LABOR AND SOCIAL LEGISLATION namely: (1) Oscar did not willfully disobey the memorandum with

a perverse attitude; and (2) the directive to make a feasibility

study did not pertain to his duties. Hence, the termination from
employment of Oscar Pimentel is not lawful.
1. The Labor Code treats differently in various aspects the
employment of (i) managerial employees, (ii) 3. Define wage distortion. How should a wage distortion
supervisory employees, and (iii) rank-and-file be resolved (1) in case there is a collective bargaining
employees. State the basic distinguishing features of agreement, (2) in case there is none. Explain briefly.
each type of employment..
Answers
Answer
Under Book Three of the Labor Code, a managerial
employee refers to one whose primary duty consists of the
management of the establishment in which he is employed or of 4. Describe a “closed shop agreement.” Does it differ from
a department or subdivision thereof, and to other officers or an “agency shop agreement”? Are these agreements
members of the managerial staff. A supervisor and a rank and legal?
file employee can be considered as members of the managerial
staff, and therefore, a managerial employee if their primary duty
consists of work directly related to management policies; if they
5. “X” is a bona fide service contractor providing
customarily and regularly exercise discretion and independent
manpower services to various companies, possessing
judgment; regularly and directly assist a proprietor or a
the necessary capital and equipment needed to
managerial employee whose primary duty consists of the
effectively carry out its commitments. “Y” is an
management of the establishment in which they are employed or
employee of “X” and assigned to work as a janitor in
a subdivision thereof; or execute under general supervision work
Company “Z”. In the course of Y's assignment, Z's
along specialized or technical lines requiring special training,
supervisors and employees would give verbal
experience, or knowledge; or execute under general supervision
instructions to Y as to how and where to perform his
special assignments and tasks; who do not devote more than 20
work. X pays Y salary. Subsequently, Y's services were
percent of their hours worked in a work-week to activities which
terminated by X. Y sued Z for illegal dismissal. May Y's
are not directly and closely related to the performance of the
case against Z prosper. Why?
work described above. All others are rank and file employees
under said Book (Art. 82, Labor Code, Sec. 2(c), Rule I, Bk III,
Omnibus Rules Implementing the Labor Code).
6. What is the rationale for the State regulation of strike
Under Book Five of the Labor Code, “Managerial activity and what are the interests involved that the
employee: is one who is vested with powers or prerogatives to State must balance and reconcile? Cite two examples
lay down,, and execute management policies and/or to hire, on how the law regulates the use of the strike as a form
transfer, suspend, lay-off, recall, discharge, assign or discipline of concerted activity.
employees. A supervisory employee is one who, in the interest of
the employer, effectively recommends such managerial actions if
the exercise of such authority is not merely routinary or clerical 7. Distinguish between “certification election”, “consent
in nature but requires the use of independent judgment. All election”, and “run-off election”.
employees not falling within any of the above definitions are
considered rank-and-file employees for purposes of this Book (Art
212 (M),, Labor Code).
8. Define “unfair labor practice.” Give 3 examples of unfair
On the matter of right of self-organization, a managerial labor practices on the part of the employer and 3
employee cannot exercise such right; while a supervisor and a examples of unfair labor practices on the part of the
rank and file employee can (Arts. 245, 243, Labor Code). labor union.
2. Oscar Pimentel was an agent supervisor, rising from the
ranks, in a corporation engaged in real estate. In order
to promote the business, the company issued a 9. What is the jurisdiction of the NLRC? The Secretary of
memorandum to all agent supervisors requiring them to Labor?
submit a feasibility study within their respective areas
of operation. All agent supervisors complied except
Oscar. Reminded by the company to comply with the
memorandum, Oscar explained that being a drop-out in
school and uneducated, he would be unable to submit 10. A personnel manager, while interviewing an attractive
the required study. The company found the explanation female applicant for employment, stared directly at her
unacceptable and terminated his employment. for prolonged periods, albeit in a friendly manner. After
Aggrieved, Oscar filed a complaint for illegal dismissal the interview, the manager accompanied the applicant
against the company. Decide the case. to the door, shook her hand and patted her on the
shoulder. He also asked the applicant if he could invite
Answers her for dinner and dancing at some future time. Did the
personnel manager, by the above acts, commit sexual
For failure to comply with the memorandum to submit a harassment? Reason.
feasibility study on his area of operation, Oscar can not be
terminated (presumably for insubordination or willful
disobedience) because the same envisages the concurrence of at
least two requisites: (1) the employee’s assailed conduct must 11. XYZ Employees Association filed a complaint against
have been willful or intentional, the willfulness being ABC Bank for wrongful diminution of benefits It alleged
characterized by a wrongful and perverse attitude; and (2) the that the bank had been providing for a mid-year bonus
order violated must have been reasonable, or lawful, made equivalent to one-month basic pay and a Christmas
known to the employee and must pertain to the duties which he bonus equivalent to one-month basic pay since 1971.
had been engaged to discharge. Upon the effectivity of Presidential Decree (PD) 851 in
1975 which granted the 13th month pay, the bank
In the case at bar, at least two requisites are absent,
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 started giving its employees a one-month basic pay as
mid-year bonus, one-month basic pay as Christmas
