STRIKE AND LOCKOUT

Constitutional Guidepost

1. Par (b) Sec. 3, Art. XIII, 1987 Consti.

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..

2. Sec. 4 Art. III 1987 Consti.

No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.

Statutory Guidepost

1. ILO Convention No. 87

2. Art. 263
- Workers shall have the right to engage in concerted activities for purposes of
collective bargaining or for their mutual benefit and protection. The right of legitimate labor
organizations to strike and picket and of employers to lockout, consistent with the national interest,
shall continue to be recognized and respected. However, no labor union may strike and no
employer may declare a lockout on grounds involving inter-union and intra-union disputes.

1. FORMS OF CONCERTED ACTIVITIES.

There are three (3) forms of concerted activities, namely:

1. Strike;

2. Lockout; and

3. Picketing

DEFINITIONS

Strike - any temporary stoppage of work by the concerted action of the employees as a result of
an industrial or labor dispute.

Lockout means the temporary refusal by an employer to furnish work as a result of an industrial
or labor dispute

Picketing is the act of workers in peacefully marching to and fro before an establishment involved
in a labor dispute generally accompanied by the carrying and display of signs, placards and
banners intended to inform the public about the dispute.
Forms and classification of strikes.

A strike may be classified:

1. As to nature:

a. Legal strike - one called for a valid purpose and conducted through means allowed by
law.

b. Illegal strike - one staged for a purpose not recognized by law or, if for a valid purpose, it
is conducted through means not sanctioned by law.

c. Economicstrike-
onedeclaredtodemandhigherwages,overtimepay,holidaypay,vacationpay,etc.Itisone which
is declared for the purpose of forcing wage or other concessions from the employer for
which he is not required by law to grant.

d. Unfair labor practice (ULP) or political strike - one called to protest against the
employers unfair labor practices enumerated in Article 248 of the Labor Code, including
gross violation of the CBA under Article 261 and union- busting under Article 263(c) of the
Labor Code.

e. Slowdownstrike-
onestagedwithouttheworkersquittingtheirworkbutbymerelyslackeningorreducingtheir normal
work output. It is also called a strike on the installment plan.

f. Mass leaves - One where the employees simultaneously filed leaves of absence based on
various reasons such as, inter alia, vacation and sick leaves.

g. Wildcat strike - one declared and staged without the majority approval of the
recognized bargaining agent.

h. Sitdown strike - one where the workers stop working but do not leave their place of work.

i. Overtime boycott one involving the act of the workers in refusing to render overtime
work in violation of the CBA, resorted to as a means to coerce the employer to yield to their
demands.
 j. Boycott of products one which involves the concerted refusal to patronize an
employer's goods or services and to persuade others to a like refusal.

k. Attempts to damage, destroy or sabotage plant equipment and facilities and similar
activities;

l. The sporting by the workers of closely cropped hair or cleanly shaven heads after
their union filed a
notice of strike as a result of a CBA deadlock is a form of illegal strike.1

2. As to coverage:

a. General strike one which covers and extends over a whole province or country. In this kind
of strike, the employees of various companies and industries cease to work in sympathy with
striking workers of another company. It is also resorted to for the purpose of putting pressure on
the government to enact certain labor- related measures such as mandated wage increases or to
cease from implementing a law which workers consider inimical to their interest. It is also mounted
for purposes of paralyzing or crippling the entire economic dispensation.

b. Particular strike one which covers a particular establishment or employer or one industry
involving one union or federation.

3. As to purpose:

a. Economic strike.

b. Unfair labor practice strike or political strike.

4. As to the nature of the strikers action:

a. Partial strike one which consists of unannounced work stoppages such as slowdowns,
walkouts or unauthorized extension of rest periods.

b. Sit-down strike.

c. Slowdownstrike.

5. As to the extent of the interest of strikers:

a. Primary strike refers to a strike conducted by the workers against their employer,
involving a labor dispute
 directly affecting them.

b. Secondary strike

c. Sympathystrike

1. WHO MAY DECLARE A STRIKE?

Only a legitimate labor organization may declare a strike.

1. REQUISITES FOR A VALID STRIKE.

a. Procedural but mandatory requisites.

