LABOR LAW II – Atty.
Charisma Nolasco
SECURITY OF TENURE
 A regular employee is entitled to security of tenure and
may only be terminated based on either just or
authorized causes.
RELIEFS IN CASE OF ILLEGAL DISMISSAL {RFO}
1. Reinstatement without loss of seniority, rights and other
privileges;
2. Full backwages;
3. Other benefits or their equivalent monetary benefits.
REINSTATEMENT
 Immediately executory. Employer has to either RE-ADMIT
them under the same terms and conditions prevailing
prior to their dismissal, or to REINSTATE THEM IN THE
PAYROLL
BACKWAGES
 From the time compensation is withheld up to actual
reinstatement.
 Backwages should not be diminished or reduced by the
earnings derived by him elsewhere during the period of
his illegal dismissal.
WHAT ARE THE DIFFERENT CLASSIFICATIONS OF EMPLOYEES
{CaReSPro2}
1. Regular Employees
 Those employees who perform work that is usually
necessary and desirable to the business of the employer.
2. Project
 The employment is fixed for a specific period or
undertaking; the fixed period should be determined at
the time of the employees’ engagement;
 Instance that a project employee would become a
regular employee from day 1: if the specific period or
undertaking was not communicated to them.
3. Seasonal
 The work or service to be performed is seasonal in nature
4. Probationary
 Under the Labor Code, the probationary period shall not
exceed 6 months. Are probational employee- regular
employee? Yes, because their work is necessary and
desirable to the business. Take note that the reasonable
standards set shall also be made known to the
 Instance that a probationary employee would become
a regular employee from day 1: when the probationary
period was not communicated and/or criteria for
evaluation was not made known to the employee at the
time of the engagement.
 Probationary employment will not refer to the period but
rather the purpose for hiring the employee. Probationary
employees are actually regular employees, only that the
employer would want to be assured that his employee
would be performing at par with his reasonable
standards. The employer wants to test first if he is fir for
the job. Probationary employee may be terminated.
5. Casual
 Neither regular nor seasonal employees. They do not
perform work or services necessary or desirable to the
trade/business of the employer.
Note:
An employee can be considered as regular in the following
instances:
1. Those employees who perform work that is usually necessary
and desirable to the business of the employer.
2. Project employees whose duration or scope was not made
known to him at the time of his hiring. Thus, making him a
regular employee from the very day he started working.
3. Probationary employee who would be allowed to work
beyond the probationary period and those whose
performance standards were not made known to them at
the time of his/her engagement. Thus, the employee will
then be considered a regular employee from the first day he
started working.
4. A casual employee who is hired for more than one year.
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LABOR LAW II – Atty. Charisma Nolasco
TERMINATION BY EMPLOYEE {SICO}
1. Serious Misconduct;
2. Insult or Unbearable Treatment;
3. Commission of a Crime;
4. Other analogous causes.
Notes:
 If there is a cause in terminating, the 30 day notice is not
required.
 If there is no valid cause for the employee to sever the
employer-employee relationship, that is a case of
resignation.
 A resignation must be accepted by the employer. Such
that, if the resignation is later on accepted by the
employer, the employee cannot unilaterally withdraw
his resignation.
TERMINATION BY EMPLOYER
1. The grounds should either be just cause or authorized
causes;
2. There must be (a) Substantive Due Process and (b)
Procedural Due Process
JUST CAUSES {Serious-Willful-GFCO}
1. Serious Misconduct
 Transgression should be serious and grave; it should
pertain to improper or wrongful conduct that
transgresses some established rules.
 This should not pertain to mere error in judgment.
 Misconduct must have reasonable relation to the work
performed by the employee. It must show that the
employee has become unfit to continue being an
employee of the employer.
REQUISITES
1. Misconduct
2. Grave and aggravated in character
3. Relating to the performance of employee’s duties
4. Rendering the employee unfit to continue working for
the employer
2. Willful Disobedience/Insubordination
 This should pertain to an unlawful and intentional
attitude; wrongful and perverse. There must also be a
lawful order coming from the management, which
should have been made known to the employee.