bonus, and one-month basic pay as 13th month pay. In
1980, the bank was placed under conservatorship and
by virtue of a monetary board resolution of the Central
Bank, the bank only gave one month basic pay
mandated by PD 851, and it no longer gave its
employees the traditional mid-year and Christmas
bonuses. Could ABC Bank be compelled, given the
circumstances, to continue paying its employees the
traditional mid-year and Christmas bonuses in addition
to the 13th month pay?
Answer:
No. The grant of a bonus is a prerogative, not an
obligation, of the employer. (Traders Royal Bank v. NLRC) The
mater of giving a bonus over and above that which is required by
law is entirely dependent on the financial capacity of the
employer to give it. (Businessday v. NLRC)
Hence, given the circumstances, ABC Bank cannot be
compelled to continue paying its employees the traditional mid-
year and Christams bonuses in addition to the 13th month pay.
12. Who are the dependents of an SSS Member?
Answer:
Sec. 8(e) of RA 8282, enumerate the following as the
dependents of an SSS member:
(1) The legal spouse entitled by law to receive support
from the member;
(2) The legitimate, legitimated or legally adopted, and
illegitimate child who is unmarried, not gainfully employed, and
has not reached twenty-one (21) years of age, or if over twenty-
one (21) years of age, he is congenitally or while still a minor has
been permanently incapacitated and incapable of self-support,
physically or mentally; and
(3) The parent who is receiving regular support from the
member.
13. What is the provision on members hip in the GSIS?
Answer:
"SEC. 3. Compulsory Membership. - Membership in the GSIS shall
be compulsory for all employees receiving compensation who
have not reached the compulsory retirement age, irrespective of
employment status, except members of the Armed Forces of the
Philippines and the Philippine National Police, subject to the
condition that they must settle first their financial obligation with
the GSIS, and contractuals who have no employer and employee
relationship with the agencies they serve.
"Except for the members of the judiciary and constitutional
commissions who shall have life insurance only, all members of
the GSIS shall have life insurance, retirement, and all other social
security protections such as disability, survivorship, separation,
and unemployment benefits (RA 8291)
14. Pertinent provisions of the Anti-Sexual Harassment Act
of 1995 (RA 7877):
Committed in these situations only:
Work-related or employment environment
Education or training environment
Offender
ER, EE, manager, supervisor, agent of the ER, teacher, instructor
professor, coach, trainor, or any other person who has authority,
influence, or moral ascendancy over another (hence, victim may
be male or female)
Winlaw 2010 Tips
Question:
Pedrito Masculado, a college graduate from the province, tried
his luck in the city and landed a job as utility/maintenance man
at the warehouse of a big shopping mall. After working as a
casual EE for six months, he signed a contract for probationary
employment for six months. Being well-built and physically
attractive, his supervisor, Mr. Hercules Barak, took special
interest to befriend him. When his probationary period was
about to expire, he was surprised when one afternoon after
working hours, Mr. Barak followed him to the men’s comfort
room. After seeing that no one else was around, Mr. Barak
placed his arm over Pedrito’s shoulder and softly said: “You have
a great potential to become regular EE and I think I can give you
a favorable recommendation. Can you come over to may condo
unit on Saturday evening so we can have a little drink? I’m alone
and I’m sure you want to stay longer with the company.”
Is Mr. Barak liable for sexual harassment committed in a work-
related or employment environment?
Suggested Answer: Yes, the elements of sexual harassment
are all present. The act of Mr. Barak was committed in a
workplace. Mr. Barak, as supervisor of Pedrito Masculado, has
authority, influence and moral ascendancy over Masculado.
Given the specific circumstances mentioned in the question like
Mr. Barak following Masculado to the comfort room, etc. Mr.
Barak was requesting a sexual favor from Masculado for a
favorable recommendation regarding the latter’s employment. It
is not impossible for a male, who is a homosexual, to ask for a
sexual favor from another male.
How Committed
Offender 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
Question:
As a condition for her employment, Josephine signed an
agreement with her ER that she will not get married, otherwise,
she will be considered resigned or separated from the service.
Josephine got married. She asked Owen, the personnel manager,
if the company can reconsider the agreement. He told Josephine
he can do something about it, insinuating some sexual favors.
She complained to higher authorities but to no avail. She hires
you as her counsel. What action or actions will you take? Explain.
Suggested answer: As counsel for Josephine, I will file a
complaint for work-related sexual harassment which, as in the
case at bar, occurs when a person who has authority, influence
or moral ascendancy over another demands, requests, or
otherwise requires any sexual favor from the latter as a
condition for, inter alia, the continued employment of said
individual. (Sec 3, RA 7877)
I will likewise file a complaint for illegal dismissal citing Art 136,
LC which provides that it is unlawful for an employer to require
as a condition of continued 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 or discriminate or otherwise prejudice a
woman employee merely by reason of her marriage. (2006 Bar
Question)
Question:
A Personnel Manager, while interviewing an attractive female
applicant for employment, stared directly at her for prolonged
periods, albeit in a friendly manner. After the interview, the
manager accompanied the applicant to the door, shook her hand
and patted her on the shoulder. He also asked the applicant if he
could invite her for dinner and dancing at some future time. Did
2
the personnel manager, by the above acts, commit sexual (b) If the decision, order or award was secured through
harassment? Reason. fraud or coercion, including graft and corruption;