In accordance with Article 263 and pertinent prevailing jurisprudence, a strike, in order to be valid
and legal, must conform to the following procedural requisites:

1. It must be based on a valid and factual ground;

2. A notice of strike must be filed with the NCMB-DOLE;

3. A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior to the taking
of the strike vote by secret balloting, informing said office of the decision to conduct a strike vote,
and the date, place, and time thereof;

4. A strike vote must be taken where a majority of the members of the union obtained by secret
ballot in a meeting called for the purpose, must approve it;

5. A strike vote report should be submitted to the NCMB-DOLE at least seven (7) days before the
intended date of the strike;

6. Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair labor
practices of the employer, or 30 days, in case of collective bargaining deadlock, should be fully
observed; and

7. The 7-day waiting period/strike ban reckoned after the submission of the strike vote report to
the NCMB-DOLE should also be fully observed in all cases.

All the foregoing requisites, although procedural in nature, are mandatory and failure of the union
to comply with any of them would render the strike illegal.

REQUISITES FOR A VALID LOCKOUT

1. SUBSTANTIALLY SIMILAR REQUISITES AS IN STRIKE.

With a slight, insignificant variation, the procedural but mandatory requisites for a valid strike
discussed above are substantially similar to those applicable for valid lockout. For purposes of
ease and clarity, the same are presented as follows:

1st requisite - It must be based on a valid and factual ground;

2nd requisite - A notice of lockout must be filed with the NCMB-DOLE;

3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-four (24)
hours prior to the taking of the lockout vote by secret balloting, informing said office of the
decision to conduct a lockout vote, and the date, place, and time thereof;

4th requisite - A lockout vote must be taken where a majority of the members of the
Board of Directors of the corporation or association or of the partners in a partnership
obtained by secret ballot in a meeting called for the purpose, must approve it;

5th requisite - A lockout vote report should be submitted to the NCMB-DOLE at least
seven (7) days before the intended date of the lockout;

6th requisite - The cooling-off period of 15 days, in case of unfair labor practices of
the labor organization, or 30 days, in case of collective bargaining deadlock, should be fully
observed; and

7th requisite - The 7-day waiting period/lockout ban reckoned after the submission of
the lockout vote report to the NCMB-DOLE should also be fully observed in all cases.

. REQUISITES FOR LAWFUL PICKETING

1. THE REQUISITES FOR A VALID STRIKE ARE NOT APPLICABLE TO
PICKETING.
The seven (7) requisites for a valid strike discussed above do not apply to picketing.
2. REQUISITES FOR LAWFUL PICKETING.
The most singular requirement to make picketing valid and legal is that it should be
peacefully conducted.
Based on the foregoing provision, the requisites may be summed up as follows:
1. The picket should be peacefully carried out;
 2. There should be no act of violence, coercion or intimidation attendant thereto;
3. The ingress to (entrance) or egress from (exit) the company premises should not be
obstructed; and 4. Public thoroughfares should not be impeded.

Liability of Union Officers

The mere finding or declaration of illegality of the strike will result in the termination of all
union officers who knowingly participated in the illegal strike. Unlike ordinary
members, it is not required, for purposes of termination, that the officers should commit an
illegal act during the strike.

Liability of Union Officers

The mere finding or declaration of illegality of a strike will not result in termination of ordinary union
members. For an ordinary union member to suffer termination, it must be shown by clear evidence
that he has committed illegal acts during the strike.

STRIKE AND LOCKOUT

Naranjo vs. 193
Biomedica 789
201
2

ILEU, FFU 142

vs. Interphil 824
Laboratorie 200
s 1

NUHWRAIN 163 The Union is guilty of committing illegal strike.

vs CA 942
and First, Unions violation of the Hotel's Grooming Standards
166 was clearly a deliberate and concerted action to undermine the
295 authority of and to embarrass the Hotel and was, therefore, not a
200
8 protected action. The appearances of the Hotel employees directly
reflect the character and well-being of the Hotel, being a
Five-star hotel
 Capiol 147 Respondent Union failed to comply with the mandatory twenty-
Medical 080 four (24) hour notice to the NCMB for the conduct of a strike vote.
Center vs 200
NLRC 5 Unless the NCMB is notified of the date, place and time of the
meeting of the union members for the conduct of a strike vote, the
NCMB would be unable to supervise the holding of the same, if
and when it decides to exercise its power of supervision.
NSFW vs 597
Ovejera 43
198
2 NFSW strike is illegall

The NFSW declared the strike six (6) days

after filing a strike notice, i.e., before the lapse of the mandatory
cooling-off period. It also failed to file with the MOLE
before launching the strike a report on the strike-vote, when it
should have filed such report "at least seven (7) days before the
intended strike."