Requisites:
1. Disobedience or insubordination;
2. Wilful or intentional characterised by a wrongful and
perverse attitude;
3. Order violated must be reasonable, lawful and made
known to the employee;
4. Pertain to duties which he has been engaged to
discharge;
3. Gross and Habitual Neglect of Duty
 Negligence has to be grave and habitual
 Gross negligence refers to want of care in the
performance of one’s work or duty.
 Habituality refers to repeated failure to perform one’s
duty for a period of time.
 One should take note all the infractions committed by
the employee during the period of his employment. The
offenses committed by him should not be taken single
and separately.
Requisites:
1. Neglect of duty;
2. Gross and habitual in character
4. Fraud and Willful Breach of Trust
Requisites:
1. Act, omission or concealment;
2. Involving a breach of legal duty, trust or confidence justly
reposed;
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LABOR LAW II – Atty. Charisma Nolasco
3. Committed against the employer or his/her
representative;
4. In connection with the employees work
 This is also known as Loss of Trust and Confidence.
 Requisites:
a) Loss of trust and confidence should not be simulated
b) It should not be used as a subterfuge on the part of
the employer;
c) It may not be arbitrarily asserted by the employer;
d) It must be genuine and not a mere afterthought.
 This covers cases involving employees occupying
positions of trust and confidence:
a) Managerial Employees;
b) Confidential Employees – employees holding
company funds/property.
5. 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 representative; and
6. Other Analogous Causes
 The commission of a crime against the employer is a
valid cause of dismissal.
 Abandonment is one example but for it to avail:
a) There must be failure to report to work without
reasonable/justifiable ground on the part of the
employee;
b) There must be a clear intention to sever the
employer-employee relationship.
AUTHORIZED CAUSES {InReReCD}
1. Retrenchment
 Termination by the employer through no fault of the
employee is resorted to because of the following
instances:
1) Industrial depression;
2) Seasonal fluctuation, etc.
BUT these instances should be indicative of the
losses incurred by the employer that would make the employer
decide to retrench the employees.
 Retrenchment is a last resort. There should be other
remedies that were resorted to first by the employer
before resorting to retrenchment such as, cost-saving
devices, compression of work schedule to save up
electricity, etc. The employer should prove that these
were implemented first to save the financial condition of
the company.
 Requirements:
1. Reasonably necessary and likely to prevent business
losses;
2. Losses (if incurred) should not be de minimis but
substantial, serious, actual, and real; if expected,
should be reasonably imminent;
3. Proven by sufficient and convincing evidence;
4. Retrenchment must be in good faith, for the
advancement of employer’s interest and not to defeat
or circumvent the employee’s right to security of
tenure;
5. Fair and reasonable criteria in ascertaining who would
be dismissed
2. Serious business losses/Closure/Cessation
 Not every loss incurred will mean that the employer is
experiencing serious business losses; the losses should be
substantial.
 The 30-day notice to the DOLE is important so that it can
ascertain the veracity of the claim of serious business
losses.
 The 30-day notice to the employees is important so they
can look for another job.
3. Redundancy
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LABOR LAW II – Atty. Charisma Nolasco
 It does not pertain to redundant positions but pertains to
the business demands of the company operation.
REQUISITES:
1. Superfluous positions or services of employees;
2. In excess of what is reasonably demanded by the
actual requirements of the enterprise to operate
economically and efficiently;
3. Good faith in abolishing redundant positions;
4. Fair and reasonable criteria in selecting the employee
5. Adequate proof of redundancy (i.e. new staffing
pattern, feasibility
studies/proposals, viability of the new created positions,
job description, approval by the management of the
restructuring)
4. Disease
 The labor code provides that the employee contracted
a disease and that his continue employment would be
prejudicial not only to himself, but his co-workers.