Suggested answer: Yes, because the personnel manager, a
man, is in a position to grant or not to grant a favor (a job) to the
applicant. Under the circumstances, inviting the applicant for
dinner or dancing creates a situation hostile or unfriendly to the
applicant’s chances for a job if she turns down the invitation.
(Sec 3(a)(3), RA 7877, Anti-Sexual Harassment Act)
Question:
In the course of an interview, another female applicant inquired
from the same personnel manager if she had the physical
attributes required for the position applied for. The personnel
manager replied: “You will be more attractive if you will wear
micro-mini dresses without the undergarments that ladies
normally wear.” Did the personnel manager, by the above reply,
commit an act of sexual harassment? Reason.
Suggested answer: No, the personnel manager’s reply to the
applicant’s question whether she qualifies for the position she is
applying for does not constitute sexual harassment. The
personnel manager did not ask for or insinuate a request for a
sexual favor in return for a favorable action on her application
for a job. But the manager’s statement may be offensive if attire
or physical look is not a criterion fro the job being applied for.
Duty/Liability of ER or Head of Office
Duty: to prevent or deter the commission of acts of sexual
harassment and to provide for the resolution, settlement or
prosecution of acts of sexual harassment
Liability: solidarily liable for damages arising from the acts of
sexual harassment if s/he is informed of such acts by the
offended party and no immediate action is taken thereon.
(c) If made purely on questions of law; and
(d) If serious errors in the findings of facts
are raised which would cause grave or irreparable damage or
injury to the appellant.
16. Reinstatement immediately executory; employer’s
options
Answer
It should be recalled that under Art. 223, third
paragraph, the decision of the Labor Arbiter reinstating a
dismissed employee is immediately executor even while the case
is on appeal. The reinstatement may be actual or merely in
payroll, at the employer’s option.
This provision – an amendment made by RA 6715 –
means that if execution pending appeal is granted, the employee
concerned shall be admitted back to work under the terms and
conditions prevailing prior to his dismissal or separation.
However, instead of doing so, the employer is granted the option
to merely reinstate the employee in the payroll. This would
simply mean that although not admitted back to work, the
employee would nevertheless be included in the payroll and
entitled to receive her salary and other benefits as if he she were
in fact working (Maranao Hotel v. NLRC).

Independent Action for Damages

the victim is not precluded from instituting a separate and
independent action for damages and other affirmative relief
Commission of sexual harassment is a valid reason to dismiss an
EE (Villarama v. NLRC, 1994).
Certain acts, like caressing the nape of the secretary, amount to
sexual harassment “as generally understood by the public”
which justifies the dismissal of the harasser (Libres v.
NLRC, 1999).

Question:
Carissa filed a complaint for sexual harassment against Mr.
Winkle with the DOLE. In his counter-affidavit… he also alleged
that the complaint was premature because Carissa failed to refer
the matter to the Committee on Decorum and Discipline for
investigation and resolution before the case against him was
filed. In her reply affidavit, Carissa claimed that there was no
need for a prior referral to the Committee on Decorum and
Discipline of her complaint.

Resolve the case with reason.

Suggested Answer: Carissa is correct in stating that there was

no need for a prior referral of her complaint to the Committee on
Decorum and Discipline because nothing in the law shall
preclude the victim of sexual harassment from instituting a
separate and independent action for damages and other
affirmative relief. (Sec. 6, RA 7877) (2005 Bar Question)

15. What are the grounds for an appeal of the decisions,

awards, or orders of the Labor Arbiter? (Art 223, Labor
Code)
Answer:
(a) If there is prima facie evidence of abuse of discretion
on the part of the Labor Arbiter;

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