Abaria vs. 154 Despite the validity of the purpose of a strike and compliance with
NLRC 113 the procedural requirements, a strike may still be held illegal where
201
1 the means employed are illegal falling within the prohibitions
under Art. 264(e) of the Labor Code.

Supported by actual blocking benches and obstructions, what the

union demonstrated was a very persuasive and quietly intimidating
strategy whose chief aim was to paralyze the operations of the
company, not solely by the work stoppage of the participating
workers, but by excluding the company officials and non-striking
employees from access to and exit from the company premises. No
doubt, the strike caused the company operations considerable
damage.
G.S. 160
Transport 30 an ordinary striking employee cannot be
vs. Infante 201
0 terminated for mere participation in an
illegal strike. There must be proof that he
committed illegal acts during the strike and
the striker who participated in the
commission of illegal act must be
identified. Proof beyond reasonable doubt
is not required. Substantial evidence
 available under the attendant
circumstances, which may justify the
imposition of the penalty of dismissal, may
suffice.

SECURITY OF TENURE
The guarantee of security of tenure under the Constitution means that an employee
cannot be dismissed from the service for causes other than those provided by law
and only after due process is accorded the employee.

Kinds of Employment

five (5) classifications of employment:

(a) Regular employees referring to those who have been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer;

(b) Project employees referring to those whose employment has been fixed for a specific project or
undertaking, the completion or termination of which has been determined at the time of the
engagement of the employee;

(c) Seasonal employees referring to those who work or perform services which are seasonal in
nature, and the employment is for the duration of the season;

(d) Casual employees referring to those who are not regular, project, or seasonal employees; (e)
Fixed-term employees whose term is freely and voluntarily determined by the employer and the
employee.

NOTES:

Probationary Employment

*The 6-month probationary period should be reckoned from the date of appointment up to the
same calendar date of the 6th month following.

*the employee is considered a regular employee from day one of his employment. And
even if there is one, he is deemed regular if there is no stipulation on probationary period.
Grounds for termination of a probationary employee:

1. For a just cause; or

2. For authorized cause; or

. 3. When the probationary employee fails to qualify as a regular employee in

accordance with reasonable standards made known by the employer to the employee
at the start of the employment.

. b. REGULAR EMPLOYMENT

Under the Labor Code, regular employment may be attained in either of three (3) ways,
namely: 1. By nature of work. - The employment is deemed regular when the
employee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer. 2. Byperiodofservice.-
Theemploymentisreckonedasregularwhentheemployeehasrenderedatleastone(1) year
of service, whether such service is continuous or broken, with respect to the activity in
which he is employed and his employment shall continue while such activity exists.
3. By probationary employment. - The employment is considered regular when
the employee is allowed to work after a probationary period.

. PROJECT EMPLOYMENT

The litmus test of project employment, as distinguished from regular employment, is whether or not
the project employees were assigned to carry out a specific project or undertaking, the
duration and scope of which were specified at the time the employees were engaged
for that project. A true project employee should be assigned to a project which begins and
ends at determined or determinable times and be informed thereof at the time of hiring.

Indicators of project employment

Either one or more of the following circumstances, among others, may be considered as indicator/s
that an employee

is a project employee:

1. The duration of the specific/identified undertaking for which the worker is engaged is
reasonably determinable.

2.
 Suchduration,aswellasthespecificwork/servicetobeperformed,aredefinedinanemployme
ntagreementand is made clear to the employee at the time of hiring.

3. The work/service performed by the employee is in connection with the particular project
or undertaking for which he is engaged.

4. The employee, while not employed and awaiting engagement, is free to offer his
services to any other employer.

5.
Areportoftheterminationofemploymentintheparticularproject/undertakingissubmittedtot
heDOLERegional Office having jurisdiction over the workplace, within thirty (30) days
following the date of his separation from work.

6.
Anundertakingintheemploymentcontractbytheemployertopaycompletionbonustothepr
ojectemployeeas practiced by most construction companies.

. SEASONAL EMPLOYMENT

whena seasonal employee can become a regular seasonal employee? Yes, provided the
following requisites are complied with:

1. The seasonal employee should perform work or services that are seasonal in nature;
and

2. They must have also been employed for more than one (1) season.

. CASUAL EMPLOYMENT

The most important distinction is that the work or job for which he was hired is merely
incidental to the principal business of the employer and such work or job is for a definite
period made known to the employee at the time of engagement. When does a casual
employee become regular? Casual employee becomes regular after one year of service
by operation of law. The one (1) year period should be reckoned from the hiring date.
Repeated rehiring of a casual employee makes him a regular employee.

What are the requisites in order for fixed-term employment to be valid?

The two (2) requisites or criteria for the validity of a fixed-term contract of employment are as follows:

1. The fixed period of employment was knowingly and voluntarily agreed upon by the
 parties, without any force, duress or improper pressure being brought to bear upon the
employee and absent any other circumstances vitiating his consent; or

2.
Itsatisfactorilyappearsthattheemployerandemployeedealtwitheachotheronmoreorlesse
qualtermswith no moral dominance whatever being exercised by the former on the
latter.

*INSERT CASES*

PROJECT EMPLOYEES
GMA 176 ..private respondents had rendered more than one
Network vs. 419
Fabriga et (1) year of service at the time of their dismissal which
al overturns petitioners allegations that private
respondents were hired for a specific or fixed
undertaking for a limited period of time..

Quebral vs. 221 employers claiming that their workers are project-based
Angbus 897 employees have the burden to prove that these two requisites
Constructio concur: (a) the employees were assigned to carry out a specific
n
project or undertaking; and (b) the duration and scope of which
were specified at the time they were engaged for such project. 37

When no other evidence is offered, the absence of employment

contracts raises a serious question of whether the employees
were sufficiently apprised at the start of their employment of their
status as project employees. Absent such proof, it is presumed
39

that they are regular employees, thus, can only be dismissed for
just or authorized causes upon compliance with procedural due
process.40

Felipe et. 218 length of service or the re-hiring of construction workers

al. vs. 009 on a project-to-project basis does not confer upon them
DDTKI regular employment status, since their, re-hiring is only a
natural consequence of the fact that experienced construction
workers are preferred. Employees who are hired for carrying out
a separate job, distinct from the other undertakings of the
 company, the scope and duration of which has been determined
and made known to the employees at the time of the
employment, are properly treated as project employees and their
services may be lawfully terminated upon the completion of a
project.

Gadia vs. 209 petitioners were indeed project-based employees,

Sykes Asia 499
considering that: (a) they were hired to carry out a
specific undertaking, i.e., the Alltel Project; and (b) the
duration and scope of such project were made known
to them at the time of their engagement, i.e., "co-
terminus with the project."

"The law and jurisprudence dictate that the duration

of the undertaking begins and ends at determined or
determinable times" while clarifying that "[t]he phrase
determinable times simply means capable of being
determined or fixed.

SEASONAL EMPLOYEES
Universal 1864 To exclude the asserted "seasonal" employee from
39
Robina those classified as regular employees, the employer
Sugar must show that: (1) the employee must be performing
Milling Corp work or services that are seasonal in nature; and (2)
vs. Acibo he had been employed for the duration of the
et. al. season. Hence, when the "seasonal" workers are
26

continuously and repeatedly hired to perform the

same tasks or activities for several seasons or even
after the cessation of the season, this length of time
may likewise serve as badge of regular employment. 27

In fact, even though denominated as "seasonal

workers," if these workers are called to work from
time to time and are only temporarily laid off during
the off-season, the law does not consider them
separated from the service during the off-season
period. The law simply considers these seasonal
workers on leave until re-employed. 28
 Paz vs. 1995 while it may appear that the work of petitioners is
Northern 54 seasonal, inasmuch as petitioners have served the
Tobacco company for many years, some for over 20 years,
Redrying
performing services necessary and indispensable to
Inc.
LUTORCOs business, serve as badges of regular
employment. Moreover, the fact that petitioners do not
work continuously for one whole year but only for the
duration of the tobacco season does not detract from
considering them in regular employment since in a litany of
cases this Court has already settled that seasonal workers who
are called to work from time to time and are temporarily laid off
during off-season are not separated from service in said period,
but are merely considered on leave until re-employed.

CASUAL EMPLOYEES
Kay 1624
Products vs. 72 While the actual regularization of these employees
Austria entails the mechanical act of issuing regular appointment papers
Martinez and compliance with such other operating procedures as may be
adopted by the employer, it is more in keeping with the intent
and spirit of the law to rule that the status of regular employment
attaches to the casual worker on the day immediately after the
end of his first year of service. To rule otherwise, and to instead
make their regularization dependent on the happening of some
contingency or the fulfillment of certain requirements, is to
impose a burden on the employee which is not sanctioned by
law.[23]

FIXED TERM EMPLOYEES

Samonte vs. 193
La Salle 350
Greenhills
(1) The repeated renewal of petitioners' contract for fifteen
years, interrupted only by the close of the school year; (2) the
necessity of the work performed by petitioners as school
physicians and dentists; and (3) the existence of LSGI's power of
control over the means and method pursued by petitioners in the
performance of their job, we rule that petitioners attained regular
employment, entitled to security of tenure who could only be
dismissed for just and authorized causes. Consequently,
 petitioners were illegally dismissed and are entitled to the twin
remedies of payment of separation pay and full back wages. We
order separation pay in lieu of reinstatement given the time that
has lapsed, twelve years, in the litigation of this case.

Convoy 199 That Albia has become a regular employee is evident from the
Marketing 683 Delivery Agency Agreements (For Driver) - executed for the
19

Inc. vs. Albia periods of November 22, 2002 to April 22, 2003, May 29, 2003
to October 29, 2003, November 11, 2003 to April 10, 2004, and
April 13, 2004 to September 13, 2004 - which indicate that he
had rendered at least one year of broken service with respect to
the same activity in which he was employed from the time he was
hired as a driver on November 22, 2002 until he was terminated
on July 23, 2004.

Purefoods 194 In the instant case, the private respondents activities

Corp vs. 969 consisted in the receiving, skinning, loining, packing, and
NLRC
casing-up of tuna fish which were then exported by the
petitioner. Indisputably, they were performing activities which
were necessary and desirable in petitioners business or trade.
The five-month period specified in private respondents
employment contracts having been imposed precisely to
circumvent the constitutional guarantee on security of tenure
should, therefore, be struck down or disregarded as contrary
to public policy or morals. To uphold the contractual
[12]

arrangement between the petitioner and the private

respondents would, in effect, permit the former to avoid hiring
permanent or regular employees by simply hiring them on a
temporary or casual basis, thereby violating the employees
security of tenure in their jobs.
[13]

ABS-CBN 184 If the employee has been performing the job for at
977
least one year, even if the performance is not
continuous or merely intermittent, the law deems the
repeated or continuing performance as sufficient
evidence of the necessity, if not indispensability of
that activity in the business. Indeed, an employment
29

stops being co-terminous with specific projects where

the employee is continuously re-hired due to the
demands of the employers business. When 30

circumstances show, moreover, that contractually

stipulated periods of employment have been imposed
to preclude the acquisition of tenurial security by the
employee, this Court has not hesitated in striking
down such arrangements as contrary to public policy,
 morals, good customs or public order. The nature of
31

the employment depends, after all, on the nature of

the activities to be performed by the employee,
considering the nature of the employers business,
the duration and scope to be done, and, in some
cases, even the length of time of the performance and
its continued existence. In the same manner that the
32

practice of having fixed-term contracts in the industry

does not automatically make all talent contracts valid
and compliant with labor law, it has, consequently,
been ruled that the assertion that a talent contract
exists does not necessarily prevent a regular
employment status. 33

PROBATIONARY
PHILIPPINE 183 if the clause in the appointment letter did cause an
NATIONAL OIL
COMPANY-ENERGY 200-
DEVELOPMENT 01 ambiguity in the employment status of Buenviaje, we
CORPORATION vs.
BUENVIAJE hold that the ambiguity should be resolved in her
183
253
favor. This is in line with the policy under our Labor
183 Code to afford protection to labor and to construe
257 doubts in favor of labor.

Abbott vs. 192 it is not the probationary employees job description

Alcaraz 571
but the adequate performance of his duties and
responsibilities which constitutes the inherent and
implied standard for regularization. To echo the
fundamental point of the Decision, if the probationary
employee had been fully apprised by his employer of
these duties and responsibilities, then basic
knowledge and common sense dictate that he must
adequately perform the same, else he fails to pass
the probationary trial and may therefore be subject to
termination.8

While at the time of engagement, reason dictates that

the employer can only inform the probationary
managerial employee of his duties and
responsibilities as such and provide the allowable
parameters for the same. Verily, the adequate
 performance of such duties and responsibilities is, by
and of itself, an implied standard of regularization.
UNIVAC 182 It is primordial that at the start of the probationary
DEVELOP 072
MENT, INC. period, the standards for regularization be made
Vs. known to the probationary employee. In this case, as
31

Soriano held by the CA, petitioner failed to present adequate

evidence to substantiate its claim that respondent
was apprised of said standards. It is evident from the
LA and NLRC decisions that they merely relied on
surmises and presumptions in concluding that
respondent should have known the standards
considering his educational background as a law
graduate. Equally important is the requirement that in
order to invoke "failure to meet the probationary
standards" as a justification for dismissal, the
employer must show how these standards have been
applied to the subject employee. In this case, aside
from its bare allegation, it was not shown that a
performance evaluation was conducted to prove that
his performance was indeed unsatisfactory.

CONTRACTUAL
Petron vs 1822 From the foregoing, it is clear that Petron failed to
Caberte 55
discharge its burden of proving that ABC is not a
labor-only contractor. Consequently, and as
warranted by the facts, the Court declares ABC as a
mere labor-only contractor. "A finding that a
contractor is a labor-only contractor is equivalent to
declaring that there is an employer-employee
relationship between the principal and the employees
of the supposed contractor, and the labor-only
contractor is considered as a mere agent of the
principal, the real employer." Accordingly in this
52

case, Petron is declared to be the true employer of

respondents who are considered regular employees
in view of the fact that they have been regularly
performing activities which are necessary and
desirable to the usual business of Petron for a
number of years.
 . DISMISSAL FROM EMPLOYMENT

What is meant by two-fold due process requirement? Dismissal of employees

requires the observance of the two-fold due process requisites, namely:

1.
Substantiveaspectwhichmeansthatthedismissalmustbeforanyofthe(1)justcaus
esprovidedunderArticle 282 of the Labor Code or the company rules and regulations
promulgated by the employer; or (2) authorized causes under Articles 283 and 284
thereof; and

2. Procedural aspect which means that the employee must be accorded due process,
the elements of which are notice and the opportunity to be heard and to defend
himself.

What is the distinction between JUST CAUSES and AUTHORIZED CAUSES?

A dismissal based on a just cause means that the employee has committed a wrongful act
or omission; while a dismissal based on an authorized cause means that there exists a
ground which the law itself allows or authorizes to be invoked to justify the termination of an
employee even if he has not committed any wrongful act or omission such as installation of
labor-saving devices, redundancy, retrenchment, closure or cessation of business operations
or disease. 1. JUST CAUSES

What are the just causes under the Labor Code? The just causes in the Labor Code are
found in the following provisions thereof: (1) Article 282 - (Termination by the Employer) which
provides for the following grounds:

. (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work;

. (b) Gross and habitual neglect by the employee of his duties;

. (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;

. (d) Commission of a crime or offense by the employee against the person of his employer or
any immediate member of his family or his duly authorized representatives; and

. (e) Other causes analogous to the foregoing.

The following may be cited as just causes in accordance with prevailing jurisprudence:

1. Violation of Company Rules and Regulations or Company Code of Discipline.

2. Theft of property owned by a co-employee as distinguished from company-owned

property which is considered serious misconduct.

3. Incompetence, inefficiency or ineptitude. 4. Failure to attain work quota.

5. Failure to comply with weight standards of employer.

6. Attitudeproblem.

ERIOUS MISCONDUCT

1. REQUISITES.

For misconduct or improper behavior to be a just cause for dismissal, the following requisites must
concur:

1. It must be serious; and

2. It must relate to the performance of the employees duties; and

3. It must show that he has become unfit to continue working for the employer.

All the above three (3) requisites must concur.

SERIOUS MISCONDUCT

1. REQUISITES.

For misconduct or improper behavior to be a just cause for dismissal, the following requisites must
concur:

1. It must be serious; and

2. It must relate to the performance of the employees duties; and

3. It must show that he has become unfit to continue working for the employer.

All the above three (3) requisites must concur.

GROSS AND HABITUAL NEGLECT OF DUTIES

1. REQUISITES. The following are the requisites: (1) There must be negligence which is
gross and/or habitual in character; and (2) It must be work-related as would make him unfit to
work for his employer.

. ABANDONMENT OF WORK 1. CONCEPT. Abandonment is a form of neglect

of duty; hence, a just cause for termination of employment under Article 282 [b] of the Labor
Code. 2. REQUISITES. To constitute abandonment, two (2) elements must concur,
namely:

. 1. The employee must have failed to report for work or must have been absent without valid or
justifiable reason; and 2.
Theremusthavebeenaclearintentiononthepartoftheemployeetosevertheemployer-
employeerelationship manifested by some overt act.

FRAUD

1. REQUISITES.

The following are the requisites of this ground:

1. There must be an act, omission, or concealment; 2. The act, omission or concealment involves a
breach of legal duty, trust, or confidence justly reposed; 3. It must be committed against the employer
or his/her representative; and 4. It must be in connection with the employees' work.1

. WILLFUL BREACH OF TRUST AND CONFIDENCE

1. REQUISITES. For the doctrine of loss of trust and confidence to apply, the
following requisites must be satisfied:

. (1) The employee holds a position of trust and confidence;

. (2) There exists an act justifying the loss of trust and confidence, which means
that the act that betrays the employers trust must be real, i.e., founded on
clearly established facts;

. (3) The employees breach of the trust must be willful, i.e., it was done
 intentionally, knowingly and purposely, without justifiable excuse; and

. (4) The act must be in relation to his work which would render him unfit to
perform it.

. COMMISSION OF CRIME OR OFFENSE

1. REQUISITES. The following are the requisites for the valid invocation of this
ground:

1. A crime or offense was committed by the employee;

2. It was committed against any of the following persons:

. (a) His employer;

. (b) Any immediate member of his employers family; or

. (c) His employers duly authorized representative.

2. SOME PRINCIPLES ON THE COMMISSION OF CRIME OR OFFENSE.

. OTHER ANALOGOUS CAUSES

1. ANALOGOUS CAUSES UNDER ESTABLISHED JURISPRUDENCE.

The following may be cited as analogous causes:

. 1) Violation of company rules and regulations.

. 2) Theft of property owned by a co-employee, as distinguished from theft of property owned

by the employer.

. 3) Incompetence, inefficiency or ineptitude.

. 4) Failure to attain work quota.

. 5) Failure to comply with weight standards of employer.

. 6) Attitude problem is analogous to loss of trust and confidence.

 . AUTHORIZED CAUSES What are the 2 classes of authorized cause
termination? Under the Labor Code, authorized causes are classified into two (2) classes,
namely:

. (1) Business-related causes. Referring to the grounds specifically mentioned in

Article 283, to wit:

a. Installationoflabor-savingdevice;

b. Redundancy;

c. Retrenchment;

d. Closure or cessation of business operations NOT due to serious business

losses or financial reverses; and

e. Closure or cessation of business operations due to serious business losses

and financial reverses.

. (2) Health-related causes. Referring to disease covered by Article 284 of the

Labor Code.

INSTALLATION OF LABOR-SAVING DEVICE

What are the additional requisites unique to this ground?

In addition to the five (5) common requisites above, the unique requisites are as follows: 1. There
must be introduction of machinery, equipment or other devices; and

2. The purpose for such introduction must be valid such as to save on cost, enhance efficiency and
other justifiable economic reasons.1

II. REDUNDANCY

What are the additional requisites unique to this ground? The additional requisites are as
follows:

1. There must be superfluous positions or services of employees;

2. The positions or services are in excess of what is reasonably demanded by the actual
requirements of the enterprise to operate in an economical and efficient manner; and

3. There must be an adequate proof of redundancy such as but not limited to the new staffing pattern,
feasibility studies/proposal, on the viability of the newly created positions, job description and the
 2
approval by the management of the restructuring.

III. RETRENCHMENT

What are the additional requisites unique to this ground?

Per latest issuance of the DOLE, 3 the following are the additional requisites:

1. The retrenchment must be reasonably necessary and likely to prevent business losses;

2. The losses, if already incurred, are not merely de minimis, but substantial, serious, actual and
real, or if only expected, are reasonably imminent;

3. The expected or actual losses must be proved by sufficient and convincing evidence; 4 and

4. The retrenchment must be in good faith for the advancement of its interest and not to defeat or
circumvent the employees' right to security of tenure.

This is the only statutory ground in Article 283 which requires this kind of proof. The other grounds of
closure or cessation of business operations may be resorted to with or without losses.

CLOSURE OR CESSATION OF BUSINESS OPERATIONS

Can an employer close its business even if it is not suffering from business losses?

Yes. In fact, closure involves two (2) situations: (a) When NOT due to serious business losses or
financial reverses; or (b) When due to serious business losses or financial reverses It is only in the
first that payment of separation pay is required. No such requirement is imposed in the second.

DISEASE

1. THE DEOFERIO DOCTRINE ON THE REQUISITES.

Disease is one of the authorized causes to terminate employment. In the 2014 case of Deoferio v.
Intel Technology Philippines, Inc.,1 the Supreme Court divided into two the requisites that must be
complied with before termination of employment due to disease may be justified, namely:

(1) Substantive requisites; and

(2) Procedural requisites. 1.1. THE DEOFERIO RULE ON SUBSTANTIVE

REQUISITES.

The following are the three (3) substantive requisites:

. (1) An employee has been found to be suffering from any disease;

 . (2) His continued employment is prohibited by law or prejudicial to his health, as well as to the
health of his co- employees; and

. (3) A competent public health authority issues a medical certificate that the disease is of such
nature or at such a stage that it cannot be cured within a period of six (6) months even with
proper medical treatment.2

1.2. THE DEOFERIO RULE ON PROCEDURAL REQUISITES.

Deoferio, finally pronounced the rule that the employer must furnish the employee two (2) written
notices in

terminations due to disease, namely:

. (1) The notice to apprise the employee of the ground for which his dismissal is sought; and

. (2) The notice informing the employee of his dismissal, to be issued after the employee has
been given reasonable opportunity to answer and to be heard on his defense.

Due process in termination due to disease is similar to due process for just cause
termination but different from authorized cause termination under Article 298 [283].

. DUE PROCESS (a) Twin-Notice Requirement (b) Hearing;

Meaning of Opportunity to be Heard

. What is the latest rule on due process? Due process means compliance with both
STATUTORY due process and CONTRACTUAL due process.
CONSTITUTIONAL due process is not applicable (Per Agabon
doctrine). Statutory due process refers to the one prescribed in the Labor Code (Article
277[b]); while contractual due process refers to the one prescribed in the Company Rules
and Regulations (Per Abbott Laboratories doctrine). Contractual due process was
enunciated in the 2013 en banc ruling in Abbott Laboratories, Philippines v. Pearlie Ann
F. Alcaraz.1 Thus, it is now required that in addition to compliance with the statutory due
process, the employer should still comply with the due process procedure prescribed in its
own company rules. The employers failure to observe its own company-prescribed due
process will make it liable to pay an indemnity in the form of nominal damages, the amount of
which is equivalent to the P30,000.00 awarded under the Agabon doctrine.

Are the twin-notice requirement and hearing required in all cases of

termination? No. The two-notice requirement and hearing are required only in case
of just cause termination in the following order: 1. Service of first written notice; 2.
Conduct of hearing; and 3. Service of second written notice.