 Separation pay must be awarded to the dismissed
employee.
 the omnibus rules provide that there must be a
certification coming from a competent public health
authority that the illness of the employee cannot be
treated for a period of 6 months
5. Installation of labor saving device
1. Introduction of machine, equipment or other devices;
2. In good faith;
3. Valid purpose (save on cost, enhance efficiency and
other justifiable economic reasons)
4. No other option available than the introduction of
machinery or equipment and the consequent
termination of the employee
5. Fair and reasonable criteria in selecting the employee
PROCEDURAL DUE PROCESS
Twin-notice Requirement
a. First notice/Show-Cause Notice {PIPA}
 this should contain:
1) the infraction committed by the employee;
2) existing policy violated by the employee or a provision
in the LC;
3) penalty imposed to the errant employee;
4) ample opportunity to be heard.
b. Notice of Termination: {RPP}
 the employee should be apprised of
1) the results of the investigation;
2) policy violated;
3) the penalty to be imposed. Remember that dismissal
is not the only penalty
RETIREMENT
 60 (optional), 65 (compulsory), 5 years of service. If there
is an existing CBA providing for retirement, as between
the CBA and the provisions of the LC, the CBA should be
followed. If the CBA provides for a lower age of
retirement, let’s say 50 years old is the compulsory
retirement age under the CBA, can an employee who
reached 50 years later on complain that he/she has
been illegally dismissed? NO. The parties have validly
agreed on the age of retirement. But if the CBA provides
for lesser benefits than those provided in the statutes, LC,
you have to follow those statutorily prescribed.
 Take note of the retirement package: half month salary
(15 days + 1/12 of the 13th month pay + cash equivalent
of 5 days SIL).
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LABOR LAW II – Atty. Charisma Nolasco
Right to Self-Organization
SCOPE : All persons employed in commercial and agricultural
enterprises ... religious, charitable or educational institutions,
whether operating for profit or not
EXTENT: Form, Join or Assist labor organizations
PURPOSE:
(1) Collective bargaining
(2) Mutual aid and protection - Ambulant, intermittent and
itinerant workers, self-employed, rural workers and those
without definite employers
GOVERNMENT EMPLOYEES, may only have the right to form
associations for purposes not contrary to law
No right to self-organization
1. Managers(Art.255,LC)
2. Confidential Employees (Confidential employee rule /
Doctrine of Necessary Implication)
Labor Code, as follows provides that: {DEAF}
Confidential employees are defined as those who
(1) assist or act in a confidential capacity,
(2) to persons who formulate, determine, and effectuate
management policies in the field of labor relations.
Commingling/Mixture
EFFECT: Employees outside of the bargaining unit are deemed
excluded (Art. 256, LC)
Bargaining Unit
 A group of employees sharing mutual interests within a
given employer unit, comprised of all or less than all of
the entire body of employees in the employer unit or
any specific occupational or geographical grouping
within such employer unit.
RIGHTS and CONDITIONS (Art. 247, LC)
(1) Elect union officers, including those of the national
union/federation
Period: every 5 years
Qualifications to run for elective or appointive positions:
(a) Member in good standing
(b) Not a member of a subversive organization
(c) Not directly or indirectly engaged in subversive activities
(d) Not convicted of a crime in involving moral turpitude
Basis to determine eligible voters
1. Applicable payroll period and employee’s status
2. Payroll of the month next preceding the labor dispute in
case of regular employees
Grounds for Impeachment/Expulsion
 Irregularities in the approval of resolutions concerning
compensation of officers other than salaries and
expenses due to their positions (Art. 247[k], LC)
 Any violation of the rights and conditions of
membership (Art. 247, LC)
 Failure to submit reportorial requirements (Art. 248-A,
LC)
 Misuse of illegal disbursement of labor education and
research fund (Omnibus Rules)
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LABOR LAW II – Atty. Charisma Nolasco

Reportorial requirement 1. Upon issuance of charter certificate

PURPOSE: Filing of a petition for certification election
1. List of newly-elected officers/appointive officers within 2. Upon submission of
30 calendar days after election or change in the list of (a) names of officers, address of principal office and
officers (Art. 247[c]), minutes of election and list of (b) Constitution and by-laws
voters (Art. 248-A) PURPOSE: To exercise rights and privileges of a legitimate labor
2. Rendering of account by the treasurer or responsible union
officer:
(a) at least once a year within 30 days after close of Cancellation of Union Registration
fiscal year;
(b) such other times as may be required by a resolution GROUNDS (ART. 244-A, LC)
of majority of the members; 1. Misrepresentation, fraud, false statement
(c) upon vacating the office
• Constitution and by-laws
3. Constitution, by-laws, amendments, minutes of
ratification, list of members who took part in the (2) Voluntary dissolution
ratification within 30 days from adoption or ratification 2/3 of general membership voting in a meeting called for the
or amendment (Art. 248-A) purpose
4. List of members atleast once a year or whenever
required(Art.238-A)
Determination of Representation Status

Bargaining Agent
1. SEBA Certification
Legitimate labor union duly recognized or certified as the sole
2. Certification Election
and exclusive bargaining representative or agent of all
3. Consent Election
employees in a bargaining unit
4. Run-off Election
5. Re-run Election
When do labor unions acquire legal personality?
A. Independent Union / Federation / National Union / Trade
Union
Upon issuance of certificate of registration (2003 Bar)
EFFECT: Entitled to exercise rights and privileges of a legitimate
labor union

• When do labor unions acquire legal personality?

B. Local/Chartered Union

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LABOR LAW II – Atty. Charisma Nolasco
Questions:
1. Give the characteristics of each category of employees,
and state whether the employees in each category may
organize and form unions. Explain your answer. (5°/o)
Under Article 255 [245] of the Labor Code the following are
provided:
Managerial employees are not eligible to join, assist or form
any labor organization.
Supervisory employees shall not be eligible for membership in
the collective bargaining unit of the rank-and-file employees
but may join, assist or form separate collective bargaining units
and/or legitimate labor organizations of their own.
The rank-and-file union and the supervisors’ union operating
within the same establishment may join the same federation or
national union.
2. May confidential employees who assist managerial
employees, and who act in a confidential capacity or have
access to confidential matters being handled by persons
exercising managerial functions in the field of labor relations
form, or assist, or join labor unions? Explain your answer. (2.5°/o)
No. In Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery
v. Asia Brewery, Inc., G.R. No. 162025, August 3, 2010, the High
Court explained, who are those confidential employees
covered by the prohibition to join, form and assist any labor
organization under Article 245 [now 255] of the Labor Code, as
follows:
Confidential employees are defined as those who (1) assist or
act in a confidential capacity, (2) to persons who formulate,
determine, and effectuate management policies in the field of
labor relations. The two (2) criteria are cumulative, and both
must be met if an employee is to be considered a confidential
employee that is, the confidential relationship must exist
between the employee and his supervisor, and the supervisor
must handle the prescribed responsibilities relating to labor
relations. The exclusion from bargaining units of employees
who, in the normal course of their duties, become aware of
management policies relating to labor relations is a principal
objective sought to be accomplished by the confidential
employee rule.
3. What are the grounds for validly terminating the services of
an employee based on a just cause? 5%
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;
(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. (Art. 297 [282],
Labor Code)
4. Give the procedure to be observed for validly terminating
the services of an employee based on a just cause? 5%
As defined in Article 297 of the Labor Code, as amended, the
requirement of two written notices served on the employee shall
observe the following:
(a) The first written notice should contain:
1. The specific causes or grounds for termination as provided for
under Article 297 of the Labor Code, as amended, and company
policies, if any;
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LABOR LAW II – Atty. Charisma Nolasco
2. Detailed narration of the facts and circumstances that will serve
as basis for the charge against the employee. A general
description of the charge will not suffice; and
3. A directive that the employee is given opportunity to submit a
written explanation within a reasonable period.
“Reasonable period” should be construed as a period of at least
five (5) calendar days from receipt of the notice to give the
employee an opportunity to study the accusation, consult or be
represented by a lawyer or union officer, gather data and
evidence, and decide on the defenses against the complaint.
(Unilever v. Rivera, G.R. No. 201701, June 3, 2013; Section 12,
DOLE Department Order 18-A)
(b) After serving the first notice, the employer should afford the
employee ample opportunity to be heard and to defend
himself/herself with the assistance of his/her representative if
he/she so desires, as provided in Article 299 (b) of the Labor
Code, as amended.
“Ample opportunity to be heard” means any meaningful
opportunity (verbal or written) given to the employee to answer
the charges against him/her and submit evidence in support of
his/her defense, whether in a hearing, conference or some other
fair, just and reasonable way. A formal hearing or conference
becomes mandatory only when requested by the employee in
writing or substantial evidentiary disputes exist or a company rule
or practice requires it, or when similar circumstances justify it.
(Perez v. PT&T, G.R. No. 152048, April 7, 2009, Section 12,
DOLE Department Order 18-A)
(c) After determining that termination of employment is justified,
the employer shall serve the employee a written notice of
termination indicating that: (1) all circumstances involving the
charge against the employee have been considered; and (2) the
grounds have been established to justify the severance of their
employment.
The foregoing notices shall be served personally to the employee
or to the employee’s last known address. (Section 5, 5.1, Rule I-
A, D.O. No. 147-15, Series of 2015)
5. The modes of determining the exclusive bargaining agent of
the employees in a business are: (a) voluntary recognition; (b)
certification election; and (c) consent election. Explain how
they differ from one another. 5%
Voluntary Recognition refers to the process by which a legitimate
labor union is recognized by the employer as the exclusive
bargaining representative or agent in a bargaining unit, reported
with the Regional Office in accordance with Rule VII, Section 2 of
these Rules. Certification Election” or Consent Election refers to
the process of determining through secret ballot the sole and
exclusive representative of the employees in an appropriate
bargaining unit for purposes of collective bargaining or
negotiation. A certification election is ordered by the Department,
while a consent election is voluntarily agreed upon by the parties,
with or without the intervention by the Department. (Rule I,
Section 1, Book V, Rules to Implement the Labor Code)
6. State the jurisdiction of the Voluntary Arbitrator, or Panel of
Voluntary Arbitrators in labor disputes? (4°/o) {ii2-VIEW-U}
The voluntary arbitrator or panel of voluntary arbitrators shall
have exclusive and original jurisdiction to hear and decide all
unresolved grievances arising from:
1. The implementation or interpretation of the collective
bargaining agreements; (Article 274 [261], Labor Code, Section
4, Rule XIX, Book V, Omnibus Rules Implementing the Labor
Code)
2. The interpretation or enforcement of company personnel
policies which remain unresolved after exhaustion of the
grievance procedure; (Article 274 [261], Labor Code, Section
4, Rule XIX, Book V, Omnibus Rules Implementing the Labor
Code)
3. Wage distortion issues arising from the application of any
wage orders in organized establishments; (par. 4, Article 124,
Labor Code, Section 4, Rule XIX, Book V, Omnibus Rules
Implementing the Labor Code)
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LABOR LAW II – Atty. Charisma Nolasco
4. The interpretation and implementation of the productivity
incentive programs under RA 6971.
5. Upon agreement of the parties, shall also hear and decide
all other labor disputes including unfair labor practices and
bargaining deadlocks. (Article 275. [262], Labor Code, Section
4, Rule XIX, Book V, Omnibus Rules Implementing the Labor
Code)
6. Violations of a Collective Bargaining Agreement, except
those which are gross in character, shall no longer be treated
as unfair labor practice and shall be resolved as grievances
under the Collective Bargaining Agreement; (Article 274. [261],
Labor Code)
7. Juanito initiated a case for illegal dismissal against Mandarin
Company. The Labor Arbiter decided in his favor~ and ordered
his immediate reinstatement with full backwages and without
loss of seniority and other benefits. Mandarin Company did not
like to allow him back in its premises to prevent him from
influencing his co-workers to move against the interest of the
company; hence, it directed his payroll reinstatement and
paid his full backwages and other benefits even as it
appealed to the NLRC. A few months later, the NLRC reversed
the ruling of the Labor Arbiter and declared that Juanito's
dismissal was valid. The reversal ultimately became final. May
Mandarin Company recover the backwages and other
benefits paid to Juanito pursuant to the decision of the Labor
Arbiter in view of the reversal by the NLRC? Rule, with reasons.
(2.5%)
Mandarin Company cannot recover the backwages and
other benefits paid to Juanito pursuant to the decision of the
Labor Arbiter despite the reversal by the NLRC. The refund
doctrine has already been reversed in Garcia v. Philippine
Airlines, Inc., G. R. No. 164856, July 20, 2009, where the Supreme
Court then stressed that as opposed to the abovementioned
Genuino v. National Labor Relations Commission, G.R. Nos.
142732-33 & 142753-54, December 4, 2007, 539 SCRA 342 the
social justice principles of labor law outweigh or render
inapplicable the civil law doctrine of unjust enrichment.
8. Rosa was granted vacation leave by her employer to spend
three weeks in Africa with her family. Prior to her departure, the
General Manager of the company requested her to visit the
plant of a client of the company in Zimbabwe in order to
derive best manufacturing practices useful to the company.
She accepted the request because the errand would be
important to the company and Zimbabwe was anyway in her
itinerary. It appears that she contracted a serious disease
during the trip. Upon her return, she filed a claim for
compensation, insisting that she had contracted the disease
while serving the interest of her employer. Under the Labor
Code, the sickness or death of an employee, to be
compensable, must have resulted from an illness either
definitely accepted as an occupational disease by the
Employees' Compensation Commission, or caused by
employment subject to proof that the risk of contracting the
same is increased by working conditions. Is the serious disease
Rosa contracted during her trip to Africa compensable?
Explain your answer. 2.5%
In Government Service Insurance System vs. Besitan, G.R. No.
178901, November 23, 2011, explained the concept of
increased theory as follows:
Corollarily, for the sickness or resulting disability or death to be
compensable, the claimant must prove either (1) that the
employee’s sickness was the result of an occupational disease
listed under Annex “A” of the Amended Rules on Employees’
Compensation, or (2) that the risk of contracting the disease
was increased by his working conditions.
Certainty is not required only probability
Under the increased risk theory, there must be a reasonable
proof that the employee’s working condition increased his risk
of contracting the disease, or that there is a connection
between his work and the cause of the disease. (Castor-
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LABOR LAW II – Atty. Charisma Nolasco
Garupa v. Employees’ Compensation Commission, G.R. No.
158268, April 12, 2006, 487 SCRA 171, 180) Only a reasonable
proof of work-connection, not direct causal relation, however,
is required to establish compensability of a non-occupational
disease. (Government Service Insurance System v. Cordero,
G.R. Nos. 171378 & 171388, March 17, 2009, 581 SCRA 633, 640)
Probability, and not certainty, is the yardstick in compensation
proceedings; thus, any doubt should be interpreted in favor of
the employees for whom social legislations, like PD No. 626,
were enacted. (Government Service Insurance System v.
Corrales, G.R. No. 166261, June 27, 2008, 556 SCRA 230, 243-
244)
Applying the above ruling, Rosa must present a reasonable
proof that her working condition increased his risk of
contracting the disease, or that there is a connection between
his work and the cause of the disease otherwise the same is
not compensable.
9. A. Given that the liability for an illegal strike is individual, not
collective, state when the participating union officers and
members may be terminated from employment because of
the illegal strike. Explain your answer. (4%)
SUGGESTED ANSWER:
The following are the effects of participation in an illegal strike
and commission of illegal acts during strike:
1. Any union officer who knowingly participates in an illegal
strike; and
2. Any worker or union officer who knowingly participates in the
commission of illegal acts during a strike may be declared to
have lost his employment status; (Third paragraph, Article 279
(a) [264 (a)], Labor Code)
B. A sympathetic strike is stoppage of work to make common
cause with other strikers in another establishment or business. Is
the sympathetic strike valid? Explain your answer. (1°k)
The illegal stoppage of work by way of sympathetic strike has
been settled in the case of Biflex Phils. Labor Union (NAFLU) v.
Filflex Industrial and Manufacturing Cororation, G.R. No.
155679, 19 December 2006, where it was ruled that stoppage
of work due to welga ng bayan is in the nature of a general
strike, an extended sympathy strike. It affects numerous
employers including those who do not have a dispute with
their employees regarding their terms and conditions of
employment.Employees who have no labor dispute with their
employer but who, on a day they are scheduled to work,
refuse to work and instead join a welga ng bayan commit an
illegal work stoppage. Even if petitioners joining the welga ng
bayan were considered merely as an exercise of their freedom
of expression, freedom of assembly or freedom to petition the
government for redress of grievances, the exercise of such
rights is not absolute. For the protection of other significant
state interests such as the right of enterprises to reasonable
returns on investments, and to expansion and growth
enshrined in the 1987 Constitution must also be considered,
otherwise, oppression or self-destruction of capital in order to
promote the interests of labor would be sanctioned. And it
would give imprimatur to workers joining demonstrations/rallies
even before affording the employer an opportunity to make
the necessary arrangements to counteract the implications of
the work stoppage on the business, and ignore the novel
principle of shared responsibility between workers and
employers aimed at fostering industrial peace. There being no
showing that petitioners notified respondents of their intention,
or that they were allowed by respondents, to join the welga ng
bayan on October 24, 1990, their work stoppage is beyond
legal protection.
10. Due to business recession, Ballistic Company retrenched a
part of its workforce. Opposing the retrenchment, some of the
affected employees staged a strike. Eventually, the
retrenchment was found to be justified, and the strike was
declared illegal; hence, the leaders of the strike, including the
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LABOR LAW II – Atty. Charisma Nolasco
retrenched employees, were declared to have lost their
employment status. Are the striking retrenched employees still
entitled to separation pay under Sec. 298 (283) of the Labor
Code despite the illegality of their strike? Explain your answer.
(2%)
The strikers including the union officers should be paid their
separation pay by virtue of retrenchment notwithstanding the
illegal strike was declared illegal. The issue on entitlement to
separation pay due to authorized cause and the ground for
termination due to knowingly participating in illegal strike are
distinct and different.
11.
A. Pursuant to his power under Sec. 278(g) (263(g)) of the
Labor Code, the Secretary of Labor assumed jurisdiction over
the 3-day old strike in Armor Steel Plates, Inc., one of the
country's bigger manufacturers of steel plates, and ordered all
the striking employees to return to work. The striking employees
ignored the order to return to work. (a) What conditions may
justify the Secretary of Labor to assume jurisdiction? (2.5°k) (b)
What are the consequences of the assumption of jurisdiction
by the Secretary of Labor, and of the disobedience to the
return to work? Explain your answer. (2.5%)
Pursuant to Article 263 (g) [now 278 (g)], when a labor dispute
causes or is likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary of Labor
and Employment may assume jurisdiction over the dispute and
decide it or certify the same to the National Labor Relations
Commission (NLRC) for compulsory arbitration. (Section 1,
Operational Guidelines of Department Order No. 40-G-03,
Series of 2010, dated February 24, 2011)
For a valid exercise of the assumption of jurisdiction authority,
any of the following conditions must be present:
a. Both parties have requested the Secretary of Labor and
Employment to assume jurisdiction over the labor dispute; or
b. After a conference called by the Office of the Secretary of
Labor and Employment on the propriety of the issuance of the
Assumption or Certification Order, motu proprio or upon a
request or petition by either party to the labor dispute. In the
said conference. the parties shall also be encouraged to
amicably settle the dispute. (Section 2, Operational Guidelines
of Department Order No. 40-G-03, Series of 2010, dated
February 24, 2011)
B. What are the consequences of the assumption of jurisdiction
by the Secretary of Labor, and of the disobedience to the
return to work? Explain your answer. (2.5%)
The consequences of assumption of jurisdiction are as follows:
a. If a strike or lockout has not taken place, the parties are
enjoined to conduct any untoward action that may lead to a
strike or lockout.
b. if a strike or lockout has already taken place, all striking and
locked out workers shall, within twenty-four (24) hours from
receipt of an Assumption or Certification Order, immediately
return to work and the employer shall immediately resume
operations and readmit all workers under the same terms and
conditions prevailing before the strike.
c. At any point in time, the parties are not prevented from
submitting the dispute to Voluntary Arbitration with the
Secretary of Labor and Employment or his/her duly authorized
representative as Voluntary Arbitrator or Panel of Voluntary
Arbitrators. (Section 3, Operational Guidelines of Department
Order No. 40-G-03, Series of 2010, dated February 24, 2011)
While the consequence of disobedience to the return to work
has been ruled in the case of Manila Hotel Employees
Association v. Manila Hotel Corporation, G.R. No. 154591,
March 5, 2007. In holding that defiance of the assumption
order or a return-to work order by a striking employee, whether
a union officer or a member, is an illegal act and, therefore, a
valid ground for loss of employment status. The High Court
explained:
The law explicitly prohibits such acts.
ART. 263. STRIKES, PICKETING, AND LOCKOUTS
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LABOR LAW II – Atty. Charisma Nolasco
x x x x (omitted)
ART. 264. PROHIBITED ACTIVITIES
(a) x x x x
(omitted)
More to the point, the Court has consistently ruled in a long line
of cases spanning several decades that once the SOLE
assumes jurisdiction over a labor dispute, such jurisdiction
should not be interfered with by the application of the
coercive processes of a strike or lockout. Defiance of the
assumption order or a return-to work order by a striking
employee, whether a union officer or a member, is an illegal
act and, therefore, a valid ground for loss of employment
status. (Grand Boulevard Hotel v. Genuine Labor Organization
of Workers in Hotel, Restaurant and Allied Industries
(GLOWHRAIN), G.R. No. 153664, 18 July 2003, 406 SCRA 688,
710; Telefunken Semiconductors Employees Union-FFW v. Court
of Appeals, G.R. Nos. 143013-14, 18 December 2000, 348 SCRA
565, 582; Federation of Free Workers v. Inciong, G.R. No. 49983,
20 April 1982, 208 SCRA 157, 165)
12. Marciano was hired as Chief Engineer on board the vessel
MN Australia. His contract of employment was for nine months.
After nine months, he was re-hired. He was hired a third time
after another nine months. He now claims entitlement to the
benefits of a regular employee based on his having performed
tasks usually necessary and desirable to the employer's
business for a continuous period of more than one year. Is
Marciano's claim tenable? Explain your answer. (3%)
13. Lazaro, an engineer, organized a union in Garantisado
Construction Corporation (Garantisado) which has 200
employees. He immediately filed a Petition for Certification
Election, attaching thereto the signatures of 70 employees.
Garantisado vehemently opposed the petition, alleging that
25 signatories are probationary employees, while 5 are
supervisors. It submitted the contracts of the 25 probationary
employees and the job description of the supervisors. It argued
that if 30 is deducted from 70, it gives a balance of 40 valid
signatures which is way below the minimum number of 50
signatories needed to meet the alleged 25% requirement. If
you are the Director of Labor Relations, will you approve the
holding of a Certification Election. Explain your answer. (5%)
14. Dion is an Accounting Supervisor in a trading company. He
has rendered exemplary service to the company for 20 years.
His co-employee and kumpadre, Mac, called him over the
phone and requested him to punch his (Mac's) daily time card
as he (Mac) was caught in a monstrous traffic jam. Dion
acceded to Mac's request but was later caught by the
Personnel Manager while punching. Mac's time card. The
company terminated the employment of Dion on the ground
of misconduct. Is the dismissal valid and just? Explain. (5%)
15. Amaya was employed as a staff nurse by St. Francis
Hospital (SFH) on July 8, 2014 on a probationary status for six (6)
months. Her probationary contract required, among others,
strict compliance with SFH's Code of Discipline. On October 16,
2014, Dr. Ligaya, filed a Complaint with the SFH Board of
Trustees against Amaya for uttering slanderous remarks against
the former. Attached to the complaint was a letter of Minda,
mother of a patient, who confirmed the following remarks
against Dr. Ligaya: "Bakit si Dr. Ligaya pa ang napili mong
'pedia' eh ang tandatanda na n'un? E makakalimutin na yun
xx x Alam mo ba, kahit wala namang diperensya yung baby,
ipinapa-iso/ate nya?" The SFH President asks you, being the
hospital's counsel, which of these two (2) options is the legal
and proper way of terminating A maya: a) terminate her
for a just cause under Article 288 of the Labor Code
(Termination by Employer); or b) terminate her for violating her
probationary contract. Explain. ( 5%)
16.
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