Sharifa San Juan Quincose, Icb, Cpa Block A 5:30-7:30 PM F Labor Law Review

SHARIFA SAN JUAN QUINCOSE, ICB, CPA BLOCK A 5:30-7:30 PM F LABOR LAW REVIEW
112016
COVERAGE:
I. Review of Labor Law I (Standards) – DECEMBER
II. Review of Labor Law II (Relations) – JANUARY
III. Review of Labor Law recent jurisprudence (4 to 6 meetings)
NOTES:
I. QUIZZES composed of 35 questions every meeting for 40 minutes
II. Discussion of answers for 1 hour or 1 hour and 20 minutes
ASSESSMENT:
1. Social legislations are laws the purpose of which is to favor the marginalized sectors of the society.
F – To favor one sector over another is not the purpose of the law; (it is only a strategy to achieve its purpose of social
justice for equalization of social forces; e.i. to put them on equal footing)
2. Social legislations are legislations that seek to achieve social justice which means the subversion of the status quo.
T – The status quo is what is supposed to be corrected by social legislation. There must be labor laws precisely to
change injustice and turn it into justice.
3. Labor laws are called social legislations because labor laws seek to make the workers stronger than employers.
F – Laws come in to strengthen the weak to put them on equal footing, and not to make one party stronger than the
other party. Labor laws are classed social legislation because it seeks to make the employees AS STRONG AS
(and not stronger than) the employees.
4. The provisions of the Labor Code apply to all employees.

F – The Labor Code does not apply to CSC employees and employees of GOCC with original charter
5. Identify the different types/classifications of employees according to the following purposes:

a. Labor Code, in general – for purposes of determining who are covered by the Labor Code
1. Public sector employees
2. Private sector employees
3. Filipino
4. Non-Resident
b. Labor Standards Law – for purposes of determining who are entitled to the conditions of employment provided
under the Labor Code
1. Public sector employees
2. Private sector employees
3. Managerial employees
4. Field personnel
5. Members of the family of the employer dependent on him for support
6. Persons in the personal service of another
7. Domestic helpers
c. Labor Relations Law (Book V) – for purposes of negotiation/collective bargaining
1. Managerial employees
2. Supervisory employees
3. Confidential employees
4. Rank-in-file employees
d. Labor Relations Law (Book VI) – for purposes of employment status relative to security of tenure
1. Regular employees
2. Casual employees
3. Contractual employees
6. Distinguish the purposes of the above classifications. (already)
7. In the enactment of labor laws, the State Power exercised is the power of Taxation.
F – Police power
8. To determine that the act committed constitutes recruitment, the Supreme Court has laid down very specific/detailed
guidelines.
F – Any act committed by a person that makes another person believe that the former has capacity to recruit and as a
result thereof, the latter submits some requirements asked by the former or has paid fees therefor (People v.
Goze) (act of recruiter and effect on the recruitee)
9. As a matter of policy, recruitment and placement is both a public and a private undertaking.
F – It is primarily a public undertaking. The private sector is therefore strictly regulated.
10. Identify at least 2 distinctions between license and authority in recruitment.

LICENSE – NOT enough to undertake recruitment activity (applicable only to juridical entity; therefore, a natural
person has to have AUTHORITY before it may undertake recruitment)
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AUTHORITY – enough to undertake recruitment activity
11. A person who undertook recruitment activity and demanded fees from the recruit is not guilty of illegal recruitment if the
recruit was successfully deployed for work abroad.
IT DEPENDS:
1. If recruitment agency is so licensed, it may be
12. Because of the nature of its liability, a recruitment agency shall be liable for all violations committed by the foreign employer
in the event that the latter fails to satisfy the judgment in favor of the OFW.
F – NOT ALL violations committed against the employer will make the recruitment agency (e.g. criminal acts). It is only
for monetary awards (money judgment) that the recruitment agency is ALWAYS liable for acts of employer (or
foreign principal) [liability is solidary]
13. The burden of proof in an illegal recruitment case is on the recruiter.

F – GR: the burden of proof is on the one who alleges the illegal recruitment (can never be the recruiter)
14. In order that alleged recruiter will have the burden of proof in an illegal recruitment case, receipts for the fees paid by the
complainants must be submitted in evidence.
F – XPN to the GR: when the complaint states that the alleged illegal recruiter recruits at least 2 persons for a fee.
15. Give at least 2 distinctions between Direct Hiring and Name Hiring.
DIRECT HIRING : absolutely NOT allowed
: hiring Filipinos for work abroad without government permission (permission by POEA)
NAME HIRING :
BOTH : hiring Filipinos for work abroad without any assistance/facilitation of recruitment agency
Q: What does the POEA do?
A: APPROVES the contract.
121016
16. In certain types of overseas employment, the recruitment agency may require the OFW to pay for travel tax and airport fees.
F – All OFWs are exempted from travel tax and airport fees.
17. The recruitment agency cannot require the OFW to pay for VISA, Plane Ticket, OWWA Membership Fee, and POEA
processing fees.
T – The agency cannot require them from the OFW employee because it is the employer who is supposed to pay for
them.
18. The POEA, the NLRC, and the RTC are alternative venues in illegal recruitment cases.
F – Their jurisdiction is not concurrent with one another. They have distinct jurisdiction.
You go to the POEA when it is for enforcement of its regulatory authority (administrative cases) over recruitment
and placement agencies. When you go to the POEA, you are asking the POEA to suspend, revoke, impose fine or
cancel the license of recruitment and placement agencies.
You go to the NLRC when:
Q: 2 BODIES OF NLRC:
A:
1. Arbiters
2. Commission
Q: When you go to NLRC, what are you actually asking? What are the reasons why you go to the NLRC?
A:
1. Appeal of decision of Labor Arbiter
2. Appeal of decision of Regional Director of cases under Art. 129 (to settle money claims not
exceeding P5,000.00 not involving reinstatement)
Q: What if it is in the exercise of a visitorial power?
A: Appeal to Secretary of Labor
3. Original action for injunction
You go to the RTC when it involves the criminal aspect of labor cases.
a. Illegal recruitment (there need not be a finding by the Labor Arbitration Court)
b. Unfair labor practice (there must be a finding by the Labor Arbitration Court)
19. The Philippines adopt the policy of deploying Filipinos for work abroad as a strategy for national development.
F – The policy is to provide more jobs for Filipinos in the Philippines. (Policy is supposed to correct the reality).
20. To facilitate deployment of Filipinos for work abroad, the deregulation of private sector participation in recruitment and
placement is mandated under Sections 29 and 30 of RA 8042.
F – These provisions are already repealed because they were rendered unconstitutional by the SC. The reason for
rendering it unconstitutional is to protect the labor.
Deregulation means relaxing the standards.
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21. There are at least 10 forms of protection extended by law to OFWs. What is the strongest among these measures of
protection?
The strongest protection is the requirement of what should be stipulated in the employment contract and that it must
be approved by the POEA before the OFW is sent abroad.
22. In proving illegal recruitment constituting economic sabotage, conspiracy among the accused must be established.
IT DEPENDS.
Prove conspiracy if it is illegal recruitment by syndicate and not when it is illegal recruitment in a large scale.
23. The issuance of receipt for payment of VISA and airfare with notation that the person can leave for the US within 1 week
constitutes illegal recruitment if the entity issuing the receipt is a travel agency and is not a licensed recruitment agency.
F – Not necessarily. If it is not an act of recruitment, then it will not constitute illegal recruitment especially because as
a travel agency, part of its function is the arrangement for issuance of VISA and procurement of airfare.
24. An employee of a company may validly undertake recruitment activity for as long as the Company has a valid and subsisting
license as a recruitment agency.
F – The employee himself must have authority to recruit.
25. In an action for money claims filed by an OFW with the POEA against a recruitment agency, the judgment issued must
pertain only to the money claims demanded.
F – It can order other relief if it is within its jurisdiction.
Q: What do you call that authority wherein even if there is no complaint, the body can provide for relief, or the
authority of the agency/body to grant relief even if it is not prayed for in the complaint?
A: Visitorial authority (of the Secretary of Labor).
26. Albert embarked as a seaman on Jan. 10, 2010. On Feb. 15, 2010, he died from an unknown cause. Albert’s widow filed a
claim with the POEA for death benefit of P180,000 and P18,000 burial expenses. These benefits are provided under Memo
Circular issued by the POEA prescribing the standard employment contracts of Filipino Seamen. The Shipping Company
correctly opposed the claim contending that the employment contract signed by Albert stipulated only P50,000 for death
benefit and P10,000 for burial assistance and these have all been paid to Albert’s widow already.
27. As an employee of Y Co., Steve’s work consists of filling dry cell with hydrochloric acid, cleaning electric motors and winding
coils. After 6 years of employment, he died of severe anemia and kidney complications. Steve’s wdow filed for compensation
with the SSS. The SSS correctly denied the claim because there was no proof submitted that Steve’s illness was caused by
the working condition in Y Co.
28. Because of the authority granted by the Labor Code to the Secretary of Labor to issue the IRR for the Labor Code, any Rule
issued by the Secretary of Labor in implementation of the Labor Code has the force and effect of a law.
29. To be valid and binding, the employer-employee relationship must be established through a duly notarized written contract
of employment.
30. An employee hired by a person who was not expressly authorized by the employer to hire employees, cannot enforce the
obligations of the employer.
31. The employer-employee relationship exists between two parties even if there is only one element present in the
relationship.
TAKE HOME QUIZ:
1. Assessments 1 and 2 – submit on Thursday, December 15, 2016.
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TAKE HOME QUIZ:

1. The burden of proof in establishing employer-employee relationship is on the employer.
F – The burden of proof in establishing employer-employee relationship is on the EMPLOYEE because he is the one
who asserts a positive fact.
2. To prove the existence of employer-employee relationship, the quantum of proof required is preponderance of evidence.
F – Substantial evidence
3. X Co. operates a golf facility. The players therein require the services of caddies. To avoid undue competition among the
caddies, X Co. implemented a rotation system. Under this situation, X Co. is the employer of the caddies.
F–
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4. Under the SSS Law, employers are compulsorily required to register their employees in the System and pay the employer’s
counterpart contribution. If Y Co. pays for the employer’s SSS counterpart contribution for A, Y Co. is necessarily the
employer of A.
T–
5. If B is an independent contractor, B is the employer of the workers hired by it in performing the contract with C.
T–
6. If B is an independent contractor, C, the principal, has no liability whatsoever to the workers hired by B to perform the
contract with C.
F–
7. In order that B will be adjudged as an independent contractor, the most controlling characteristics of B is that it should have
sufficient capital in the form of tools, equipment or work premises.
F–
8. If B is a labor-only contractor, C, the principal, will be liable as employer of the workers hired by B to perform the contract
with C if B is found to be insolvent or bankrupt.
F–
9. If in the contract between A and B, B is required not to work for any other company which is in the same line of business as
A, A therefore is the employer of B.
T–
10. A lawyer engaged under a Retainership Contract with M Co. is an employee of the latter.
F–
11. Because of the nature of work of a lawyer where it is impossible for another to have control over the means and method of
accomplishing his output, a lawyer can never be considered as an employee of another.
F–
12. The same statement as in #11 above applies true to a doctor/physician.

F–
13. There is no employer-employee relationship between a jeepney driver and the jeepney owner/operator under the
“boundary-hulog” system.
F–
14. Because of one’s physical disability, their employment is actually an accommodation, that is why employers are allowed to
pay them below the minimum wage but not less than 75% thereof.
F–
15. The rules pertaining to apprenticeship is stricter than for learnership because in apprenticeship, the employer is required to
employ the apprentice if he passes the apprenticeship program.
F–
16. The reason why employees who are considered as managerial employees, managerial staff, domestic workers and persons
in the personal service of another, workers paid by result, non-agricultural field personnel, and members of the family of the
employer are not covered by the provisions of law on hours of work is because the employer cannot reasonably determine
the length of time they rendered as hours worked.
T–
17. Because of the 8-hour labor law, an employee can demand that work hours rendered be at least 8 hrs/day.
F–
18. Because of the no-work, no-pay principle, an employee should not be paid if he just sits around.
F–
19. An employee has the option whether to utilize the 1-hr mealtime or to work half of it and be paid.
F–
20. Rest day is an employee’s right, thus, the employee can decide to work on his rest day and be paid for it.
F–
21. In order to have no record of tardiness, an employee can choose to offset his undertime with his overtime.
F–
ASSESSMENT #3:
1. TE Labor Code covers government employees.

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IT DEPENDS – The Labor Code is not applicable to CSC employees and employees of GOCCs with original charter,
but is applicable to GOCCs without original charter.
We will know that the GOCC is with original charter if the GOCC is created directly by law.
2. In Labor Law the rights of the employer is called MANAGERIAL PREROGATIVES.
3. Managerial prerogatives are provided by law.

F – The managerial prerogative is not provided by law but is INHERENT.
4. Among the managerial prerogatives, the most unlimited (least limitable) is the right to control.
F – The right to hire (the prerogative to select).
Q: What is the only limitation imposed by law?
A: Only on AGE.
The right of control is limited by the TEST OF REASONABLENESS. The test of reasonableness is the
reasonable business necessity (for the pursuit of business)
The right to determine payment is limited by the MINIMUM WAGE.
The right to fire is the most limited because it is the law which provides when you can terminate the
services of an employee.
5. It depends whether F is an independent contractor (liability of X Co. will depend on whether F is insolvent or not. If
insolvent, X Co. will be subsidiarily liable.) If F is a labor-only contractor, X Co. will be solidarily liable.
Q: When do we say that a contractor is an independent contractor?
A: If he has sufficient capital and has the power of control the employees.
Q: Which one is the most controlling to determine whether a contractor is an independent contractor or a
labor-only contractor?
A: Power of control of the employees. The resources are not the most relevant factor.
6. VISITORIAL POWER is the most potent power granted to the Sec. of Labor that enables him to implement the provisions of
the Labor Code, particularly the Labor Standards.
Q: What does the visitorial power of the Sec. of Labor consist?
A: He can INSPECT the payroll of the company, REQUIRE any information from the employers and look at
the Records, INVESTIGATE, ASK questions.
Q: Can the Sec. of Labor delegate that authority?
A: Yes, to anyone he sees fit because the law says “or his duly authorized representatives”.
7. X filed a case for Illegal Recruitment in Large Scale against Y. Is a Motion to Quash available?
YES – Illegal Recruitment in Large Scale requires that the victims be at least 3 (3 or more).
2 is required in presuming that the act is RECRUITMENT (and for a fee).
8. The Judge has to apply the indeterminate penalty in Illegal Recruitment involving Economic Sabotage.
F – The penalty for Illegal Recruitment is an indeterminate penalty; thus, the Judge has the discretion to impose the
penalty within the range. But that does not apply in case of Illegal Recruitment involving Economic Sabotage and in
case the recruiter has no license or what was recruited is below 18 years.
9. Direct hiring is illegal because the placing of the employment did not pass through a licensed recruitment agency.
F – Because it did not pass through the POEA.
Q: Compare it with Name Hiring?
A: Direct Hiring is illegal because it does not pass through the POEA.
Name Hiring is legal because it still passes through the POEA.
In both Direct Hiring and Name Hiring, the employment is not processed by a recruitment
agency; but directly secured by the employer abroad (direct relation between the employer and
the employee).
But Direct Hiring is not approved by the POEA, therefore, illegal; while name hiring is approved
by the POEA, therefore, legal.
10. State the reason why an Alien Employment Permit is required before a nonresident foreigner may be employed in the PH.
Protection to the FILIPINO WORKER/WORKFORCE; so that if a Filipino worker is available, then he must be prioritized.
11. What are the conditions imposed before an AEP is issued?

1. There is no other Filipino available, competent and willing
2. The nonresident foreigner must train at least 2 Filipino understudies (for the purpose of No. 3)
3. It should be for a limited period only
12. As an amelioration measure, the RTWPB issued an Order mandating an increase of P100.00 in the wage of all employees. Is
it valid? Why or why not? (Therefore, the question is: Is a minimum wage order applicable to all employees?)
NO – It will not be valid as far as the non-minimum wage earners are concerned (e.g. managers). The wage order is
available only to minimum wage earners.
Q: But is the wage order mandating an increase of P100.00 in the wage of all employees in the region
valid?
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A: Yes, there is presumption of regularity. The Wage Order is valid, only that those who are not minimum
wage earners cannot claim a right thereto.
13. Jenny, sales clerk of B Co. is paid P280 per day. Ted, also a sales clerk is paid P260 per day. When a minimum wage order
increasing the wage by P20 per day, Jenny demanded for wage adjustment because of wage distortion.
IT DEPENDS – 3 Factors are considered:
(1) IF they work in the same company
(2) What is the minimum wage (you are assuming here that the minimum wage is P260)
(3) Effect of the increase
If Jenny and ted works in the same company, Jenny can demand for wage adjustment.
Q: Is there wage distortion?
Q: Why is the wage adjustment only applicable to Ted?
14. Johnny works 6 hours per day. Because of the 8-hour workday law, can Johnny demand working for 8 hours?
NO – Johnny does not have the right to demand work for at least 8 hours of work per day. The 8-hour workday law only
provides for the MAXIMUM work hours of employee. It only means that he cannot be required to work for more
than 8 hours of work per day; but if he may be required under certain circumstances, he will be paid an overtime
pay.
ASSIGNMENT:
Answer the rest of the questions. Submit on the day of exam.
MIDTERM EXAM:
1. Labor Standards.
AFTER MIDTERMS
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ASSESSMENT # 4
1. Identify and describe the 2 major labor/workers rights covered under Labor Relations Law.
1. RIGHT TO SELF-ORGANIZATION
- right of employee to join/not to join a labor organization and to enjoy the rights to be represented in collective
bargaining with employer
2. SECURITY OF TENURE
- right to be secured in one’s employment
- right not to be terminated from employment except for causes authorized by law
2. Identify and describe the 3 types of labor disputes.
1. LABOR MANAGEMENT DISPUTES, which arise from the issue about the terms and conditions of employment. The
disputants are the employer and employee.
2. INTRA-UNION DISPUTES, which arise from the issue about the rights and membership in the union. The disputants are
the members of the union.
3. INTER-UNION DISPUTES, which arise from the issue about the representation in the labor organization. The disputants
are the labor unions.
3. Identify the 11 machineries/mechanisms involved in labor dispute resolution.
A. Plant Level – internal mechanisms

1. Grievance Machinery – if organized establishment
2. Labor Management Council – if unorganized establishment
B. Out of Plant Level – government machineries
1. Supreme Court – Judicial branch
2. Court of Appeals
3. NLRC – Executive branch
4. Voluntary Arbitrator
5. DOLE (alter ego)
1. Labor Arbiter (LA)

2. Med-Arbiter (MA)
3. Voluntary Arbitrator (VA)
4. Labor Relations Division (LRD) (under the BLR)
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5. Regional Director (RD)
6. Department of Labor and Employment (DOLE) Secretary/ Office of the President
7. Bureau of Labor Relations (BLR)
8. National Labor Relations Commission (NLRC)
9. Philippine Overseas Employment Administration (POEA)
10. Court of Appeals (CA)
11. Supreme Court (SC)
MECHANISMS – JURISDICTION
 LABOR ARBITER (10)
1. Illegal dismissal
2. ULP
3. Legality of strikes/lockouts
4. Money claims – if there is claim for reinstatement (automatically to LA)
5. Money claims – if there is no claim for reinstatement and more than P5,000
 Money claims – if there is no claim for reinstatement and not more than P5,000
– Regional Director
 Order for payment of sum of money pursuant to visitorial power
* Therefore, there is no issue as to amount.
* May be exercised moto proprio.
– Regional Director
6. Money claims – if question raised by employer needs presentation of evidence and not by mere inspection
 Thus, it is removed from RD
7. Money claims of OFWs regardless of amount
8. Unresolved wage distortion
9. ?
10. ?
All decisions of Labor Arbiter are appealable to NLRC.
Decisions of Voluntary Arbitrator are not subject to review; thus, they may be brought via Petition for Review.
 MED-ARBITER
 Actually, the Med-Arbiter has no jurisdiction because it does not settle disputes; it merely facilitates.
4. What is “Tripartism”?
TRIPARTISM is an approach of resolving labor problems/disputes/concerns recognizing the indispensable role of

collaboration among the (1) Government, (2) Employer and (3) Employees.
5. Identify at least 2 distinctions between a labor organization and a legitimate labor organization;
1. Labor organization is BROADER since it may/may not be a legitimate labor organization.

2. Legitimate labor organization is NARROWER since it is a labor organization registered with the BLR.
 We have to distinguish because certain rights are available only to the legitimate labor organization.
6. An application for registration of a labor organization/union is filed with the ____________;
Federation whose membership spans different regions is registered with the BLR;
Otherwise, it is registered with the Regional Director.
7. Union members who decide to question the financial reports rendered by the officers of their union may undertake these
first and second legal steps to resolve their question:
1. Request appropriate financial reports from the union.

 Non-union members cannot request financial reports.
2. File Petition for Audit of Union Funds with the Regional Director or where the Certificate of Registration is issued.
8. Identify the 2 general classifications of the legal modes of settling labor disputes and identify the specific process/es falling
under each classification.
1. VOLUNTARY Modes
A. Negotiation and Collective Bargaining
B. Conciliation/Mediation
C. Voluntary Arbitration
2. COMPULSORY Modes
A. Conciliation/Mediation (in terms of process)
B. Voluntary Arbitration (if concerned with conflicts in CBA)
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9. Between the 2 general modes of settling labor dispute, identify which one is preferred as a matter of policy and explain why
it is the preferred mode.
VOLUNTARY MODE is preferred because a settlement agreed upon by the parties is a settlement that is best to resolve the
dispute between the parties. Anything that is voluntary is sustainable (since this is more in accord with nature).
10. In what way is conciliation/mediation a compulsory mode, and in what way is it a voluntary mode, of dispute settlement.
Conciliation/mediation is a compulsory mode of dispute settlement in a way that no dispute may be brought for compulsory
arbitration unless conciliation/mediation has taken place. Conciliation/mediation is a voluntary mode of dispute settlement
in a way that the agreement is still left with the parties to the dispute.
Voluntary arbitration is a voluntary mode of dispute settlement in a way that the parties may choose it but once
chosen, the resolution will depend on the voluntary arbitrator through the Arbitral Award. Voluntary arbitration is a
compulsory mode of dispute settlement in a way that if the dispute involves a conflict of CBA/company policy, it is
required that it be done through voluntary arbitration.
11. Identify at least 3 characteristics of a company union.
1. Its organization constitutes ULP because it is with intervention of employer

2. It is not registrable
3. It is an illegal organization (because of the natural influence of employer to the employees)
12. An application for registration will be denied if the applicant union is a company union.
TRUE.
13. A labor organization can attain the status of a legitimate labor organization even if it did not file an application for
registration with the DOLE-RO/BLR.
TRUE, because there is such a thing as affiliation, both national and local.
14. A labor organization who is not an independent union but is a local/chapter of a legitimate labor federation/national union
attains the status of a legitimate labor organization for all intents and purposes.
FALSE, except only for the purpose of filing a Petition for Certification Election.
15. A Collective Bargaining Unit is a legitimate labor organization.
FALSE. A Collective Bargaining Unit (CBU) is not an organization at all. It is a theoretical aggrupation of employees by reason
of commonality of interest for which they may be represented by one Exclusive Bargaining Representative (EBR).
16. Certification election is the process by which all employees in the establishment decide whether or not to be represented for
purposes of collective bargaining with the employer.
FALSE. Not all employees; only those who belong to the CBU which will be represented by the EBR.
17. A Petition for Certification Election is filed with ______________________.
A Petition for Certification Election is filed with the office that issued the Certificate of Registration. If registered with
Regional Office, file it with the Regional Office. If registered with BLR, file it with the BLR
 The filer must be a legitimate labor organization.
18. When a petition for certification election is filed, it is a ministerial duty of the med-arbiter or the regional office to conduct
the certification election after ascertaining the employees who shall belong in the collective bargaining unit sought to be
represented in the collective bargaining agreement with the employer.
IT DEPENDS if organized/unorganized. If non-organized, it is ministerial. If organized, it depends on whether or not (1) it is

filed within the freedom period or whether or not (2) there is a valid CBA.
19. For purposes of the right to self-organization, identify the different types of employees as classified by statutes and case law.
LABOR CODE:
1. Managerial Employees – exercise managerial prerogatives
– cannot form/join a labor union
2. Supervisory Employees – recommend effectively the exercise of managerial prerogatives
 Recommendation is given to higher official in such a way that the
recommendation will be implemented by the higher official.
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– can form/join a labor union BUT cannot join the union of rank-in-file
3. Rank-and-File Employees – can form/join a labor union
CASE LAW (jurisprudence):

4. Managerial Staff
5. Confidential Employees
20. Certification election can take place only if there are at least two legitimate labor unions in the establishment.
FALSE. No union is also a choice. Certification election is where they actually decide if they want to be represented.
21. Only legitimate labor organizations may file a Petition for Certification Election.
FALSE. This is only the general rule. The exception is when the employer is requested to bargain collectively with the EBR.
22. An application for certification election filed by a legitimate labor organization will be denied if an opposition is filed against
it on the ground that that the applicant union is a company union.
FALSE. It cannot be raised collaterally. It cannot be collaterally attacked; much less its denial. It is not a ground for denial of
Petition for Certification Election.
23. In the certification election conducted in Company A, all 100 employees belonging to the bargaining unit had cast their
votes. Illustrate by example the situation respectively resulting in the following:
i. Valid certification election;
Minimum votes for valid certification election: 51 valid votes
ii. Declare a winner;
1 union must have at least 26 valid votes regardless of how many unions are contending.
iii. Conduct a run-off election.
Union A: 23 valid votes

Union B: 23 valid votes
Union C: 25 valid votes
Union A and B must at least have 50% of the 51 valid votes.
To have a valid run-off, the first thing to consider is whether or not there was a valid election.
24. The contract that employees, as represented by the certified exclusive bargaining representative, has right to enter into with
their employer is called __________.
Collective Bargaining Agreement (CBA).
25. Only the union who won in a certification election has the right to negotiate a collective bargaining agreement with the
employer.
FALSE. There is also voluntary recognition. Here, majority of the employees must be members of legitimate labor
organization and there is no other legitimate labor organization.
26. Only the members of a union may be required to pay dues to the union.
FALSE. Non-member of a union may be required to pay dues to the union if he accepts the benefits from the CBA. Only the
EBR can demand union dues from non-members of a union.
27. Only union members may avail of the benefits secured through the CBA.
FALSE. Even non-members of a union may avail of the benefits secured through the CBA by paying union dues (agency fees).
Only those employees belonging to the CBU may avail of the benefits of the CBA.
28. What is a “check off” and the requirements for a valid check-off?
A check-off is a direct reduction from employee’s salary by reason of CBA or registration of a union. A duly registered union
may demand check-off.
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Individual authorization of employees is required if union members and not by reason of CBA. But in case of non-members
of a union, the union may collect dues even without authorization because the right of the union to collect dues in this case
is based on the acceptance of the benefits by non-members of a union. The mere fact that he accepts is already an
authorization.
29. On the part of the employee, in establishments where there is no Collective Bargaining Agreement, the duty to bargain
collectively generally refer to the:
1. Duty to immediately/promptly submit proposal to the employer.

2. Duty to negotiate with the employer in good faith.
30. On the part of the employer, in establishments where there is no Collective Bargaining Agreement, the duty to bargain
collectively generally refer to:
1. Duty to immediately/promptly respond to the proposal of the union.

2. Duty to bargain in good faith.
31. In addition to the above respective duties, in establishments where there is a Collective Bargaining Agreement, the duty to
bargain collectively also refers to the duty to _______________________________.
In establishments where there is a CBA, the duty to bargain collectively also refers to the duty to faithfully implement the
provisions of the CBA.
32. All interference in the employees’ right to self-organization is an unfair labor practice punishable as an unfair labor practice.
FALSE. Interference must be directed against the exercise of the right to self-organization.
33. What is a “yellow-dog” Contract?
A YELLOW DOG CONTRACT is a condition imposed by the employer with the employee before the employee may be hired
not to join the labor organization/to join in a labor organization chosen by the employer. It is a ULP.
34. What is the “Contract Bar” Rule?
A CONTRACT BAR RULE bars the filing of a Petition for Certification Election. No Petition for Certification Election may be
filed in organized establishment except within the freedom period, which is 60 days prior to the expiration of the CBA.
35. What is the requirement in order that a petition for certification election will be barred by the “Contract Bar” Rule?
In order that a Petition for Certification Election will be barred by the “Contract Bar” Rule:
1. There must be a valid and subsisting CBA.

2. The Petition for Certification Election (PCE) must be filed outside the freedom period.
 If no PCE is filed within the 60 day freedom period, then the existing CBA is deemed to continue.
36. Identify the 6 requirements for a valid Collective Bargaining Agreement.
1. Contracting parties must be duly authorized: (1) on the part of the union, it must be authorized only if certified by the
EBR; (2) on the part of the employer, the employer.
2. Not contain provisions contrary to law.
3. Contain mandatory provisions (what the law mandates the contract to contain).
4. Posted in at least 2 conspicuous places.
5. Ratified by majority of the members of the CBU.
6. Submitted tothe BLR.
37. Identify the 2 major components of a Collective bargaining Agreement.
1. Economic provisions – labor standards benefits

2. Political provisions – protects the status of the EBR (e.g. union security clause)
38. There are 4 general valid grounds laid down by Statutes for strike/lock-out.
FALSE. There are only 2 valid grounds:
1. Collective Bargaining Deadlock (Economic Strike)

2. Unfair Labor Practice (Political Strike)
39. To be valid, a strike/lockout needs only to have a valid ground.
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FALSE. To be valid, a strike/lockout needs to have:
1. Valid ground
2. Valid procedure before strike/lockout
3. Valid process during strike/lockout
40. Violations of the Collective Bargaining Agreement is not a valid strikeable ground.
IT DEPENDS.
If it constitutes a violation of the POLITICAL provisions:
strikeable because it is ULP.
If it constitutes a violation of the ECONOMIC provisions and it is FLAGRANT AND MALICIOUS:
strikeable because it is ULP.
41. Define/Describe the following:
a. Strike
STRIKE is any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor
dispute.
b. Lock-out
LOCKOUT is any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.
c. “Wild cat” strike/lock-out
“WILDCAT” STRIKE/LOCK-OUT is one declared and staged without the majority approval of the recognized
bargaining agent. It is an illegal strike.
d. “Cooling-off” period in strikes/lock-outs
“COOLING-OFF” PERIOD in strikes/lock-outs is the period of time allotted by law for the parties to settle their
disputes in a peaceful manner before staging a strike or lockout. The cooling off period is 30 days in case of CBA
Deadlock and 15 days in case of ULP. In case of union busting, there is no cooling-off period but the strike ban of 7
days applies.
e. “Strike/Lock-out ban”
“STRIKE BAN” is the 7-day waiting period reckoned from the time the strike vote report is submitted to the NCMB-
DOLE. Failure to comply with the strike ban makes the strike illegal.
f. “Feather-bedding”
“FEATHER-BEDDING” is the practice of a union of causing or attempting to cause an employer to pay or deliver or
agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not
performed or not to be performed, including the demand for fee for union negotiations, such as the practice of
demanding from the employer to give to it certain concessions just to agree to a CBA. It is a ULP.
g. “Blue-sky Bargaining”
“BLUE-SKY BARGAINING” is the practice of a union of making exaggerated or unreasonable proposals. It is asking
for terms which are impossible for employer to agree on. Thus, in blue-sky bargaining, there is no good faith in
bargaining because the union knows that it is impossible on the part of the employer to comply. It is a ULP.
h. “Improved offer balloting”
“IMPROVED OFFER BALLOTING” is a device to end the strike. It is on the part of employer who offers a better
proposal to avoid/resolve deadlock in collective bargaining negotiation.
i. “Reduced offer balloting”
“REDUCED OFFER BALLOTING” is a device to end the lockout. It is on the part of the employee who offers a better
proposal to avoid/resolve deadlock in collective bargaining negotiation.
42. In the conduct of a strike vote, all employees in the collective bargaining unit have the right to vote.
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FALSE. Only the members of the EBR have the right to vote in a strike vote.
 Strike vote is always monitored by the Med-Arbiter. The minimum notice for the conduct of strike vote is 24 hours in
case of union busting.
43. Because strike/lockout is a legal course of action of the employees/employer to pressure the other party to accede to their
respective positions in a collective bargaining negotiation, a legally valid strike/lock-out cannot be prohibited or stopped.
FALSE. A legally valid strike can be prohibited/ stopped when:

1. There is assumption of jurisdiction by the President or the Secretary of Labor.
2. Illegal acts/violence is committed during the conduct of strike (so widespread that it cannot be determined with
certainty who the perpertrator is).
44. A party desiring to enforce the criminal liability of the offender for unfair labor practice may immediately file his complaint
with the prosecution office.
FALSE. There must first be an administrative determination of the ULP before a criminal action may proceed.
45. Because of the unfair labor practice committed by Union A against Union B, the latter filed a notice of strike with the NCMB
fifteen days prior to the intended strike because the ULP committed amounted to union busting. What advice should NCMB
give to Union B?
The NCMB should advise Union B not to strike because the alleged ULP amounting to union busting committed by Union A
against Union B is not a strikeable ground. Union busting is only done by the employer and strike is a weapon against the
employer and not against the other union.
 A single act of employee cannot be a ground for lock-out.
46. What is a union security clause?
UNION SECURITY CLAUSE is a provision in the CBA that protects the status of the EBR.
47. Describe the following types of union security clauses:
i. “Maintenance of Membership”
“MAINTENANCE OF MEMBERSHIP” means that as a general rule, employees in the bargaining unit
represented by the EBR must continue to be members in good standing; otherwise they will lose their
employment.
ii. “Union Shop”
“UNION SHOP” means that as a general rule, the employees in the bargaining unit represented by the
Exclusive Bargaining Representative (EBR) who are not yet members of such EBR should become members
thereof after a particular period of time of their employment; otherwise they shall lose their employment.
iii. “Closed Shop”
“CLOSED SHOP” means that before the employee can be hired, he must be a union member.
48. Among the above enumerated types of union security clause, explain why “Closed Shop” is the strongest.
“Closed Shop” is the strongest among the above enumerated types of union security clauses because 2 management
prerogatives are shared by the EBR: (1) the power to hire and (2) the power to dismiss.
 Unlike the other two where only the power to dismiss is shared.
49. Because the right to join a labor organization also means the right not to join, no employee may be required to join a labor
organization.
i. Identify an exception to the above, if any.
Closed Shop Security Clause.
ii. Identify an exception to the exception, if any.
1. Religious ground.
2. Already a member of a legitimate labor organization.
(Because only a legitimate labor organization is protected by law)
50. Under all circumstances, the right to decide whether or not to join a labor organization is lodged with the employee.
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TRUE. It may be limited but it cannot totally abrogated.
-------------------------------------oOo-----------------------------------
112016
ASSESSMENT # 5
1. Describe briefly but completely what the right to security of tenure in employment means.
SECURITY OF TENURE means that an employee cannot be terminated except for just and authorized causes and
with observance of the due process of law.
2. In order that a person may claim the right to security of tenure, he/she must have the status of an employee.
TRUE.
3. Of the four general managerial prerogatives, identify which one/s is/are exercised in employment termination.
1. Right to DISMISS
2. Right of CONTROL – mainly the right of control is exercised in employment termination because the other
management prerogatives (e.g. right to dismiss, etc.) are only manifestations of the right
to control.
 Casual employment is where the work performed is not necessary but may be desirable to the usual
business of the employer. e.g. job of a janitor in an educational institution (unless the janitorial service is
actually the business of the employer, then it is not casual employment).
 Casual employee may attain a regular status but even if he attains a regular status, he may still be
terminated when the employer sees that the work is no longer needed. Unlike a typical regular employee
who may be terminated only on the grounds of just and authorized causes, the casual employee may be
terminated when the work for which he was hired no longer exists (he is a regular employee and cannot
be terminated only when the desirable work still exists), such as in case of redundancy.
4. State at least two constitutional provisions that provide the reason why security of tenure in employment is a
constitutionally protected right.
ART. III, Sec. 1:
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied
the equal protection of the laws.
ART. XIII, Sec. 3:
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law. xxx
5. Identify the five types of employment status and distinguish one from the other.
1. REGULAR EMPLOYMENT
A regular employee is an employee who performs work necessary (not necessary to use the word
desirable anymore because when it is necessary, it is also desirable) to the usual trade or business of the
employer and who has qualified the probationary period.
GR: Probationary period cannot exceed 6 months.

REASON: Probationary period is not subject to stipulations (it cannot be beyond 6
months, otherwise it is a violation of the Labor Code) because of the presumption that
the consent of the employee is vitiated considering the unequal footing of the employer
and the employee.
XPN: Employment contract that stipulates longer than 6 months of probationary period must be
approved by the DOLE (or TESDA in case it is technical)
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2. CASUAL EMPLOYMENT
A casual employee is an employee who performs work not necessary but desirable to the business or
trade of the employee.
3. PROJECT EMPLOYMENT
A project employee is an employee who performs work for a particular project. PROJECT means such
activity wherein the employee knows when his employment will end, that is, upon the completion of the
project; e.g. employees of construction company (but the office staff cannot be considered a project
employee in a construction company because they have to be there as long as the construction company
exists).
4. SEASONAL EMPLOYMENT
A seasonal employee is an employee who performs work during a particular season. SEASON means the
particular work in a year when such work is needed by the employer according to the nature of the
business of the employer; e.g. peak seasons in Hotels like a December or Summer or when there are
festivals.
5. PROBATIONARY EMPLOYMENT
A probationary employee is an employee who performs work not exceeding 6 months and during a
probationary period.
6. State the relevance of the classification of employees according to employment status.
To distinguish what grounds may an employee be terminated
E.g. Compared to a regular employee, a probationary employee (also applicable to other types of employment
status) may be terminated for another ground aside from the grounds available to the regular employee. All
employees may not be terminated without valid ground. Only that in case of other employees (other than the
regular employee), there is an additional ground for the termination of their employment. In the case of project
employee, the additional ground is the completion of a project. In case of seasonal employee, the additional
ground is end of season. In case of casual employee, the additional ground is when the work performed has been
phased-out/removed by the employer.
7. Identify the 2 general factors that determine the legality or illegality of employment termination.
1. Valid cause – comes with the nature of employment status

2. Valid procedure – as provided by law
8. Identify the provision in the 1987 Philippine Constitution that imposes the requirement that employment termination
may be effected only in compliance with due process of law and explain your answer.
ART. III, Sec. 1, of the 1987 Philippine Constitution provides that “no person shall be deprived of life, liberty, or
property without due process of law xxx’”. Employment, under the Constitution, is equated to property, which
cannot be taken without due process of law. And due process of law means valid ground and valid procedure.
9. Identify the provision in the 1987 Philippine Constitution that recognizes the inherent right of an employer to terminate
the services of his employees. Explain your answer.
ART. III, Sec. 1, of the 1987 Philippine Constitution provides that “no person shall be deprived of life, liberty, or
property without due process of law xxx.” The same constitutional provision protects both the right of the
employee and the employer. The right of the employee not to be dismissed is based on his right to property, which
may not be taken without due process of law. The right of the employer to dismiss is also based on his right to
property.
10. What does due process of law in employment termination mean?
DUE PROCESS OF LAW IN EMPLOYMENT TERMINATION refers to both substantive and procedural due process,
which means that no employee may be terminated except for valid cause and under valid procedure.
11. Distinguish, on at least four (4) general points of distinction, between the just causes and authorized causes of
employment termination.
1. Different grounds are enumerated for just and authorized causes.

2. The due process requirement is different for just and authorized causes.
3. As to the cause of the ground, just causes are due to the act of the employee while authorized causes have
nothing to do with the employee but due to the business operations.
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4. As to compensation in the form of separation pay, if the dismissal is legal, there is no separation pay in case of
just causes, but even if it is legal, there is separation pay in case of authorized causes.
 For both just and authorized causes, the employer always has the burden of proving that the termination
is legal.
12. ALL employees, regardless of their employment status, enjoy the right to security of tenure.
TRUE (because no employee may be terminated without valid ground)
13. All employees have the same rights when the right involved is the right of security of tenure.
FALSE (Refer to previous discussion)
14. Identify and describe the right to security of tenure as it pertains to the respective type of employment status.
The employees enjoy security of tenure and may not be terminated except for valid causes. In addition to that,
project employees enjoy security of tenure for the duration of the project; seasonal employees during season;
casual employees as long as the desirable work still exists; and probationary employees during the probationary
period.
REQUISITES FOR VALID TERMINATION OF PROBATIONARY EMPLOYEE:

1. Reasonable standards by which the probationary employee is to be evaluated
2. Standards should have been made known to the employee at the beginning of the engagement
3. Employee must be informed of the result of the evaluation
15. Explain briefly but completely why among the four managerial/employer’s right, the “right or prerogative to fire” is said
to be the most limited.
In the right to fire, it’s the law which says when it is to be exercised, while in other rights, the law says when it
cannot be exercised (anything that is not enumerated can be done). Thus, it is broader when what is provided is
what one cannot do.
16. The employee has the burden of proving that his or her employment was terminated by the employer.
TRUE (because it is the employee who alleges an affirmative fact; it would be different if what is to be proven is the
legality of the termination in which case the burden of proof is on the part of the employer since the employer may
only terminate an employee for valid cause).
17. Unless it is stated in the company rules and regulations that the penalty of dismissal shall be imposed for unauthorized
absences, the employee cannot be validly terminated on ground of unauthorized absences. Explain your answer.
FALSE. Even if the ground for termination is not provided for under the company rules and regulations, it may still
be a valid ground for dismissal, in the same manner that even if it is provided for under the company rules and
regulations, it may not be a valid ground for dismissal because the valid grounds for dismissal are those provided
for by law (in the first, because the grounds are provided for by law, even if it is not provided by the company rules
and regulations; and in the second, because the grounds do not fall among the grounds provided for by law, even if
it is provided by the company rules and regulations).
18. If it is clearly provided in the company rules and regulations that the penalty of dismissal shall be imposed for the
commission of a prohibited act, the dismissal of an employee on ground of commission thereof shall be valid. Explain
your answer.
Refer to above.
19. If the penalty of dismissal is provided in the company rules and regulation for the violation of a particular policy, the
dismissal of an employee for violation thereof will always be upheld for as long as the procedural due process in
employment termination was complied with.
FALSE. The penalty must be commensurate to the act committed (commensurality of penalty), which is within the
process of the courts to determine whether the letters of the law has been applied and also whether it is in
accordance to the right of the employee to security of tenure.
20. If the employment of an employee was terminated due to abandonment of work or employment, the employee must
prove that he had no intention to abandon his employment in order that his dismissal will be declared as illegal.
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FALSE. The employee need not go to such extent. The employee need only prove first that he was dismissed by his
employer. It is the employer’s turn to prove that the termination was not illegal. Thus, for mere failure of the
employer to give 2 required notices to the employee, the first notice directing the employee to explain why he
should not be declared as having abandoned his job, and the second notice informing him of the employer’s
decision to dismiss him on the ground of abandonment, the dismissal of the employee will be rendered illegal.
Indeed, the rule is that in illegal dismissal cases, the onus of proving that the employee was not dismissed or if
dismissed, that the dismissal was not illegal, rests on the employer and failure to discharge the same would mean
that the dismissal is not justified and, therefore, illegal.
21. In order that the dismissal of an employee to be valid, the twin-notice requirement of procedural due process in
employment termination must be complied with.
IT DEPENDS. If the employment termination is due to just causes, the twin-notice requirement of procedural due
process must be complied with and therefore, the employee must be given 2 notices: (1) Notice to Explain, and
afterwards, (2) Notice to Dismiss. On the other hand, if the employment termination is due to authorized causes,
the twin-notice requirement of procedural due process need not be complied with and therefore, the employee
need only be given 1 notice, the Notice to Dismiss, but said notice must be given not only to the employee but also
to the Department of Labor end Employment.
22. Identify the three (3) general classifications of the valid causes or grounds in employment termination by the employer.
1. Just causes
2. Authorized causes
3. Grounds that come with the type of employment status (not specifically provided for by law because it goes
with the nature of employment status)
e.g. For project employees, the termination of project to which the employee was hired
For seasonal employees, the end of season
 Fixed-term employment is not a recognized type of employment status because for

having a fixed-term, the employee will never attain regular employment status. As a
matter of law, the employee attains a regular employment status after the end of 6
months. Thus, as a matter of law, it is considered a prohibited employment status.
 To be valid, the fixed-term employment must pass the following requisites: (1)
circumstances surrounding the relationship show that they deal with each other in a
more or less equal footing; (2) it was voluntarily entered into, esp. on the part of
employee. Landmark case is Brentwood where the employee is a teacher and
therefore it cannot be said that the employee is not forced to have such
employment, unlike other employees.
23. In order that the dismissal of an employee on the ground of loss of trust and confidence to be valid, the employee
concerned must hold a fiduciary position in the company.
TRUE.
24. The obedience required of an employee to the orders of the employer strikes at the very heart of the prerogatives of
management. Disobedience to the employer’s order is a ground for dismissal and dismissal by reason of disobedience will
always be upheld for as long as the twin-notice requirement was complied with. Explain your answer FULLY.
FALSE. The twin-notice requirement, which is merely in compliance with the procedural due process, should not
work against the substantive due process, which is also a part of the due process enshrined under the Constitution.
Dismissal by reason of disobedience will not be upheld even if it complied with the twin-notice requirement, if the
dismissal was not (1) reasonable and was not (2) commensurate according to the circumstances. In order to
constitute as a valid ground for employment termination, it is not enough that there is disobedience – the law
requires that the disobedience on the part of the employee must be willful, that is, it must be characterized by a
wrongful and perverse attitude. Furthermore, in case of willful disobedience, the employer’s order, to constitute a
just cause for terminating his employment, must not only be reasonable and lawful and sufficiently known to the
employee – it must also be in connection with the duties which the employee has been engaged to discharge.
Indeed, where the employer’s orders are not reasonable, in view of the terms of the contract of employment and
the general rights of the parties, a refusal to obey does not constitute a just cause for the employee’s discharge.
25. For humanitarian reasons, A, an employee who was convicted for his attempt on the life of his employer B, was allowed
by B to continue in his employment. After five (5) years, however, B terminated A’s services on the ground that he can no
16
longer trust A due to the attempt he made on his life and he cannot have peace having him around. Decide on the illegal
dismissal case filed A.
B may validly dismiss A on the ground of A’s commission of a crime or offense by the employee notwithstanding B’s
previous accommodation to A allowing A to continue his employment for 5 years more. B’s humanitarian act
towards A should not be taken against B. The Labor Code merely provides as a just cause for termination of
employment by the employer that there be a commission of a crime or offense by the employee against the person
of his employer without specifying the prescriptive period by which such ground may be invoked by the employer. To
rule otherwise would put an employer who instantaneously terminated his employee on such ground in a better
position that a merciful employer, such as B, who still provided work for A despite a crime committed against him
by the latter. Besides, the right to dismiss is an employer’s prerogative, much more when this is exercised if the
employer is constantly under fear about his life and without peace of mind.
26. What does constructive dismissal from employment mean? Give at least two specific examples.
CONSTRUCTIVE DISMISSAL means quitting because continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving demotion in rank and a diminution in pay. There may be constructive dismissal if an
act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the
employee that it could foreclose any choice by him except to forego his continued employment.
Thus, constructive dismissal contemplates any of the following situations: (1) an involuntary resignation resorted
to when continued employment is rendered impossible, unreasonable or unlikely; (2) a demotion in rank and/or a
diminution in pay; or (3) a clear discrimination, insensibility or disdain by an employer which becomes unbearable
to the employee that it could foreclose any choice by him except to forego his continued employment.
The test of constructive dismissal is whether a reasonable person in the employee’s position would have felt
compelled to give up his position under the circumstances. It is an act amounting to dismissal but made to appear
as if it were not. In fact, the employee who is constructively dismissed may be allowed to keep on coming to work.
Constructive dismissal is, therefore, a dismissal in disguise.
Examples of constructive dismissal are:
1. Imposing indefinite preventive suspension on the employee without actually conducting any investigation or
preventing him from reporting for work by ordering the guards not to let him in or making him undergo a
floating status beyond 6 months (which is a clear notice of dismissal).
2. Changing the employee’s status from regular to casual or transferring him to a position where his continued
employment will be rendered impossible, unreasonable or unlikely.
27. Just like the employer, the employee must have a valid ground in terminating his/her employment, otherwise, the labor
tribunal will issue a return to work order to him/her.
FALSE. The employee may terminate his/her employment for whatever reason. He/she cannot be compelled to work
against his/her will; otherwise, there will be violation against involuntary servitude, as specifically enshrined under
the Constitution.
28. Identify the two (2) main factors that result in the illegality of dismissal from employment.
1. Invalid cause/ground (substantive due process), that is, when the ground for employment termination is not
among those provided for by law.
2. Invalid process (procedural due process), that is, when the required process for termination is not complied
with.
29. The consequences of illegal dismissal are the same regardless of the cause of the illegality thereof.
FALSE. If the cause of illegal dismissal is based on invalid cause/ground, the dismissed employee is e ntitled to
REINSTATEMENT (to the same position or to substantially the same position if the position is no longer present), or
SEPARATION PAY (if there is a strained relationship between the parties), and in either case, to BACKWAGES from
the time of dismissal up to the time of finality of decision, DAMAGES and ATTORNEY’S FEES. If there is a valid
cause/ground but there is invalid process, the dismissed employee is entitled to an indemnity in the form of
NOMINAL DAMAGES for violation of his right to due process. The amount of nominal damages vary from case to
case; e.g. P30,000.00 if dismissal is for a just cause since the employee has committed a wrongful act, and
P50,000.00 if dismissal is for an authorized cause since the employee dismissed has not committed any wrongful
act.
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30. Identify the consequences of illegal termination of employment by the employer.
In illegal dismissal cases, the following are the remedies granted to the illegally dismissed employee:
1. Actual reinstatement
2. Separation pay in lieu of reinstatement, in case reinstatement becomes impossible, non-feasible or impractical
3. Full backwages
4. Moral and exemplary damages
5. Attorney’s fees.
If the dismissal is for just or authorized cause but procedural due process was not observed, the dismissal is legal
but the employer is liable to pay indemnity in the form of nominal damages, which amount varies from case to case
(P30,000.00 if dismissal is for a just cause. PP50,000.00 if dismissal is for an authorized cause).
If the dismissal is for a cause which later on is proven to be non-existent, the dismissal is not effective; hence, the
employee should be reinstated. The employer is not liable to pay any backwages or damages.
02252017
VALID GROUNDS FOR DISMISSAL:

1. Just causes – attributable to the employee; twin-notice rule applies (opportunity to explain/defend himself is what is
important)
 In explaining, it’s either the employee denies it or he justifies his act
2. Authorized causes – have nothing to do with the act of the employee; notice contains the cause of his termination and the
effectivity of his termination which is 30 days after his receipt of such notice
 If the effectivity date is not indicated, the employee may still be terminated provided it is not done before the 30
days of receipt of employee
 Notice is to verify the veracity of such ground, that’s why it is also submitted simultaneously with the DOLE
3. Nature of employment of employee
The analogous causes pertain only to JUST causes; there are no analogous causes on authorized causes, because in just causes, there
may be grounds which are similar to the 6 enumerated grounds. Therefore, the rule is that if the ground does not fall squarely with
the 6 enumerated just causes, then they can be valid under analogous causes. For analogous causes which has nothing to do with the
business of the employer or work of the employee, it need to be stated in the company rules and regulations in order to meet the
requirement of due process, that is, to inform the employees. But if analogous causes have something to do with the business of the
employer or work of the employee, they need not to be stated in the company rules and regulations, for as long as the requirements
for that valid ground are met. In analogous cases, there must be a relationship between that act and the business of the employer,
even if it does not directly relate to it. If the acts do not fall squarely under the 6 enumerated just causes, there must be a direct
relationship with the business of the employer or work of the employee.
It does not mean that the ground is already valid just because it is categorized as gross misconduct. There should be meeting of the
requirements. It must not be simple misconduct. It must show the character of the employee himself and must relate to the business
of the employer or work of the employee. But if the requirements for gross misconduct are not met, it may still fall under analogous
cases. It intent to steal is not evident or if the value of the company property is immaterial to the company (therefore there is no
damage/prejudice to the employee and intent to gain is difficult to establish), but there is a company regulation prohibiting it, then it
may not be considered as gross misconduct. But if it is repeated, then it’s another matter (especially if he has already been previously
reprimanded). What is material is the character of the employee, e.g. his moral turpitude.
In gross misconduct, the value is not considered but the moral disposition of the employee. In gross negligence, you are talking about
the degree of prejudice to the employee but in habitual negligence, you are talking of repeated negligence. There are 4 requirements
for willful disobedience. In general, the requirements are: (1) that the ground exists; (2) whether the ground will be sufficient to
terminate the employee; (3) if the penalty to the act committed is commensurate to the penalty of dismissal.
All money claims arising from EE relationship prescribes after 3 years. If you filed it in the 6 th year, what is recoverable is the last 3
years before the claim has been filed (the other 3 years are barred).
Constructive dismissal is when there is no actual act of terminating the employee; there is no verbal/written notice. But the act of
the employer placed the employee in such a situation that continued employment becomes unbearable, as measured in the
normal/ordinary human conditions (the standard). Thus, if the situation is so hostile to the employee, then that could amount to
termination under constructive dismissal. The usual example is when the employee is placed in the floating status, even if the
floating status was valid, if such floating status exceeds 6 months; e.g. independent contractor who placed employees in floating
status beyond 6 months. In constructive dismissal, the defense of the employer is that he did not dismiss the employee. It would be
unbearable to the employee if he does not receive anything because he is on floating status. Another common circumstance
surrounding constructive dismissal is transfer of employee. As a rule, transfer is a managerial prerogative. It will be considered as
constructive dismissal if it amounts to (1) demotion in rank or (2) diminution of salaries, because there will be violation of security of
tenure. In case of business losses, for example, there is a ground for termination, that is, the ground of cessation of business
operation. Thus, the employee will be faced with 2 options, either to receive lower salaries (diminution of salaries) or to leave the
18
company. In case where the employee is not given any work but is allowed to come to office everyday and receives pay without
doing anything, it is still considered constructive dismissal because the employee has a right to uphold his dignity and such a scenario
may be considered a violation of his self-worth or human dignity.
Dismissal will be illegal if there is no valid ground or there is no compliance to procedure. But the consequences will differ. If the
illegality of dismissal is based on noncompliance to procedure (procedural due process), and therefore, the grounds for dismissal are
valid, the consequence is merely nominal damages (by reason of the name, that is, failure to comply with procedural due process), in
the amount of P30,000.00 without prejudice to cases when there is bad faith in the dismissal, such as when the employee, after
having been notified, tried to submit his explanation but the employee did not accept it (his mind was fixed that the employee will be
terminated without having first heard the employee as to the latter’s justification or defense) (Broadcom Asia Inc. GR 201298, Feb 5,
2014). Whether there is valid cause or without, if there is bad faith in effecting the dismissal, then damages may be awarded.
What if the dismissal is without valid ground? Even if there is compliance of procedural due process, the dismissal is still invalid. The
consequences of illegal dismissal for lack of valid ground are:
1. Reinstatement – this is the general rule.
XPN (reinstatement will not be effected):
a. Strained relations (that it will be prejudicial to either/both when the employee will be reinstated); therefore
separation pay will be awarded instead of reinstatement
b. The work that the employee has been performing before has already been phased out; meaning, there is no
substantial similarity of work to which the employee will be reinstated; therefore, separation will be awarded
instead of reinstatement
 In cases where the employee will not be reinstated, separation pay is given. The separation pay is 1 month for
every year of service; but there are also cases when the separation pay is ½ month in a case where the
employee has also contributed to the dismissal although it is not sufficient to justify dismissal (the employee is
therefore not 100% blameless). The separation pay is a matter of right if reinstatement cannot anymore be
effected, although it is within the discretion of the court how much will be awarded as per case.
2. Backwages, from the time he is illegally terminated to the time he is reinstated to the payroll or the finality of the decision.
 In case the employee finds work during the pendency, there is no deduction from employment during pendency of
illegal dismissal case. The employer should not be given premium for illegal termination.
3. No loss of seniority rights; therefore, whatever rights appurtenant to seniority will be made available to the employee; e.g.
length of service benefits or all benefits which will accrue or accrued to the employee (e.g. SIL) during all the time that he is
illegally dismissed) had he not been illegally dismissed
4. Attorney’s fees is a matter of right in case of illegal dismissal based on illegal cause
 It is paid when the employee is forced to litigate
 It cannot be given in cases there was merely a violation of procedural process; but may be given if there is violation as
to both procedural and substantive due process.
If the act of the employee has been committed before (e.g. last year) and it can be inferred from the acts of the employer that
he has already forgiven the employee, such previous act constituting a valid ground for dismissal cannot be a ground to
terminate the employee now, unless it will be in addition to what he has committed now. The previous act cannot be the sole
basis of dismissal although it may be used in addition to present infraction. Therefore, does the employer’s action prescribe? No.
But time is not to be considered but the acts of the employer (e.g. forgiveness).
How about separation pay/financial assistance based on compassionate justice or humanitarian ground? In PH Long Distance Co.
v. NLRC, the SC ruled that separation pay/financial assistant is given only if the cause of dismissal is not based on gross
misconduct, gross negligence, fraud, or willful disobedience, in other words, those which do not reflect the character of the
employee. In one case involving a teacher, separation pay/financial assistance based on compassionate justice or humanitarian
ground was granted based on the length of service, although in that case the dismissal was upheld because of gross inefficiency
of the teacher, (an analogous case only; not gross misconduct).
Should the employee have a valid ground also in terminating his employment so that such employment termination (or
resignation) may be considered valid? NO. The grounds provided under Art. 285 are only for the purpose of giving notice such
that if the cause falls within the enumeration, the EMPLOYEE MAY STILL LEAVE WITHOUT GIVING HIS EMPLOYER 30 DAY NOTICE
because of the constitutional right against involuntary servitude; however, he may be liable for damages if any is caused to the
employer by reason of such leaving of the employee from work without notice.
The person may be considered an employee of a corporation but he may be considered an officer of such corporation. In that
case, what governs is employer-employee relationship and is not an intra-corporate controversy.
REQUIREMENTS FOR INTRA-COPORATE CONTROVERSY:

1. Who the parties are: The parties must be corporate officers as against the corporation, or stockholders against the
corporation, or stockholders as against themselves AND
2. Issue involved: The issue involved is the enforcement of rights and obligations under the Corporation Code (more
important).
San Miguel case: employee submitted a proposal; the nature of the issue involved has nothing to do with the EE relationship, but
rather, the contract.
19
A was terminated. The termination was declared illegal because there was violation as to the giving of twin-notice rule. Must the
employee be reinstated? IT DEPENDS on whether there valid grounds existed. Even if it was illegal because there is no
procedural due process, other grounds must also be looked into to determine if the grounds for termination were also valid.
If the ground that will be used is loss of trust and confidence, and the act committed by the employee does not fall in any of the
other grounds, then it is required that the position of the employee must be of fiduciary character. The position concerned must
be such that the employee is assigned to that employee because trust is imbued by the employer to the employee. But if for
example the employee who does not hold a fiduciary position is found to be stealing company property, then loss of confidence
may not be invoked, but gross misconduct. Employees imbued with trust and confidence include those who are in charge of
handling and safekeeping of employer’s property and management (and also rank in file imbued with trust and confidence e.g.
cashier).
If the disease is detrimental to the employer or to his co-employees, or is not curable within 6 months, and the employer
decides to terminate the employee because the employee cannot work anymore, the employee must be terminated not on the
ground of abandonment (because he will not be entitled of separation pay if that is the case), but on the ground of disease. If
the disease is not prohibited by law, is not detrimental, or there is no certification that it is not curable, and if the employee feels
he cannot anymore work productively, then he can submit his resignation and claim for compensation under the Employees
Compensation under the State Insurance Fund.
The retirable age is 60, without prejudice to favorable terms under the CBA. If the employee is not a stewardess or a pilot or
those with younger retirement age, it is not a matter of right for him to opt for retirement unless it is provided for in the CBA, in
the employment contract or in the company rules.
The provision of law that says that technical rules of evidence are not controlling only means that they pertain to rules of
evidence but there are rules that are jurisdictional in nature especially if it affects a substantial right. For example, anything not
raised in the trial cannot be raised for the first time on appeal. It is not merely technical because there is a substantial right
involved on the part of the other party as to his defense.
The interpretation of the phrase “3 months for every year of the expired term” in the employment contract of OFWs, which says
that backwages shall be the expired portion of the contract or 3 months corresponding to the year of service, only means that
backwages cannot be given lower than that. The 3 months per year of service applies only if the contract of the employment is
more than 1 year. If for example, the contract for 4 months, the backwages is for 4 months. But if the contract is for 1 year, since
it is 1 year, what applies is 3 months per year of service. Thus, there is a gray area in this case. And thus, the court declares in a
subsequent case that the provision under RA 8042 is unconstitutional, not protective of labor, because it treats the OFWs
different from Filipinos working in the PH because in the latter, the dismissed employee without valid ground is entitled to
unexpired portion. Another law was however enacted reinstating the previous provision. How can you resolve this? You can
resolve this by saying that the Supreme Court is the ultimate arbiter of what the law means. Thus, even if another law is enacted
reinstating that provision in the previous law which has already been struck down by the SC as unconstitutional, the latter law
should not be considered to have any effect.
FINALS COVERAGE:
1. Difficult questions/areas in Labor Code (no computation).
2. Labor Relations.
3. Prepare NOTICES (NTE and NTD).
20

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4. The provisions of the Labor Code apply to all employees.

5. Identify the different types/classifications of employees according to the following purposes:

6. Distinguish the purposes of the above classifications. (already)

10. Identify at least 2 distinctions between license and authority in recruitment.

13. The burden of proof in an illegal recruitment case is on the recruiter.

TAKE HOME QUIZ:

1. Assessments 1 and 2 – submit on Thursday, December 15, 2016.

TAKE HOME QUIZ:

12. The same statement as in #11 above applies true to a doctor/physician.

1. TE Labor Code covers government employees.

2. In Labor Law the rights of the employer is called MANAGERIAL PREROGATIVES.

3. Managerial prerogatives are provided by law.

11. What are the conditions imposed before an AEP is issued?

Answer the rest of the questions. Submit on the day of exam.

2. Identify and describe the 3 types of labor disputes.

3. Identify the 11 machineries/mechanisms involved in labor dispute resolution.

A. Plant Level – internal mechanisms

1. Labor Arbiter (LA)

TRIPARTISM is an approach of resolving labor problems/disputes/concerns recognizing the indispensable role of

1. Labor organization is BROADER since it may/may not be a legitimate labor organization.

6. An application for registration of a labor organization/union is filed with the ____________;

1. Request appropriate financial reports from the union.

11. Identify at least 3 characteristics of a company union.

1. Its organization constitutes ULP because it is with intervention of employer

15. A Collective Bargaining Unit is a legitimate labor organization.

17. A Petition for Certification Election is filed with ______________________.

IT DEPENDS if organized/unorganized. If non-organized, it is ministerial. If organized, it depends on whether or not (1) it is

CASE LAW (jurisprudence):

i. Valid certification election;

Minimum votes for valid certification election: 51 valid votes

ii. Declare a winner;

iii. Conduct a run-off election.

Union A: 23 valid votes

Union A and B must at least have 50% of the 51 valid votes.

Collective Bargaining Agreement (CBA).

1. Duty to immediately/promptly submit proposal to the employer.

1. Duty to immediately/promptly respond to the proposal of the union.

33. What is a “yellow-dog” Contract?

34. What is the “Contract Bar” Rule?

1. There must be a valid and subsisting CBA.

36. Identify the 6 requirements for a valid Collective Bargaining Agreement.

37. Identify the 2 major components of a Collective bargaining Agreement.

1. Economic provisions – labor standards benefits

FALSE. There are only 2 valid grounds:

1. Collective Bargaining Deadlock (Economic Strike)

39. To be valid, a strike/lockout needs only to have a valid ground.

FALSE. To be valid, a strike/lockout needs to have:

41. Define/Describe the following:

c. “Wild cat” strike/lock-out

d. “Cooling-off” period in strikes/lock-outs

h. “Improved offer balloting”

i. “Reduced offer balloting”

FALSE. A legally valid strike can be prohibited/ stopped when:

46. What is a union security clause?

47. Describe the following types of union security clauses:

ii. “Union Shop”

iii. “Closed Shop”

i. Identify an exception to the above, if any.

Closed Shop Security Clause.

ii. Identify an exception to the exception, if any.

ART. III, Sec. 1:

ART. XIII, Sec. 3: