requirements in all instances are strictly complied with:
(a)

The employer shall ensure the protection, health, safety and morals of the child;

(b)
the employer shall institute measures to prevent the child's exploitation or discrimination taking into
account the system and level of remuneration, and the duration and arrangement of working time; and;
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent
authorities, a continuing program for training and skill acquisition of the child.
In the above exceptional cases where any such child may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department of Labor and Employment which shall ensure
observance of the above requirement.

The Department of Labor Employment shall promulgate rules and regulations necessary for the effective
implementation of this Section.
Section 13. Non-formal Education for Working Children. The Department of Education, Culture and Sports
shall promulgate a course design under its non-formal education program aimed at promoting the intellectual,
moral and vocational efficiency of working children who have not undergone or finished elementary or
secondary education. Such course design shall integrate the learning process deemed most effective under
given circumstances.
Section 14. Prohibition on the Employment of Children in Certain Advertisements. No person shall employ
child models in all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco
and its byproducts and violence.
Section 15. Duty of Employer. Every employer shall comply with the duties provided for in Articles 108 and
109 of Presidential Decree No. 603.
Section 16. Penalties. Any person who shall violate any provision of this Article shall suffer the penalty of a
fine of not less than One thousand pesos (P1,000) but not more than Ten thousand pesos (P10,000) or
imprisonment of not less than three (3) months but not more than three (3) years, or both at the discretion of
the court; Provided, That, in case of repeated violations of the provisions of this Article, the offender's license
to operate shall be revoked.
ARTICLE IX
Children of Indigenous Cultural Communities
Section 17. Survival, Protection and Development. In addition to the rights guaranteed to children under this
Act and other existing laws, children of indigenous cultural communities shall be entitled to protection, survival
and development consistent with the customs and traditions of their respective communities.
Section 18. System of and Access to Education. The Department of Education, Culture and Sports shall
develop and institute an alternative system of education for children of indigenous cultural communities which
culture-specific and relevant to the needs of and the existing situation in their communities. The Department of
Education, Culture and Sports shall also accredit and support non-formal but functional indigenous educational
programs conducted by non-government organizations in said communities.
Section 19. Health and Nutrition. The delivery of basic social services in health and nutrition to children of
indigenous cultural communities shall be given priority by all government agencies concerned. Hospitals and
other health institution shall ensure that children of indigenous cultural communities are given equal attention.
In the provision of health and nutrition services to children of indigenous cultural communities, indigenous
health practices shall be respected and recognized.
Section 20. Discrimination. Children of indigenous cultural communities shall not be subjected to any and all
forms of discrimination.
Any person who discriminate against children of indigenous cultural communities shall suffer a penalty of
arresto mayor in its maximum period and a fine of not less than Five thousand pesos (P5,000) more than Ten
thousand pesos (P10,000).
Section 21. Participation. Indigenous cultural communities, through their duly-designated or appointed
representatives shall be involved in planning, decision-making implementation, and evaluation of all
government programs affecting children of indigenous cultural communities. Indigenous institution shall also be
recognized and respected.
ARTICLE X
Children in Situations of Armed Conflict

Section 22. Children as Zones of Peace. Children are hereby declared as Zones of Peace. It shall be the
responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the
goal of children as zones of peace. To attain this objective, the following policies shall be observed.
(a)
Children shall not be the object of attack and shall be entitled to special respect. They shall be
protected from any form of threat, assault, torture or other cruel, inhumane or degrading treatment;
(b)
Children shall not be recruited to become members of the Armed Forces of the Philippines of its civilian
units or other armed groups, nor be allowed to take part in the fighting, or used as guides, couriers, or spies;
(c)
Delivery of basic social services such as education, primary health and emergency relief services shall
be kept unhampered;
(d)
The safety and protection of those who provide services including those involved in fact-finding
missions from both government and non-government institutions shall be ensured. They shall not be subjected
to undue harassment in the performance of their work;
(e)
Public infrastructure such as schools, hospitals and rural health units shall not be utilized for military
purposes such as command posts, barracks, detachments, and supply depots; and
(f)
All appropriate steps shall be taken to facilitate the reunion of families temporarily separated due to
armed conflict.
Section 23. Evacuation of Children During Armed Conflict. Children shall be given priority during evacuation
as a result of armed conflict. Existing community organizations shall be tapped to look after the safety and wellbeing of children during evacuation operations. Measures shall be taken to ensure that children evacuated are
accompanied by persons responsible for their safety and well-being.
Section 24. Family Life and Temporary Shelter. Whenever possible, members of the same family shall be
housed in the same premises and given separate accommodation from other evacuees and provided with
facilities to lead a normal family life. In places of temporary shelter, expectant and nursing mothers and
children shall be given additional food in proportion to their physiological needs. Whenever feasible, children
shall be given opportunities for physical exercise, sports and outdoor games.
Section 25. Rights of Children Arrested for Reasons Related to Armed Conflict. Any child who has been
arrested for reasons related to armed conflict, either as combatant, courier, guide or spy is entitled to the
following rights;
(a)

Separate detention from adults except where families are accommodated as family units;

(b) Immediate free legal assistance;

(c) Immediate notice of such arrest to the parents or guardians of the child; and
(d) Release of the child on recognizance within twenty-four (24) hours to the custody of the Department of
Social Welfare and Development or any responsible member of the community as determined by the court.
If after hearing the evidence in the proper proceedings the court should find that the aforesaid child committed
the acts charged against him, the court shall determine the imposable penalty, including any civil liability
chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all
further proceedings and shall commit such child to the custody or care of the Department of Social Welfare and
Development or to any training institution operated by the Government, or duly-licensed agencies or any other
responsible person, until he has had reached eighteen (18) years of age or, for a shorter period as the court
may deem proper, after considering the reports and recommendations of the Department of Social Welfare and
Development or the agency or responsible individual under whose care he has been committed.

The aforesaid child shall subject to visitation and supervision by a representative of the Department of Social
Welfare and Development or any duly-licensed agency or such other officer as the court may designate subject
to such conditions as it may prescribe.
The aforesaid child whose sentence is suspended can appeal from the order of the court in the same manner
as appeals in criminal cases.
Section 26. Monitoring and Reporting of Children in Situations of Armed Conflict. The chairman of the
barangay affected by the armed conflict shall submit the names of children residing in said barangay to the
municipal social welfare and development officer within twenty-four (24) hours from the occurrence of the
armed conflict.
ARTICLE XI
Remedial Procedures
Section 27. Who May File a Complaint. Complaints on cases of unlawful acts committed against the children
as enumerated herein may be filed by the following:
(a) Offended party;
(b) Parents or guardians;
(c) Ascendant or collateral relative within the third degree of consanguinity;1awphi1@ITC
(d) Officer, social worker or representative of a licensed child-caring institution;
(e) Officer or social worker of the Department of Social Welfare and Development;
(f) Barangay chairman; or
(g)

At least three (3) concerned responsible citizens where the violation occurred.

Section 28. Protective Custody of the Child. The offended party shall be immediately placed under the
protective custody of the Department of Social Welfare and Development pursuant to Executive Order No. 56,
series of 1986. In the regular performance of this function, the officer of the Department of Social Welfare and
Development shall be free from any administrative, civil or criminal liability. Custody proceedings shall be in
accordance with the provisions of Presidential Decree No. 603.
Section 29. Confidentiality. At the instance of the offended party, his name may be withheld from the public
until the court acquires jurisdiction over the case.
It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer
or producer in case of television and radio broadcasting, producer and director of the film in case of the movie
industry, to cause undue and sensationalized publicity of any case of violation of this Act which results in the
moral degradation and suffering of the offended party.Lawphi1@alf
Section 30. Special Court Proceedings. Cases involving violations of this Act shall be heard in the chambers
of the judge of the Regional Trial Court duly designated as Juvenile and Domestic Court.
Any provision of existing law to the contrary notwithstanding and with the exception of habeas corpus, election
cases, and cases involving detention prisoners and persons covered by Republic Act No. 4908, all courts shall
give preference to the hearing or disposition of cases involving violations of this Act.
ARTICLE XII
Common Penal Provisions

Section 31. Common Penal Provisions.

(a)
The penalty provided under this Act shall be imposed in its maximum period if the offender has been
previously convicted under this Act;
(b)
When the offender is a corporation, partnership or association, the officer or employee thereof who is
responsible for the violation of this Act shall suffer the penalty imposed in its maximum period;
(c)
The penalty provided herein shall be imposed in its maximum period when the perpetrator is an
ascendant, parent guardian, stepparent or collateral relative within the second degree of consanguinity or
affinity, or a manager or owner of an establishment which has no license to operate or its license has expired
or has been revoked;
(d)
When the offender is a foreigner, he shall be deported immediately after service of sentence and
forever barred from entry to the country;
(e)
The penalty provided for in this Act shall be imposed in its maximum period if the offender is a public
officer or employee: Provided, however, That if the penalty imposed is reclusion perpetua or reclusion
temporal, then the penalty of perpetual or temporary absolute disqualification shall also be imposed: Provided,
finally, That if the penalty imposed is prision correccional or arresto mayor, the penalty of suspension shall also
be imposed; and
(f)
A fine to be determined by the court shall be imposed and administered as a cash fund by the
Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any
immediate member of his family if the latter is the perpetrator of the offense.
ARTICLE XIII
Final Provisions
Section 32. Rules and Regulations. Unless otherwise provided in this Act, the Department of Justice, in
coordination with the Department of Social Welfare and Development, shall promulgate rules and regulations
of the effective implementation of this Act.
Such rules and regulations shall take effect upon their publication in two (2) national newspapers of general
circulation.
Section 33. Appropriations. The amount necessary to carry out the provisions of this Act is hereby authorized
to be appropriated in the General Appropriations Act of the year following its enactment into law and thereafter.
Section 34. Separability Clause. If any provision of this Act is declared invalid or unconstitutional, the
remaining provisions not affected thereby shall continue in full force and effect.
Section 35. Repealing Clause. All laws, decrees, or rules inconsistent with the provisions of this Acts are
hereby repealed or modified accordingly.
Section 36. Effectivity Clause. This Act shall take effect upon completion of its publication in at least two (2)
national newspapers of general circulation.
Approved: June 17, 1992.lawphi1
DO No. 065-04 Rules and regulations of RA 9231
DEPARTMENT ORDER NO. 65-04
.
Rules and Regulations Implementing
Republic Act No. 9231, Amending R.A. 7610, as Amended

Pursuant to Section 10 of Republic Act No. 9231 (An Act Providing for the Elimination of the Worst Forms of
Child Labor and Affording Stronger Protection for the Working Child, Amending for this Purpose Republic Act
No. 7610, as amended, Otherwise Known as the Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act), the following Implementing Rules and Regulations are hereby
promulgated:
Chapter 1 Preliminary Provisions
SECTION 1. Coverage These Rules shall cover all persons and entities engaging the services of or
employing children.
Sec. 2. Declaration of State Policy and Principles The State shall provide special protection to children from
all forms of abuse, neglect, cruelty, exploitation and discrimination and other conditions prejudicial to their
development including child labor and its worst forms; provide sanctions for their commission and carry out a
program for prevention and deterrence of, and crisis intervention in situations of child abuse, exploitation and
discrimination. The State shall intervene on behalf of the child when the parent, guardian, teacher or person
having care or custody of the child fails or is unable to protect the child against abuse, exploitation and
discrimination or when such acts are committed by the said parent, guardian, teacher or person having care
and custody of the child.
The State shall also protect and rehabilitate children gravely threatened or endangered by circumstances
which affect or will affect their survival and normal development and over which they have no control.
.
The best interest of children shall be the paramount consideration in all actions concerning them, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities, and
legislative bodies, consistent with the principles of First Call for Children as enunciated in the United Nations
Convention of the Rights of the Child. Every effort shall be exerted to promote the welfare of children and
enhance their opportunities for a useful and happy life.
Sec. 3. Definition of Terms As used in these Rules, the term:
(a) Child refers to any person under 18 years of age.
(b) Child labor refers to any work or economic activity performed by a child that subjects him/her to any form
of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development.
(c) Working Child refers to any child engaged as follows:
i. when the child is below eighteen (18) years of age, in work or economic activity that is not child labor as
defined in the immediately preceding sub-paragraph, and
ii. when the child below fifteen (15) years of age, (i) in work where he/she is directly under the responsibility of
his/her parents or legal guardian and where only members of the childs family are employed; or (ii)in public
entertainment or information.
(d) Parent refers to either the biological or adoptive mother or father.
(e) Guardian refers to any person who exercises substitute parental authority regardless of whether or not
such parental authority over a child is bestowed by a court.
(f) Members of the family refers to the childs parents, guardian, brothers or sisters whether of full or half
blood, and other ascendants and descendants or collateral relatives within the fourth civil degree of
consanguinity.
(g) Employer refers to any person, whether natural or juridical who, whether for valuable consideration or
not, directly or indirectly procures, uses, avails itself of, contracts out or otherwise derives benefit from the work
or services of a child in any occupation, undertaking, project or activity, whether for profit or not. It includes
any person acting in the interest of the employer.
(h) Department refers to the Department of Labor and Employment.

(i) Collective needs of the family refer to such basic needs as food, shelter, light and water, clothing,
education, medical, transportation and other expenditure items necessary for the survival of the family of the
child.
(j) Work permit refers to the permit secured by the employer, parent or guardian from the Department for any
child below 15 years of age in any work allowed under Republic Act No. 9231.
(k) Hours of work include (1) all time during which a child is required to be at a prescribed workplace, and (2)
all time during which a child is suffered or permitted to work. Rest periods of short duration during working
hours shall be counted as hours worked.
(l) Workplace refers to the office, premises or worksite where a child is temporarily or habitually assigned.
Where there is no fixed or definite workplace, the term shall include the place where the child actually performs
work to render service or to take an assignment, to include households employing children.
(m) Public entertainment or information refers to artistic, literary, and cultural performances for television
show, radio program, cinema or film, theater, commercial advertisement, public relations activities or
campaigns, print materials, internet, and other media.
(n) Formal education refers to the institutionalized, hierarchically structured and chronologically guided
educational system running from elementary to tertiary levels.
(o) Non-formal education refers to any organized, systematic educational activity conducted outside of the
formal education system to provide selected type of learning.
(p) Alternative learning system refers to a parallel and comparable learning system which provides a viable
alternative to the existing formal education system.
(q) Forced labor and slavery refers to the extraction of work or services from any person by means of
enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of
authority or moral ascendancy, debt bondage or deception.
(r) Child pornography refers to any representation of a child engaged in real or simulated explicit sexual
activities or any representation of the sexual parts of a child for primarily sexual purposes.
(s) Recovery and reintegration refers to various interventions and services that facilitate the process of
healing and eventual return of the child to the family and community.
(t) Normal development of the child refers to the physical, emotional, mental, and spiritual growth of a child
within a safe and nurturing environment where he/she is given adequate nourishment, care and protection and
the opportunity to perform tasks appropriate at each stage of development.
Chapter 2 Prohibition on the Employment of Children
Sec. 4. General Prohibition Except as otherwise provided in these Rules, no child below 15 years of age
shall be employed, permitted or suffered to work, in any public or private establishment.
Sec. 5. Prohibition on the Employment of Children in Worst Forms of Child Labor No child shall be engaged
in the worst forms of child labor. The phrase worst forms of child labor shall refer to any of the following:
(a) All forms of slavery, as defined under the Anti-trafficking in Persons Act of 2003, or practices similar to
slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor,
including recruitment children for use in armed conflict.
(b) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for
pornographic performances;

(c) The use, procuring or offering of a child for illegal or illicit activities, including the production or trafficking of
dangerous drugs or volatile substances prohibited under existing laws; or
(d) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be
harmful to the health, safety or morals of children, such that it:
i. Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
ii. Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically
or may prejudice morals; or
iii. Is performed underground, underwater or at dangerous heights; or
iv. Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive poweractuated tools; or
v. Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical
strength or contortion, or which requires the manual transport of heavy loads; or
.
vi. Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements,
substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious
components and the like, or to extreme temperatures, noise levels or vibrations; or
vii. Is performed under particularly difficult conditions; or
viii. Exposes the child to biological agents such as bacteria, fungi, viruses, protozoa, nematodes and other
parasites; or
ix. Involves the manufacture or handling of explosives and other pyrotechnic products.
Sec. 6. Prohibition on the Employment of Children in Certain Advertisements No child below 18 years of age
shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages,
intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography.
Chapter 3 Exceptions to the Prohibition
Sec. 7. Exceptions and Conditions The following shall be the only exceptions to the prohibition on the
employment of a child below 15 year of age:
(a) When the child works under the sole responsibility of his/her parents or guardian, provided that only
members of the childs family are employed.
(b) When the childs employment or participation in public entertainment or information is essential, regardless
of the extent of the childs role.
Such employment shall be strictly under the following conditions:
i. The total number of hours worked shall be in accordance with Section 15 of these Rules;
ii. The employment does not endanger the childs life, safety, health and morals, nor impair the childs normal
development;
iii. The child is provided with at least the mandatory elementary or secondary education; and
iv. The employer secures a work permit for the child in accordance with Sec. 8-12 of these Rules.
Chapter 4 Requirements to Avail of Exception To Employment Prohibition
Sec. 8. Work Permit Except as provided is Section 13, no child below 15 years of age shall be allowed to
commence work without a work permit. An employer must first secure a work permit from the Regional Office
of the Department having jurisdiction over the workplace of the child. In cases where the work is done in more
than one workplace falling under the jurisdiction of more than one Regional Office, the application shall be
made with the Regional Office having jurisdiction over the principal office of the employer. However, at least

two days prior to the performance of the work, the employer shall inform the Regional Office having jurisdiction
over the workplace of the activities to be under taken involving the child.
Sec. 9. Requirements for the Issuance of Work Permit The employer shall submit to the appropriate
Regional Office the Following:
(a) A duly accomplished and verified application for work permit containing the following information:
i. Terms and conditions of employment including hours of work, number of working days, remuneration, and
rest period, which shall be in accordance with law;
ii. Measures to ensure the protection, health, safety, morals, and normal development of the child, including
but not limited to the following:
1. comfortable workplace and adequate quarters;
2. break or rest periods in comfortable day beds or couches;
3. clean and separate dressing rooms and toilet facilities for boys and girls;
4. provision for adequate meals and snacks and sanitary eating facility;
5. provision of all the necessary assistance to ensure the adequate and immediate medical and dental
attendance and treatment to an injured or sick child in case of emergency.
(b) Except when the child is below seven years old,
i. Proof that the child is enrolled and regularly attending elementary or secondary school classes, consisting of
certificate of enrolment for the current year or current school identification or report card; or
ii. If the child is not enrolled, a brief description of the program for education, training and skills acquisition for
the child, in accordance with Section 19 (b) of these Rules.
(c) An authenticated copy of the childs Birth Certificate or a Certificate of late Registration of Birth issued by
the NSO or the city/municipal registrar;
(d) A medical certificate issued by a licensed physician stating that he/she has personally examined the child
for whom a work permit is being secured, and that the child is fit to undertake the work in which he/she is to be
engaged. Such certificate must bear in print the certifying physicians full name and his/her license number;
(e) Two passport size photographs of the child;
(f) When the employer is the parent, guardian, or a family member other than the parent of the child, he/she
shall present any valid document such as latest passport, latest postal/company identification card, and drivers
license establishing his/her identity. A legal guardian is likewise required to present a duly authenticated proof
of legal guardianship while a family member shall present any proof of relationship to the child;
(g) When the employer is in public entertainment or information, he/she shall submit a certified true copy of the
employers business permit or certificate of registration and a written employment contract to be approved by
the Department. An express agreement of the child to the provisions of the contract is needed when such child
is between seven and below 15 years of age.
SECTION 10. Application Fee The employer shall pay an application fee of One Hundred Philippine Pesos
(P100.00) to cover administrative costs. This amount may be reviewed and adjusted by the Secretary of Labor
and Employment from time to time subject to applicable regulations.
SECTION 11. Action on the Application Within three working days from the employers compliance with Sec.
8-10, the Regional Office shall require the appearance of the childs parent, guardian, or employer, or the child
himself or herself as may be appropriate, to validate the information indicated in the application and to educate
such parent, guardian, or employer, on child labor laws and regulations.
The Regional Office, through the Regional Director, shall issue the work permit within three days from
compliance with all the foregoing requirements. Non-compliance with the requirements shall automatically
result in the denial of the application. In such instances, the application shall be deemed not filed and the
Regional Office shall immediately return it to the applicant, indicating the requirements that were not complied
with.

SECTION 12. Validity of Work Permit The work permit shall state the period of its validity based on the
employment contract of the application for work permit, as the case may be. However, the period of validity
shall in no case exceed one year.
SECTION 13. Employment of Spot Extras In public entertainment or information, the requirements for the
issuance of work permit stated in Sec. 8-12 shall not be applicable to the employment of spot extras or those
being cast outright on the day of the filming or taping. Instead, the employer shall file a notice with the
Regional Office where the work is to be performed that it will undertake activities involving child work. The
notice shall be in the form prescribed by the Department and shall state the approximate number of child
workers to be employed, the date, place and time the work is to be performed, and an undertaking that the
employment shall be in conformity with Republic Act No. 9231 and these Rules.
SECTION 14. Compliance with E-Commerce Law The Department shall develop systems to enable parties
to comply, through electronic media, with the documentary requirements set forth in these Rules. It shall also
set up a database of all contracts filed and work permits issued which shall be accessible to the public, subject
to reasonable rules of access which the Department may adopt.
Chapter 5 Hours of Work
SECTION 15. Hours of Work of a Working Child The following hours of work shall be observed for any child
allowed to work under Republic Act No. 9231 and these Rules:
(a) For a child below 15 years of age, the hours of work shall not be more than twenty (20) hours as week,
provided that the work shall not be more than four hours at any given day;
(b) For a child 15 years of age, but below 18, the hours of work shall not be more than eight hours a day, and
in no case beyond 40 hours a week; and
(c) No child below 15 year of age shall be allowed to work between eight oclock in the evening and six oclock
in the morning of the following day and no child 15 years of age but below 18 shall be allowed to work between
ten oclock in the evening and six oclock in the morning of the following day.
Sleeping time as well travel time of a child engaged in public entertainment or information from his/her
residence to his/her workplace shall not be included as hours worked without prejudice to the application of
existing rules on employees compensation.
Chapter 6 Working Childs Income
SECTION 16. Ownership and Use of the Working Childs Income The wages, salaries, earnings and other
income of the working child belong to him/her in ownership and shall be set aside primarily for his/her support,
education, or skills acquisition and secondarily to the collective needs of the family: Provided, That not more
than twenty percent (20%) of the childs income may be used for the collective needs of the family.
SECTION 17. Administration of the Working Childs Income The income of the working child and/or the
property acquired through his/her work shall be administered by both parents. In the absence of , or incapacity
of either of the parents, the other parent shall administer the same. In case both parents are absent or
incapacitated, the order of preference on parental authority shall be in accordance with Article 216 of the
Family Code, as follows:
(a) The surviving grandparent; in case several survive, the one designated by the court taking into account all
relevant considerations, especially the choice of the child over seven years of age, unless the grandparent
chosen is unfit;
.
(b) The oldest brother or sister, over 21 years of age, unless unfit or disqualified; and
.
(c) The childs actual custodian over 21 years of age, unless unfit or disqualified.

SECTION 18. Preservation of the Working Childs Income The income of the working child shall be
deposited in a Trust Fund or Savings Account set up or opened under his/her name by the administrator of
such income, subject to the conditions set forth in this Section and the Civil Code.
The administrator shall make an accounting of all wages, salaries, earnings and other income of the child.
When the childs gross earnings in a year amount to at least Two Hundred Thousand Pesos (P200,000.00),
the administrator shall set up a Trust Fund for the child where at least thirty percent (30%) of such amount
shall be deposited.
.
For a child earning less than P200,000.00 a year, at least thirty percent (30%) of his/her income may be
deposited in a Savings Account each time the child receives an income. The accumulated savings shall be
immediately transferred to the Trust Fund for the child should his/her total gross income for a given year is at
least Two Hundred Thousand Pesos (P200,000.00).
.
The child shall have full control over the Trust Fund upon reaching the age of majority. The administrator shall
render a semi-annual accounting of the Trust Fund to the concerned Regional Office of the Department. He or
she shall be required to submit, whether actual or on-line, a verified financial statement in an appropriate form
prescribed by the Department.
Chapter 7 Education, Training and Other Services
SECTION 19. Access to Education and Training for the Working Child Every child shall have access to
formal or non-formal education.
(a) No child shall be deprived of formal, non-formal or alternative learning systems of education. In all cases
where the child is allowed to work, the employer shall provide the child with access to at least elementary
and/or secondary education. No employer shall make a child work during his/her school hours, and hinder
his/her access to education during school days.
(b) The continuing program for education and training for the working child shall be that developed by the
Department of Education for formal, non-formal and alternative learning systems of education, or by the
Technical Education and Skills Development Authority, whichever is applicable to the circumstances of the
child.
Sec. 20. Access to Immediate Legal, Medical and Psycho-Social Services Working children, including
victims of child labor shall have the right to free legal, medical and psycho-social services to be provided by the
State through agencies mandated to provide such services, as well as through networks like the National
Program Against Child Labor, other existing interagency mechanisms, or those that may be established.
The Department, on its own or in collaboration with concerned institutions, shall set up a mechanism to
provide free legal services for working children and their parents or guardians. Such services shall include the
provision of information on the childs rights or procedures for filing complaints and claiming compensation, and
on such other legal remedies available to them.
The Department shall facilitate the provision of health services to working children and victims of child labor in
partnership with concerned sectors. Health services include primary or preventive, secondary or curative, and
tertiary or rehabilitative services, or such services as may be necessary to address physical, psychological and
social problems arising from child labor.
The Department shall refer working children and victims of child labor to appropriate agencies and
organizations for psycho-social services.
The delivery of the above services shall be without prejudice to similar services provided by other agencies,
conformably with their own mandates. The Department may also enlist the assistance of non-governmental
organizations and other groups in the delivery of these services. In every case, the special needs and peculiar
situations of working children, including victims of child labor, shall be taken into account.
Chapter 8 Enforcement and Administration

Sec. 21. Actions of the Secretary of Labor and Employment or Regional Director In case of violation, the
Secretary of Labor and Employment or the Regional Director as his or her authorized representative, shall
undertake the following actions:
(a) Order the immediate and permanent closure of the establishment if:
i. The violation of any provision of Republic Act No. 9231 has resulted in the death, insanity or serious physical
injury of a child employed in such establishment; or
ii. Such firm or establishment is employing a child for prostitution or obscene or lewd shows.
The employer shall pay all employees affected by the closure their separation pay and other monetary benefits
provided for by law.
(b) Order the immediate and temporary closure of the establishment if there is imminent danger to the life and
limb of the child in accordance with the occupational safety and health standards. An imminent danger is a
condition or practice that could reasonably be expected to cause death or serious physical harm.
In no case shall the closure be lifted unless the imminent danger has been abated. For the duration of the
closure, the employer shall pay the wages of all employees affected. If, after due hearing, the closure is made
permanent, the employer shall pay all employees affected their separation benefits, as provided in the
immediately preceding subsection.
(c) In both cases, require the employer to:
i. Shoulder the transportation cost of the child from the place of work to the DSWD-accredited halfway house
and to the childs residence; and
ii. Shoulder the total actual cost of medical management, recovery and reintegration of the child, or in case of
death, the childs funeral expenses;
Sec. 22. Grounds for Suspension and Cancellation of Work Permit The Regional Director shall suspend or
cancel the work permit issued to a working child under the following instances:
(a) If there is fraud or misrepresentation in the application for work permit or any of its supporting documents;
(b) If the terms and conditions set forth in the childs employment contract and/or employers undertaking have
been violated;
(c) If the employer fails to institute measures to ensure the protection, health, safety, morals, and normal
development of the child as required in Sec. 7 (b)ii;
(d) If the employer fails to formulate and implement a program for the education, training and skills acquisition
of the child; or
(e) If a child has been deprived access to formal, non-formal or alternative learning systems of education.
Sec. 23. Violations Not Resulting in Death, Insanity or Injury of the Child The Regional Director, after due
notice and hearing, and without prejudice to the filing of the appropriate criminal and civil actions, shall:
(a) In case of a first violation, issue a compliance order for immediate restitution and correction of the violation.
Failure to comply with said order constitutes a second violation;
(b) In case of a second violation, issue a compliance order for immediate restitution and correction of the
violation and prohibit the employer from hiring a child for six months commencing from date of last offense.
Failure to comply with said order constitutes a third violation; and
(c) In case of a third violation, issue a compliance order for immediate restitution and correction of the
violation. Failure to comply with said order constitutes a fourth violation justifying closure of the establishment.
In appropriate cases, the Regional Director may file against the employer a case for indirect contempt as
provided for under Rule 71 of the Revised Rules of Court.
Sec. 24. Enforcement Procedure. The proceedings arising from Sections 21, 22 and 23 shall be summary in
nature. It may be initiated motu proprio by the Department or upon complaint by any interested party.

Permanent or temporary closure shall be effected upon service by the Regional Director of a notice of closure
on the employer. Within 24 hours from notice, the Regional Director shall call a hearing to confirm the closure,
in which the employer shall be given the opportunity to present evidence why closure is not an appropriate
remedy. Within 72 hours from the last hearing, the Regional Director shall issue an order confirming or lifting
the closure, as the case may be.
In the case of suspension or cancellation of work permit, the Regional Director shall serve a notice on the
employer and the parent or guardian of the working child, who shall have three days from receipt of the notice
to show cause why the work permit should not be cancelled or suspended. The Regional Director shall have
ten days from service of notice within which to issue a revocation, suspension or dismissal order.
Any motion for reconsideration of the Regional Directors action shall be resolved by the Secretary of Labor
and Employment. Upon issuance of the notice and during the pendency of the proceedings, the child
concerned shall not be allowed to work.
In the event that a violation constituting a ground for cancellation or suspension of work permit is committed in
a workplace outside the jurisdiction of the Regional Office which issued the work permit, the Regional Office
having jurisdiction over the workplace shall immediately stop the employer from requiring the child to work.
Within 24 hours thereafter, the Regional Office having jurisdiction of the workplace shall prepare a report to the
Regional Office which issued the work permit, for the latter to commence appropriate cancellation or
suspension proceedings.
Sec. 25. Industry Guidelines and Self-Policing Mechanisms The Department may issue appropriate industryspecific guidelines, taking into account the peculiar circumstances of each industry, upon consultation with
concerned sectors.
Establishments with at least 200 workers or those with certified collective bargaining agreements (CBAs) shall
be encouraged to adopt a self-assessment mode pursuant to Section 1 (a) of Department Order No. 57-04,
series of 2004 (Labor Standards Enforcement Framework).
Employers, workers and their organizations, professional organizations or business federations are
encouraged to establish or adopt mechanisms to monitor their ranks and take corrective action against erring
members. The Department shall provide technical assistance in setting up such mechanisms.
Sec. 26. Administration of Trust Fund from Fines and Penalties The finest imposed by the court upon any
violator of Republic Act No. 9231 shall, subject to existing government accounting and auditing rules and
regulations, including the provision on trust funds under the General Appropriations Act, accrue to the DOLEoffice of the Secretary Trust Fund for Working Children. This trust fund shall be administered by the
Department and disbursed exclusively for programs and projects preventing child labor and mitigating its
effects.
Within two months after the date of effectivity of these Rules, the Department shall set up the Trust Fund for
Working Children in accordance with existing government accounting, auditing, and Department of Budget and
Management requirements. The Department shall:
(a) Draw up the procedures for the use and disbursement of the Trust Fund;
(b) Formulate and supervise the implementation of programs for qualified beneficiaries of the Trust Fund; and
(c) Monitor, through the Regional Offices of the Department, the status of child labor cases that may involve
the award of fines under Republic Act No. 9231.
Chapter 9 Miscellaneous Provisions
Sec. 27. Filing of Complaints Complaints on violations specified under Republic Act No. 9231 and these
Rules which fall under the jurisdiction of the regular courts shall be filed by persons identified in said law, and
in accordance with the Rules of Court.

Sec. 28. Disposition of Investigation Report - The investigation report of the Department on violations that
may constitute a criminal offense under Republic Act No. 9231, together with other relevant documents and
evidence, shall be immediately forwarded to the provincial or city prosecutor concerned who shall determine
the filing of the appropriate criminal charge.
Sec. 29. Effects on Other Issuances These Rules supersede Department Order No. 18, series of 1994 or
the Rules and Regulations Implementing Republic Act No. 7658. All other Issuances of the Department
inconsistent with the provisions of these Rules are deemed modified accordingly.
Sec. 30. Effects on Existing Contracts These Rules shall not be interpreted to impair contracts executed
prior to its effectivity. All other general rules on non-impairment of contracts shall apply.
Sec. 31. Separability Clause If any of the provisions of these Rules is declared invalid or unconstitutional,
the validity of the remaining provisions hereof shall remain in full force and effect.
Sec. 32. Effectivity These Rules shall take effect 15 days from the date of its complete publication in two
national newspapers of general circulation.
Manila, Philippines, 26 July 2004.

PATRICIA A. STO. TOMAS

Secretary

Hazardous Workplaces. Department Order No. 4-1999

DEPARTMENT ORDER NO. 04
Series of 1999
HAZARDOUS WORK AND ACTIVITIES TO PERSONS BELOW 18
YEARS OF AGE
SECTION 1. Basis. This Guidelines is being issued pursuant to Article 139(c), Book III of the Labor Code of
the Philippines, as amended, and its implementing rules and regulations, and Republic Act No. 7658, An Act
Prohibiting the Employment of Children Below 15 Years of Age in Public and Private Undertakings, Amending
for this Purpose Section 12, Article VIII of Republic Act No. 7610 (otherwise known as the Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act.).
SECTION 2. Policy. - (a) The employment of a person below eighteen (18) years of age in an undertaking
which is hazardous or deleterious in nature as identified in this Guidelines shall be prohibited.
(b) The employment of children below fifteen (15) years of age in any undertakings is likewise prohibited,
except only in employment that would not endanger their life, safety, health and morals, or impair their normal
development, and in any event subject to the requirements of Republic Act No. 7658.
SECTION 3. Coverage. - The following work and activities are hereby declared hazardous to persons below 18
years of age without prejudice to Section 14, Article VIII of Republic Act No. 7610; to DOLE Memorandum
Circular No. 2, Series of 1998 (Technical Guidelines for Classifying Hazardous and Non-Hazardous
Establishments, Workplaces and Work Processes) and to other work and activities that may subsequently be
declared as such:
1. Work which exposes children to physical, psychological or sexual abuse, such as in:
lewd shows (stripteasers, burlesque dancers, and the like)
cabarets
bars (KTV, karaoke bars)
dance halls
bath houses and massage clinics
escort service

 gambling halls and places

2. Work underground, under water, at dangerous heights or at unguarded heights of two meters and above, or
in confined places, such as in:
mining
deep sea fishing/diving
installing and repairing of telephone, telegraph and electrical lines; cable fitters
painting buildings
window cleaning
fruit picking involving climbing 3. Work with dangerous machinery, equipment and tools, or which
involves manual handling or transport of heavy loads, such as in:
logging
construction
quarrying
operating agricultural machinery in mechanized farming
metal work and welding
driving or operating havy equipment such as payloaders, backhoes, bulldozers, cranes, pile driving
equipment, trailers, road rollers, tractor
lifting appliances scaffold winches, hoists, excavators and loading machines
operating or setting motor-driven machines such as saws, presses, and wood -working machines
operating power-driven tools such as drills and jack hammers
stevedoring
working in airport hangars
working in warehouses
working in docks
4. Work in unhealthy environment which may expose children to hazardous processes, to temperatures, noise
levels or vibrations damaging to their health, to toxic, corrosive, poisonous, noxious, explosive, flammable and
combustible substances or composites, to harmful biological agents, or to other dangerous chemicals including
pharmaceuticals, such as in:
manufacture or handling of pyrotechnics
tanning
pesticide spraying
blacksmithing, hammersmiths, forging
extracting lard and oil
tiling and greasing of heavy machinery
fiber and plastic preparing
bleaching, dyeing, and finishing of textiles using chemicals
embalming and as undertakers
painting and as finishers in metal craft industries
applying of adhesive/solvent in footwear, handicraft, and woodwork industries
brewing and distilling of alcoholic beverages
recycling of batteries and containers or materials used or contaminated with chemicals
working in abattoirs or slaughterhouses
garbage collecting
handling of animal manure in poultry houses or as fertilizers (compost and other decaying matter
included) in farming
working in hospitals or other health care facilities
assisting in laboratories and x-ray work
welding
working in furnaces and kilns
working in discotheques
working in video arcades
5. Work under particularly difficult conditions such as work for long hours or during the night, or work where the
child is unreasonably confined to the premises of the employer.

SECTION 4. Applicability of this Guideline to Domestic or Household Service. - Persons between 15 and 18
years of age may be allowed to engage in domestic or household service, subject in all cases to the limitations
prescribed in Nos. 1 to 5 of Section 3 herein.
SECTION 5. Enforcement. - The labor standards enforcement officers of the Department of Labor and
Employment shall use this Guidelines in monitoring the compliance with labor standards and laws related to
child labor which provides for only two exceptions allowing children below fifteen years of age to be employed
provided such employment would not endanger their life, safety, health and morals, nor impair their normal
development.
SECTION 6. Separability Clause. - If any part or provision of this Guidelines is declared invalid or
unconstitutional, the remaining provisions not affected thereby shall continue in full force and effect.
This Department Order shall take effect fifteen days after its complete publication in two (2) newspaper of
general circulation.
Accordingly, Department Order No. 4, approved on June 8, 1973, is hereby superseded.
Book Four Health, Safety and Social Welfare
Escasinas, et.al vs. Shangri-las Mactan Island Resort. G.R. No. 178827

SECOND DIVISION
JEROMIE D. ESCASINAS and EVAN RIGOR SINGCO,
Petitioners,

- versus -

SHANGRI-LAS MACTAN ISLAND RESORT and DR. JESSICA J.R. PEPITO,

Respondents.
G.R. No. 178827
Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
NACHURA,*
BRION, and
PERALTA,** JJ.
Promulgated:
March 4, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Registered nurses Jeromie D. Escasinas and Evan Rigor Singco (petitioners) were engaged in 1999 and 1996,
respectively, by Dr. Jessica Joyce R. Pepito (respondent doctor) to work in her clinic at respondent Shangrilas Mactan Island Resort (Shangri-la) in Cebu of which she was a retained physician.

In late 2002, petitioners filed with the National Labor Relations Commission (NLRC) Regional Arbitration
Branch No. VII (NLRC-RAB No. VII) a complaint[1] for regularization, underpayment of wages, non-payment of
holiday pay, night shift differential and 13th month pay differential against respondents, claiming that they are
regular employees of Shangri-la. The case was docketed as RAB Case No. 07-11-2089-02.
Shangri-la claimed, however, that petitioners were not its employees but of respondent doctor whom it retained
via Memorandum of Agreement (MOA)[2] pursuant to Article 157 of the Labor Code, as amended.
Respondent doctor for her part claimed that petitioners were already working for the previous retained
physicians of Shangri-la before she was retained by Shangri-la; and that she maintained petitioners services
upon their request.
By Decision[3] of May 6, 2003, Labor Arbiter Ernesto F. Carreon declared petitioners to be regular
employees of Shangri-la. The Arbiter thus ordered Shangri-la to grant them the wages and benefits due them
as regular employees from the time their services were engaged.
In finding petitioners to be regular employees of Shangri-la, the Arbiter noted that they usually perform work
which is necessary and desirable to Shangri-las business; that they observe clinic hours and render services
only to Shangri-las guests and employees; that payment for their salaries were recommended to Shangri-las
Human Resource Department (HRD); that respondent doctor was Shangri-las in-house physician, hence,
also an employee; and that the MOA between Shangri-la and respondent doctor was an insidious mechanism
in order to circumvent [the doctors] tenurial security and that of the employees under her.
Shangri-la and respondent doctor appealed to the NLRC. Petitioners appealed too, but only with respect
to the non-award to them of some of the benefits they were claiming.
By Decision[4] dated March 31, 2005, the NLRC granted Shangri-las and respondent doctors appeal
and dismissed petitioners complaint for lack of merit, it finding that no employer-employee relationship exists
between petitioner and Shangri-la. In so deciding, the NLRC held that the Arbiter erred in interpreting Article
157 in relation to Article 280 of the Labor Code, as what is required under Article 157 is that the employer
should provide the services of medical personnel to its employees, but nowhere in said article is a provision
that nurses are required to be employed; that contrary to the finding of the Arbiter, even if Article 280 states
that if a worker performs work usually necessary or desirable in the business of the employer, he cannot be
automatically deemed a regular employee; and that the MOA amply shows that respondent doctor was in fact
engaged by Shangri-la on a retainer basis, under which she could hire her own nurses and other clinic
personnel.
Brushing aside petitioners contention that since their application for employment was addressed to Shangri-la,
it was really Shangri-la which hired them and not respondent doctor, the NLRC noted that the applications for
employment were made by persons who are not parties to the case and were not shown to have been actually
hired by Shangri-la.
On the issue of payment of wages, the NLRC held that the fact that, for some months, payment of petitioners
wages were recommended by Shangri-las HRD did not prove that it was Shangri-la which pays their wages. It
thus credited respondent doctors explanation that the recommendations for payment were based on the
billings she prepared for salaries of additional nurses during Shangri-las peak months of operation, in
accordance with the retainership agreement, the guests payments for medical services having been paid
directly to Shanrgi-la.
Petitioners thereupon brought the case to the Court of Appeals which, by Decision[5] of May 22, 2007, affirmed
the NLRC Decision that no employer-employee relationship exists between Shangri-la and petitioners. The
appellate court concluded that all aspects of the employment of petitioners being under the supervision and
control of respondent doctor and since Shangri-la is not principally engaged in the business of providing
medical or healthcare services, petitioners could not be regarded as regular employees of Shangri-la.
Petitioners motion for reconsideration having been denied by Resolution[6] of July 10, 2007, they interposed
the present recourse.

Petitioners insist that under Article 157 of the Labor Code, Shangri-la is required to hire a full-time registered
nurse, apart from a physician, hence, their engagement should be deemed as regular employment, the
provisions of the MOA notwithstanding; and that the MOA is contrary to public policy as it circumvents tenurial
security and, therefore, should be struck down as being void ab initio. At most, they argue, the MOA is a mere
job contract.
And petitioners maintain that respondent doctor is a labor-only contractor for she has no license or business
permit and no business name registration, which is contrary to the requirements under Sec. 19 and 20 of the
Implementing Rules and Regulations of the Labor Code on sub-contracting.
Petitioners add that respondent doctor cannot be a legitimate independent contractor, lacking as she does in
substantial capital, the clinic having been set-up and already operational when she took over as retained
physician; that respondent doctor has no control over how the clinic is being run, as shown by the different
orders issued by officers of Shangri-la forbidding her from receiving cash payments and several purchase
orders for medicines and supplies which were coursed thru Shangri-las Purchasing Manager, circumstances
indubitably showing that she is not an independent contractor but a mere agent of Shangri-la.
In its Comment,[7] Shangri-la questions the Special Powers of Attorneys (SPAs) appended to the petition for
being inadequate. On the merits, it prays for the disallowance of the petition, contending that it raises factual
issues, such as the validity of the MOA, which were never raised during the proceedings before the Arbiter,
albeit passed upon by him in his Decision; that Article 157 of the Labor Code does not make it mandatory for a
covered establishment to employ health personnel; that the services of nurses is not germane nor
indispensable to its operations; and that respondent doctor is a legitimate individual independent contractor
who has the power to hire, fire and supervise the work of the nurses under her.
The resolution of the case hinges, in the main, on the correct interpretation of Art. 157 vis a vis Art. 280 and the
provisions on permissible job contracting of the Labor Code, as amended.
The Court holds that, contrary to petitioners postulation, Art. 157 does not require the engagement of full-time
nurses as regular employees of a company employing not less than 50 workers. Thus, the Article provides:
ART. 157. Emergency medical and dental services. It shall be the duty of every employer to furnish his
employees in any locality with free medical and dental attendance and facilities consisting of:

(a)
The services of a full-time registered nurse when the number of employees exceeds fifty (50) but
not more than two hundred (200) except when the employer does not maintain hazardous workplaces, in which
case the services of a graduate first-aider shall be provided for the protection of the workers, where no
registered nurse is available. The Secretary of Labor shall provide by appropriate regulations the services that
shall be required where the number of employees does not exceed fifty (50) and shall determine by
appropriate order hazardous workplaces for purposes of this Article;

(b)
The services of a full-time registered nurse, a part-time physician and dentist, and an emergency
clinic, when the number of employees exceeds two hundred (200) but not more than three hundred (300); and
(c)
The services of a full-time physician, dentist and full-time registered nurse as well as a dental clinic,
and an infirmary or emergency hospital with one bed capacity for every one hundred (100) employees when
the number of employees exceeds three hundred (300).
In cases of hazardous workplaces, no employer shall engage the services of a physician or dentist who cannot
stay in the premises of the establishment for at least two (2) hours, in the case of those engaged on part-time
basis, and not less than eight (8) hours in the case of those employed on full-time basis. Where the
undertaking is nonhazardous in nature, the physician and dentist may be engaged on retained basis, subject to

such regulations as the Secretary of Labor may prescribe to insure immediate availability of medical and dental
treatment and attendance in case of emergency. (Emphasis and underscoring supplied)
Under the foregoing provision, Shangri-la, which employs more than 200 workers, is mandated to furnish its
employees with the services of
a full-time registered nurse, a part-time physician and dentist, and an
emergency clinic which means that it should provide or make available such medical and allied services to its
employees, not necessarily to hire or employ a service provider. As held in Philippine Global Communications
vs. De Vera:[8]
x x x while it is true that the provision requires employers to engage the services of medical practitioners in
certain establishments depending on the number of their employees, nothing is there in the law which says that
medical practitioners so engaged be actually hired as employees, adding that the law, as written, only requires
the employer to retain, not employ, a part-time physician who needed to stay in the premises of the nonhazardous workplace for two (2) hours. (Emphasis and underscoring supplied)
The term full-time in Art. 157 cannot be construed as referring to the type of employment of the person
engaged to provide the services, for Article 157 must not be read alongside Art. 280[9] in order to vest
employer-employee relationship on the employer and the person so engaged. So De Vera teaches:
x x x For, we take it that any agreement may provide that one party shall render services for and in behalf of
another, no matter how necessary for the latters business, even without being hired as an employee. This setup is precisely true in the case of an independent contractorship as well as in an agency agreement. Indeed,
Article 280 of the Labor Code, quoted by the appellate court, is not the yardstick for determining the existence
of an employment relationship. As it is, the provision merely distinguishes between two (2) kinds of
employees, i.e., regular and casual. x x x[10] (Emphasis and underscoring supplied)
The phrase services of a full-time registered nurse should thus be taken to refer to the kind of services that
the nurse will render in the companys premises and to its employees, not the manner of his engagement.
As to whether respondent doctor can be considered a legitimate independent contractor, the pertinent sections
of DOLE Department Order No. 10, series of 1997, illuminate:
Sec. 8. Job contracting. There is job contracting permissible under the Code if the following conditions are
met:
(1) The contractor carries on an independent business and undertakes the contract work on his own account
under his own responsibility according to his own manner and method, free from the control and direction of his
employer or principal in all matters connected with the performance of the work except as to the results
thereof; and
(2) The contractor has substantial capital or investment in the form of tools, equipment, machineries, work
premises, and other materials which are necessary in the conduct of his business.
Sec. 9. Labor-only contracting. (a) Any person who undertakes to supply workers to an employer shall be
deemed to be engaged in labor-only contracting where such person:
(1) Does not have substantial capital or investment in the form of tools, equipment, machineries, work
premises and other materials; and
(2) The workers recruited and placed by such persons are performing activities which are directly related to
the principal business or operations of the employer in which workers are habitually employed.

(b) Labor-only contracting as defined herein is hereby prohibited and the person acting as contractor shall be
considered merely as an agent or intermediary of the employer who shall be responsible to the workers in the
same manner and extent as if the latter were directly employed by him.
(c) For cases not falling under this Article, the Secretary of Labor shall determine through appropriate orders
whether or not the contracting out of labor is permissible in the light of the circumstances of each case and
after considering the operating needs of the employer and the rights of the workers involved. In such case, he
may prescribe conditions and restrictions to insure the protection and welfare of the workers. (Emphasis
supplied)
The existence of an independent and permissible contractor relationship is generally established by
considering the following determinants: whether the contractor is carrying on an independent business; the
nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign
the performance of a specified piece of work; the control and supervision of the work to another; the
employer's power with respect to the hiring, firing and payment of the contractor's workers; the control of the
premises; the duty to supply the premises, tools, appliances, materials and labor; and the mode, manner and
terms of payment.[11]
On the other hand, existence of an employer- employee relationship is established by the presence of the
following determinants: (1) the selection and engagement of the workers; (2) power of dismissal; (3) the
payment of wages by whatever means; and (4) the power to control the worker's conduct, with the latter
assuming primacy in the overall consideration.[12]
Against the above-listed determinants, the Court holds that respondent doctor is a legitimate independent
contractor. That Shangri-la provides the clinic premises and medical supplies for use of its employees and
guests does not necessarily prove that respondent doctor lacks substantial capital and investment. Besides,
the maintenance of a clinic and provision of medical services to its employees is required under Art. 157, which
are not directly related to Shangri-las principal business operation of hotels and restaurants.
As to payment of wages, respondent doctor is the one who underwrites the following: salaries, SSS
contributions and other benefits of the staff[13]; group life, group personal accident insurance and life/death
insurance[14] for the staff with minimum benefit payable at 12 times the employees last drawn salary, as well
as value added taxes and withholding taxes, sourced from her P60,000.00 monthly retainer fee and 70% share
of the service charges from Shangri-las guests who avail of the clinic services. It is unlikely that respondent
doctor would report petitioners as workers, pay their SSS premium as well as their wages if they were not
indeed her employees.[15]
With respect to the supervision and control of the nurses and clinic staff, it is not disputed that a document,
Clinic Policies and Employee Manual[16] claimed to have been prepared by respondent doctor exists, to
which petitioners gave their conformity[17] and in which they acknowledged their co-terminus employment
status. It is thus presumed that said document, and not the employee manual being followed by Shangri-las
regular workers, governs how they perform their respective tasks and responsibilities.
Contrary to petitioners contention, the various office directives issued by Shangri-las officers do not imply that
it is Shangri-las management and not respondent doctor who exercises control over them or that Shangri-la
has control over how the doctor and the nurses perform their work. The letter[18] addressed to respondent
doctor dated February 7, 2003 from a certain Tata L. Reyes giving instructions regarding the replenishment of
emergency kits is, at most, administrative in nature, related as it is to safety matters; while the letter[19] dated
May 17, 2004 from Shangri-las Assistant Financial Controller, Lotlot Dagat, forbidding the clinic from receiving
cash payments from the resorts guests is a matter of financial policy in order to ensure proper sharing of the
proceeds, considering that Shangri-la and respondent doctor share in the guests payments for medical
services rendered. In fine, as Shangri-la does not control how the work should be performed by petitioners, it
is not petitioners employer.
WHEREFORE, the petition is hereby DENIED. The Decision of the Court of Appeals dated May 22, 2007 and
the Resolution dated July 10, 2007 are AFFIRMED.

SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice