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LABOR BAR EXAMINATION QUESTIONS 2018

I.
Narciso filed a complaint against Norte University for the payment of
retirement benefits after having been a part-time professional lecturer in
the same school since 1974. Narciso taught for two semesters and a
summer term for the school year 1974-1975, took a leave of absence
from 1975 to 1977, and resumed teaching until 2003. Since then, his
contract has been renewed at the start of every semester and summer,
until November 2005 when he was told that he could no longer teach
because he was already 75 years old. Norte University also denied
Narciso's claim for retirement benefits stating that only full-time
permanent faculty, who have served for at least five years immediately
preceding the termination of their employment, can avail themselves of
post-employment benefits. As part-time faculty member, Narciso did not
acquire permanent employment status under the Manual of Regulations
for Private Schools, in relation to the Labor Code, regardless of his length
of service.
(a) Is Narciso entitled to retirement benefits? (2.5%)
(b) If he is entitled to retirement benefits, how should retirement pay be
computed in the absence of any contract between him and Norte
University providing for such benefits? (2.5%)
ANSWER
A. Yes, Narciso is entitled to retirement benefits. Under RA 7641,
an employee maybe retired upon reaching the retirement age
and in case of retirement, the employee shall be entitled to
receive such retirement benefits as he may have earned under
existing laws and any collective bargaining agreement and
other agreements. Further, the same rule provides that
retirement benefits shall apply to all employees in the private
sector, regardless of their position, designation or status
including part time employees, job contractors, and persons of
personal service.

In this case, the rule in RA 7641 specifically regarding


retirement benefits in a part-time capacity applies to Narciso.

B. The amount of separation pay is based on two factors: the


amount of monthly salary and the number of years of service.

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Although the Labor Code provides different definitions as to
what constitutes “one year of service”, Book Six does not
specifically define ‘one year of service’ for purposes of
computing separation pay.

However, Articles 283 and 284 provides that in separation pay a


fraction of six months shall be considered one whole year.
Applying said principle in the present case, Narciso is entitled to
one-half month salary multiplied by the number of years
rendered in service, provided he has worked for at least six
months in a given year.

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ll.
Nayon Federation issued a charter certificate creating a rank-and-file
Neuman Employees Union. On the same day, New Neuman Employees
Union filed a petition for certification election with the Department of
Labor and Employment (DOLE) Regional Office, attaching the appropriate
charter certificate. The employer, Neuman Corporation, filed a motion to
dismiss the petition for lack of legal personality on the part of the
petitioner union.
a.) Should the motion be granted? (2.5%)
b.) The employer likewise filed a petition for cancellation of union
registration against New Neuman Employees Union, alleging that
Nayon Federation already had a chartered local rank-and-file
union, Neuman Employees Union, pertaining to the same
bargaining unit within the establishment. Should the petition for
cancellation prosper? (2.5%)

ANSWER
A. The motion should not be granted.

Art 241 [234-A] of Labor Code provides that the chapter shall
acquire legal personality only for purposes of filing a petition
for certification election from the date it was issued a charter
certificate.

In this case, for purposes of filing a petition for certification


election, New Neuman Employees has legal personality from
the time it was issued with a charter certificate.

B. No, the petition will not prosper.


Art. 247 of the Labor Code provides for the grounds that may
constitute for cancellation of union registration. The following
are: (a) Misrepresentation, false statement or fraud in
connection with the adoption or ratification of the constitution
and by-laws or amendments thereto, the minutes of
ratification, and the list of members who took part in the
ratification;
(b) Misrepresentation, false statements or fraud in connection
with the election of officers, minutes of the election of officers,
and the list of voters;
and (c) Voluntary dissolution by the members.
In this case, the employer must prove that a ground for
cancellation of union registration under the Labor Code is
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present. Failure to prove the same will bar the action to file the
petition.

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III
Due to his employer's dire financial situation, Nicanor was prevailed
upon by his employer to voluntarily resign. In exchange, he demanded
payment of salary differentials, 13th month pay, and financial assistance,
as promised by his employer. Management promised to pay him as soon
as it is able to pay off all retrenched rank-and-file employees. Five years
later, and before management was able to pay Nicanor the amount
promised to him, Nicanor died of a heart attack. His widow, Norie, filed a
money claim against the company before the National Labor Relations
Commission (NLRC), including interest on the amount of the unpaid
claim. She also claimed additional damages arguing that the supposed
resignation letter was obtained from her spouse through undue pressure
and influence. The employer filed a motion to dismiss on the ground that
(A) the NLRC did not have jurisdiction over money claims, and (B) the
action has prescribed.
(a) Does the NLRC have jurisdiction to award money claims including
interest on the amount unpaid? (2.5%)
(b) Assuming that the NLRC has jurisdiction, has the action prescribed?
(2.5%) (c) May Nicanor's spouse successfully claim additional damages as
a result of the alleged undue pressure and influence? (2.5%)
(c) May Nicanor's spouse successfully claim additional damages as a
result of the alleged undue pressure and influence? (2.5%)

ANSWER:
A. No, the Labor Arbiter has no jurisdiction to award money claims.

Article 223 of the Labor Code provides that the Labor Arbiter shall
have original and exclusive jurisdiction to hear and decide cases
involving, all other claims arising from employer-employee
relations, including those of persons in domestic or household
service, involving an amount exceeding thousand pesos (P5,
000.00) regardless of whether accompanied with a claim for
reinstatement, except claims for employees’ compensation, social
security, Medicare and maternity benefits.

B. Yes, the action has prescribed.

Article 291 of the Labor Code provides that all money claims
arising from employer-employee relations accruing during the

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effectivity of this Code shall be filed within three years from the
time the cause of action accrued; otherwise they shall be barred
forever.

C. Nicanor’s spouse cannot claim for damages as a result of undue


pressure and influence.

As elucidated in Virgen Shipping Cop vs. Barraquio, resignation is


defined as the voluntary act of an employee who finds himself in a
situation where he believes that personal reasons cannot be
sacrificed in favor of the exigency of the service and he has no
other choice but to disassociate himself from his employment.
Further, in Sarona v. NLRC, it was held that moral damages may be
recovered where the dismissal of the employee was tainted by bad
faith or fraud, or where it constituted an act oppressive to labor,
and done in a manner contrary to morals, good customs or public
policy and that exemplary damages are recoverable if the dismissal
was done in a wanton, oppressive, or malevolent manner.

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IV
Natasha Shoe Company adopted an organizational streamlining program
that resulted in the retrenchment of 550 employees in its main plant.
After having been paid their separation benefits, the retrenched workers
demanded payment of retirement benefits under a CBA between their
union and management. Natasha Shoe Company denied the workers'
demand.
(a) What is the most procedurally peaceful means to resolve this
dispute? (2.5%)
(b) Can the workers claim both separation pay and retirement benefits?
(2.5%)

ANSWER
A. The Labor Code provides that the most procedurally peaceful
means to resolve the dispute is through the grievance machinery.
It is a machinery for the adjustment and resolution of grievances
arising from the interpretation or implementation of their
Collective Bargaining Agreement and those arising from the
interpretation or enforcement of company personnel policies.

Since the dispute arose from the question on whether or not the
employees are entitled to retirement benefits under the CBA, the
same is a matter of enforcement of said CBA provision. Such
matters are among the issues which
may be resolved through the grievance committee.

B. Yes.

A Collective Bargaining Agreement incorporates the agreement


between the employer and the exclusive bargaining representative
reached after negotiations with respect to wages, hours of work
and all other terms and conditions of employment under a
bargaining unit. Among its mandatory provisions include
retirement plans and lay-offs.

As such, should the CBA include provisions which entitle the


employees to separation pay and retirement benefits in case of
lay-offs, such provisions must be respected. Thus, the employees
are entitled to both.

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V.
Nelda worked as a chambermaid in Hotel Neverland with a basic wage of
PhP560.00 for an eight-hour workday. On Good Friday, she worked for
one (1) hour from 10:00 PM to 11 :00 PM. Her employer paid her only
PhP480.00 for each 8-hour · "orkday, and PhP70.00 for the work done on
Good Friday. She sued for underpayment of wages and non-payment of
holiday pay and night shift differential pay for working on a Good Friday.
Hotel Neverland denied the alleged underpayment, arguing that based
on long-standing unwritten tradition, food and lodging costs were
partially shouldered by the employer and partially paid for by the
employee through salary deduction. According to the employer, such
valid deduction caused the payment of Nelda's wage to be below the
prescribed minimum. The hotel also claimed that she was not entitled to
holiday pay and night shift differential pay because hotel workers have to
work on holidays and may be assigned to work at night.
(a) Does the hotel have valid legal grounds to deduct food and lodging
~ costs from Nelda's basic salary? (2.5%)
(b) Applying labor standards law, how much should Nelda be paid for
work done on Good Friday? Show the computation in your test
booklet and encircle your final answer. (2.5%)
ANSWER
A. No , the hotel have no valid grounds to deduct food and lodging
costs from Nelda’s basic salary.

As held in Mabeza v. National Labor Relations Commission, G.R.


No. 118506, April 18, 1997: Granting that meals and lodging
were provided and indeed constituted facilities, such facilities
could not be deducted without the employer complying first
with certain legal requirements. Without satisfying these
requirements, the employer simply cannot deduct the value
from the employee’s wages. First, proof must be shown that
such facilities are customarily furnished by the trade. Second,
the provision of deductible facilities must be voluntarily
accepted in writing by the employee. Finally, facilities must be
charged at fair and reasonable value.

B. The rule in order to be paid regular holiday like two successive


holidays provides as follows, Where there are two (2)
successive regular holidays, like Holy Thursday and Good
Friday, an employee may not be paid for both holidays if he
absents himself from work on the day immediately preceding

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the first holiday, unless he works on the first holiday, in which
case he is entitled to his holiday pay on the second
holiday.(Section 10, Rule IV, Book III, Rules to Implement the
Labor Code)

Applying the above rule, unless Nelda had complied with the
rules on absences she is not entitled for her holiday pay for
work done on Good Friday.

However, on the assumption that she complied with the rules


Nelda should be paid as follows: P560 x 200%=P1,120.00 or
since he only worked for one hour the pay should be as follows:
70 x 200% = P140.00

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VI.
A certification election was conducted in Nation Manufacturing
Corporation, whereby 55% of eligible voters in the bargaining unit cast
their votes. The results were as follows:

Union Nana : 45 votes


Union Nada: 40 votes
Union Nara : 30 votes
No Union : 80 votes

Union Nana moved to be declared as the winner of the certification


election.

a) Can Union Nana be declared as the winner? (2.5%)


b.) Assume that the eligibility of 30 voters was challenged during the
pre-election conference. The ballots of the 30 challenged voters
were placed inside an envelope sealed by the DOLE Election Officer.
Considering the said envelope remains sealed, what should be the
next course of action with respect to the said challenged. (2.5%)

ANSWERS:

A. No, Union Nana cannot be declared as the winner.

Under Article 267 of the Labor Code, the union which obtained
a majority of the valid votes cast by the eligible voters shall be
certified as the dole and exclusive bargaining agent of all
workers in the appropriate unit.
Here, Union Nana obtained only 45 votes out of the total of 195
valid votes cast. A winning union should have received at least
83 votes.

B. The next course of action by the Election Officer Under Rule 9,


Department Order 40 should be the following:
a. Indicate on the envelope the voter’s name, the union or
employer challenging the voter and the ground for the
challenge;
b. Sign the sealed envelope together with the representatives
of the contending union and employer; and
c. Note all the challenges in the minutes of the election.
The Election Officer shall be responsible for consolidating all
the envelopes containing the challenged votes. However, the
same shall be opened and the question of eligibility shall be
passed upon only if the number of segregated voters will
materially alter the results of the election.
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VII

Nico is a medical representative engaged in the promotion of


pharmaceutical products and medical devices for Northern
Pharmaceuticals, Inc. He regularly visits physicians' clinics to inform them
of the chemical composition and benefits of his employer's products. At
the end of every day, he receives a basic wage of PhP700.00 plus a
PhP150.00 "productivity allowance." For purposes of computing Nico's
13th month pay, should the daily "productivity allowance" be included?
(2.5%)

ANSWER:

No, it should not be included.

In Boie-Takeda Chemicals, Inc. v. De la Serna, the so-called


commissions paid to or received by medical representatives
were excluded from the term basic salary because these were
paid to the medical representatives and rank-and-file
employees as productivity bonuses, which were generally tied
to the productivity, or capacity for revenue production, of a
corporation and such bonuses closely resemble profit-sharing
payments and had no clear direct or necessary relation to the
amount of work actually done by each individual employee.

Applying the said jurisprudence and for purposes of computing


Nico’s 13th month pay, his daily “productivity allowance”
cannot be included.

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VIII

Nathaniel has been a salesman assigned by Newmark Enterprises


(Newmark) for nearly two years at the Manila office of Nutrition City, Inc.
(Nutrition City). He was deployed pursuant to a service agreement
between Newmark and Nutrition City, the salient provisions of which
were as follows:

a) the Contractor (Newmark) agrees to perform and provide the Client


(Nutrition City), on a non-exclusive basis, such tasks or activities are
considered contractible under existing laws, as may be needed
by the Client from time to time;
b) the Contractor shall employ the necessary personnel like helpers,
salesmen, and drivers who are determined by the Contractor to be
efficiently trained;
c) the Client may request replacement of the Contractor's personnel if
quality of the desired result is not achieved;
d) the Contractor's personnel will comply with the Client's policies,
rules, and regulations; and
e) the Contractor's two service vehicles and necessary equipment will
be utilized in carrying out the provisions of this Agreement.

When Newmark fired Nathaniel, he filed an illegal dismissal case


against the wealthier company, Nutrition City, Inc., alleging that he was a
regular employee of the same. Is Nathaniel correct? (2.5%)

ANSWER:

No. Nathaniel is not correct.

Applying the law in this case, Newmark therefore carries on a distinct


and independent business and undertakes to perform the job, work or
service on its own account and under its own responsibility according to
its own manner and method, and free from the control and direction of
the principal Nutrition City in all matters connected with the
performance of the work except as to the results thereof. Also,
Newmark has substantial capital or investment.

Nathaniel is therefore the employee of Newmark who has a right to


dismiss him upon just cause. Hence, it is not proper for Nathaniel to
allege illegal dismissal against Nutrition City because he is not a regular
employee of the same.

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IX

Sgt. Nemesis was a detachment non-commissioned officer of the


Armed Forces of the Philippines in Nueva Ecija. He and some other
members of his detachment sought permission from their Company
Commander for an overnight pass to Nueva Vizcaya to settle some
important matters. The Company Commander orally approved their
request and allowed them to carry their firearms as the place they were
going to was classified as a "critical place." They arrived at the place past
midnight; and as they were alighting from a tricycle, one of his
companions accidentally dropped his rifle, which fired a single shot, and
in the process hit Sgt. Nemesis fatally. The shooting was purely
accidental. At the time of his death, he was still legally married to Nelda,
but had been separated de facto from her for 17 years. For the last 15
years of his life, he was living in with Narda, with whom he has two
minor children. Since Narda works as a kasambahay, the two children
lived with their grandparents, who provided their daily support. Sgt.
Nemesis and Narda only sent money to them every year to pay for their
school tuition.

Nelda and Narda, both for themselves and the latter, also on
behalf of her minor children, separately filed claims for compensation as
a result of the death of Sgt. Nemesis. The Line of Duty Board of the AFP
declared Sgt. Nemesis' death to have been "in line of duty", and
recommended that all benefits due to Sgt. Nemesis be given to his
dependents. However, the claims were denied by GSIS because Sgt.
Nemesis was not in his workplace nor performing his duty as a soldier of
the Philippine Army when he died.

(a) Are the dependents of Sgt. Nemesis entitled to compensation as a


result of his death? (2.5%)

(b) As between Nelda and Narda, who should be entitled to the


benefits? (2.5%)

(c) Are the minor children entitled to the benefits considering that they
were not fully dependent on Sgt. Nemesis for support?

ANSWER:

A. Yes.

Article 173(k) of the Labor Code defined “injury” as any harmful


change in the human organism from accident arising out of and
in the course of the employment while Article 173(m) of the
same defined “death” as loss of life resulting from injury or
sickness.

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A soldier on active duty status is really on 24 hours a day official
duty status and is subject to military discipline and military law
24 hours a day. He is subject to call and to the orders of his
superior officers at all times, 7 days a week. A soldier should be
presumed to be on official duty unless he is shown to have
clearly and unequivocally put aside that status or condition
temporarily.

Here, Sgt. Nemesis died from injuries sustained “in the line of
duty” as officially declared by the Line of Duty Board of Officers
of the AFP. He was not on approved leave of absence but was
on overnight pass to settle some important matters in Nueva
Vizcaya. Thus, all benefits due to the good sergeant must be
given to his dependents.

B. Neither Nelda nor Narda is entitled to the benefits.

Article 173(j) of the Labor Code defined “beneficiaries” as the


dependent spouse until he/she remarries and dependent
children, who are the primary beneficiaries. In their absence,
the dependent parents and subject to restrictions imposed on
dependent children, the illegitimate children and legitimate
descendants, who are the secondary beneficiaries. Article
173(i) defined “dependents” as the legitimate, legitimated or
legally adopted or acknowledged natural child who is
unmarried, not gainfully employed, and not over twenty-one
(21) years of age or over twenty-one (21) years of age provided
he is incapacitated and incapable of self-support due to a
physical or mental defect which is congenital or acquired during
minority; the legitimate spouse living with the employee and
the parents of said employee wholly dependent upon him for
regular support.

Here, Nelda is not a beneficiary of the deceased because she is


not a dependent spouse because she has not lived with the
latter for 17 years. Narda is not a beneficiary of the deceased
because she is not married to the latter.

C. Yes, the minor children are entitled to the benefits as


secondary beneficiaries of their father in the absence of any
primary beneficiary.

Where the law does not distinguish, neither should we


distinguish. The Labor Code did not restrict a dependent child
to one who is fully dependent upon the employee for support.

Here, the minor children received support from the deceased


only in the form of tuition fees. Even if said children were not

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supported by their father at all, they are entitled to support
from the latter under Article 176 of the Family Code. As long as
the minor children remain unmarried, unemployed and below
21 years of age, they are entitled to the benefits.

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X

Nonato had been continuously employed and deployed as a


seaman who performed services that were necessary and desirable to
the business of N-Train Shipping, through its local agent, Narita Maritime
Services (Agency), in accordance with the 2010 Philippine Overseas
Employment Administration Standard Employment Contract (2010
POEA-SEC). Nonato's last contract (for five months) expired on
November 15, 2016. Nonato was then repatriated due to a "finished
contract." He immediately reported to the Agency and complained that
he had been experiencing dizziness, weakness, and difficulty in
breathing. The Agency referred him to Dr. Neri, who examined, treated,
and prescribed him with medications. After a few months of treatment
and consultations, Nonato was declared fit to resume work as a seaman.
Nonato went back to the Agency to ask for re-deployment but the
Agency rejected his application. Nonato filed an illegal dismissal case
against the Agency and its principal, with a claim for total disability
benefits based on the ailments that he developed on board N-Train
Shipping vessels. The claim was based on the certification of his own
physician, Dr. Nunez, that he was unfit for sea duties because of his
hypertension and diabetes.

a) Was Nonato a regular employee of N-Train Shipping? (2.5%)


b) Can Nonato successfully claim disability benefits against N-Train
Shipping and its agent Narita Maritime Services? (2.5%)

ANSWERS:

A. No, Nonato is not a regular employee.

The Millares doctrine (Millares v. NLRC - G.R. No. 110524 July


29, 2002) provides that seafarers are considered contractual
employees. Their employment is governed by the contracts
they sign every time they are re[-]hired and their employment
is terminated when the contract expires. Their employment is
contractually fixed for a certain period of time. They fall under
the exception of Article 280 whose employment has been fixed
for a specific project or undertaking the completion or
termination of which has been determined at the time of
engagement of the employee or where the work or services to
be performed is seasonal in nature and the employment is for
the duration of the season.

A Filipino seafarer is governed by the Rules and Regulations of


the POEA. The Standard employment Contract governing the
employment of All Filipino Seamen on Board Ocean-Going

16
Vessels of the POEA, particularly in Part I, Sec. C specifically
provides that the contract of seamen shall be for a fixed period.

B. No, he cannot successfully claim disability such benefits.

In BAHIA SHIPPING SERVICES, INC., FRED OLSEN CRUISE LINE,


and MS. CYNTHIA C. MENDOZA vs. JOEL P. HIPE, JR. (G.R. No.
204699, November 12, 2014) the Court ruled on cases when
the conflict resolution rule not followed.

The filing of the complaint constituted a breach of [the


seafarer’s] contractual obligation to have the conflicting
assessments of his disability referred to a third doctor for a
binding opinion. Thus, the complaint should have been
dismissed, for without a binding third opinion, the fit-to-work
certification of the company-designated physician stands.

In light of the contrasting diagnoses of the company-designated


physician and Nonato’s personal doctor, his complaint will be
premature if done without any regard to the conflict-resolution
procedure under Section 20 (B) (3) of the 2000 POEA-SEC. Thus,
consistent with Philippine Hammonia Ship Agency, Inc. v.
Dumadag (Philippine Hammonia), the fit-to-work certification
of the company designated physician ought to be upheld.

In fine, Nonato’s permanent disability was not established


through substantial evidence.

17
XI

Your favorite relative, Tita Nilda, approaches you and seeks your
advice on her treatment of her kasambahay, Noray. Tita Nilda shows you
a document called a "Contract of Engagement" for your review. Under
the Contract of Engagement, Noray shall be entitled to a rest day every
week, provided that she may be requested to work on a rest day if Tita
Nilda should need her services that day. Tita Nilda also claims that this
Contract of Engagement should embody all terms and conditions of
Noray's work as the engagement of a kasambahay is a private matter
and should not be regulated by the State.

a) Is Tita Nilda correct in saying that this is a private matter and should
not be regulated by the State? (2.5%)

b) Is the stipulation that she may be requested to work on a rest day


legal? (2.5%)

c) Are stay-in family drivers included under the Kasambahay Law?


(2.5%)

ANSWER:

A. No, Nilda is not correct.

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.

They shall also participate in policy and decision-making


processes affecting their rights and benefits as may be provided
by law. (Art XIII Sec.3 1987 constitution)

B. Yes, such stipulation is legal. Provided that the work on a rest


day will: (a) offset a day of absence with a particular rest day;
(b) return for an equivalent daily rate of pay (Sec. 21 (a), (b) of
RA 10361 otherwise known as Domestic Workers Act).

C. No family drivers are not included.

“Domestic worker” or “Kasambahay” refers to any person


engaged in domestic work within an employment relationship,
whether on a live-in or live-out arrangement, such as, but not
limited to, general househelp, “yaya”, cook, gardener, or
laundry person, but shall exclude family drivers, children who
are under foster family arrangement, or any person who

18
performs domestic work only occasionally or sporadically and
not on an occupational basis.

19
XII

Nena worked as an Executive Assistant for Nesting, CEO of Nordic


Corporation. One day, Nesting called Nena into his office and showed her
lewd pictures of women in seductive poses which Nena found offensive.
Nena complained before the General Manager who, in turn, investigated
the matter and recommended the dismissal of Nesting to the Board of
Directors. Before the Board of Directors, Nesting argued, that since the
Anti-Sexual Harassment Law requires the existence of "sexual favors," he
should not be dismissed from the service since he did not ask for any
sexual favor from Nena. Is Nesting correct? (2.5%)

ANSWER:

No, Nesting is not correct.

Under RA 7877, Section 3, Work- related sexual harassment is


committed by an employer, manager, supervisor, agent of the
employer, or any other person who, having authority, influence
or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of whether
the demand, request or requirement for submission is accepted
by the object of said Act.

Likewise, contrary to Rayala's claim, it is not essential that the


demand, request or requirement be made as a condition for
continued employment or for promotion to a higher position. It
is enough that the respondent's acts result in creating an
intimidating, hostile or... offensive environment for the
employee.

Here, the showing by Nesting of lewd pictures of women in


seductive poses has an unmistakable sexual undertone even
enough to create an intimidating, hostile or offensive
environment for Nena.

Hence, Nesting is wrong.

20
XIII

Nicodemus was employed as a computer programmer by Network


Corporation, a telecommunications firm. He has been coming to work in
shorts and sneakers, in violation of the "prescribed uniform policy" based
on company rules and regulations. The company human resources
manager wrote him a letter, giving him 10 days to comply with the
company uniform policy. Nicodemus asserted that wearing shorts and
sneakers made him more productive, and cited his above-average
output. When he came to work still in violation of the uniform policy, the
company sent him a letter of termination of employment. Nicodemus
filed an illegal dismissal case. The Labor Arbiter ruled in favor of
Nicodemus and ordered his reinstatement with backwages. Network
Corporation, however, refused to reinstate him. The NLRC 1st Division
sustained the Labor Arbiter's judgment. Network Corporation still
refused to reinstate Nicodemus. Eventually, the Court of Appeals
reversed the decision of the NLRC and ruled that the dismissal was valid.
Despite the reversal, Nicodemus still filed. a motion for execution with
respect to his accrued backwages.

(a) Were there valid legal grounds to dismiss Nicodemus from his
employment? (2.5%)

(b) Should Nicodemus' motion for execution be granted? (2.5%)

ANSWER:

A. Yes, Nicodemus can be dismissed on based on willful


disobedience to the lawful order under Article 297 (a) of the
Labor Code and the “prescribed uniform policy” of the
company.

The basis is the case of St. Luke’s v. Sanchez, G.R. No. 212054,
March 11, 2015 were it was ruled: At the same time, the
employee has the corollary duty to obey all reasonable rules,
orders, and instructions of the employer; and willful or
intentional disobedience thereto, as a general rule, justifies
termination of the contract of service and the dismissal of the
employee.

B. Yes, Nicodemus’ motion for execution should be granted. He is


entitled to his accrued salary.

The accrued wages/salaries (reinstatement wages/salaries) is


the consequence of the reinstatement aspect of the decision of
the Labor Arbiter referred in paragraph 3, Article 229 [223] of
the Labor Code. This means that a dismissed employee whose
case was favorably decided by the Labor Arbiter is entitled to
21
receive wages pending appeal upon reinstatement, which is
immediately executory. In other words, it refers to the wages
or salaries which automatically accrued to a dismissed
employee from the notice of the Labor Arbiter’s order of
reinstatement until its ultimate reversal by the higher court,
which could be the NLRC, the Court of Appeals or the Supreme
Court.

22
XIV

Nelson complained before the DOLE Regional Office about Needy


Corporation's failure to pay his wage increase amounting to PhPS,000.00
as mandated in a Wage Order issued by the Regional Tripartite Wages
and Productivity Board. Consequently, Nelson asked the DOLE to
immediately issue an Order sustaining his money claim. To his surprise,
he received a notice from the DOLE to appear before the Regional
Director for purposes of conciliating the dispute between him and Needy
Corporation. When conciliation before the Regional Director failed, the
latter proceeded to direct both parties to submit their respective
position papers in relation to the dispute. Needy Corporation argued,
that since Nelson was willing to settle for 75% of his money claim during
conciliation proceedings, only a maximum of 75% of the said money
claim may be awarded to him.

• (a) Was DOLE's action to conduct mandatory conciliation in light of


Nelson's complaint valid? (2.5%)

• (b) Should the Regional Director sustain Needy Corporation's


argument? (2.5%)

ANSWER:

A. Yes. Art. 234 of Labor Code provides that all issues arising
from labor and employment shall be subject to mandatory
conciliation-mediation.

B. No. The Regional Director cannot automatically sustain Needy


Corporation's argument but is mandated to encourage parties
to generate more options and enter into stipulations, or offer
proposals and options toward mutually acceptable situations
and voluntary settlement.

Section 5 (b) of DO No. 151-16 Series of 2016 provides that in


case of failure of the parties to reach agreement in the first
conference, the SEADO may hold as many conferences as may
be deemed necessary within the 30-day mandatory
conciliation-mediation period to facilitate a settlement
agreement.

Nelson’s willingness to settle for 75% of his money claim does


not ipso facto mean that he is only entitled to a maximum
award with the same percentage. The SEADO must first
exhaust all options and both parties must agree that such is
the best settlement they could get before a decision can be
issued.

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XV

Nexturn Corporation employed Nini and Nono, whose tasks


involved directing and supervising rank-and-file employees engaged in
company operations. Nini and Nono are required to ensure that such
employees obey company rules and regulations, and recommend to the
company's Human Resources Department any required disciplinary
action against erring employees. In Nexturn Corporation, there are two
independent unions, representing rank-and-file and supervisory
employees, respectively.

a) May Nini and Nono join a union? (2.5%)

b) May the two unions be affiliated with the same Union


Federation?(2.5%)

ANSWER:

A. Yes.

There is no prohibition in the law or in the implementating


rules regarding the right of supervisory employees to organize
a labor organization or worker's association of their own. They
are, however, not allowed to become members of a labor
union composed of rank-and-file employees (Art. 255, Labor
Code)No. The Regional Director cannot automatically sustain
Needy Corporation's argument but is mandated to encourage
parties to generate more options and enter into stipulations,
or offer proposals and options toward mutually acceptable
situations and voluntary settlement.

B. Yes, two unions be affiliated with the same Union Federation

Art. 11, Sec. 3, 1987 Constitution provides that "the right of


the people, including those employed in the public and private
sectors, to form unions, associations or societies for purposes
not contrary to law, shall not be abridged." Conformably with
the constitutional mandate, Art. 245 of the Labor Code
provides for the right of supervisory employees to self-
organization, subject to the limitation that they cannot join an
organization of rank-and-file employees.

24
XVI

Nagrab Union and Nagrab Corporation have an existing CSA which


contains the following provision: "New employees within the coverage of
the bargaining unit who may be regularly employed shall become
members of Nagrab Union. Membership in good standing with the
Nagrab Union is a requirement for continued employment with Nagrab
Corporation." Nagrab Corporation subsequently acquired all the assets
and rights of Nuber Corporation and absorbed all of the latter's
employees. Nagrab Union immediately demanded enforcement of the
above-stated CSA provision with respect to the absorbed employees.
Nagrab Corporation refused on the ground that this should not apply to
the absorbed employees who were former employees of another
corporation whose assets and rights it had acquired.

(a) Was Nagrab Corporation correct in refusing to enforce the CSA


provision with respect to the absorbed employees? (2.5%)

(b) May a newly-regularized employee of Nagrab Corporation (who is


not part of the absorbed employees) refuse to join Nagrab Union?
How would you advise the human resources manager of Nagrab
Corporation to proceed? (2.5%)

ANSWER:

A. Nagrab Corporation was not correct in refusing to enforce the


CBA provision with respect to the absorbed employees.

At the outset, we should call to mind the spirit and the letter
of the Labor Code provisions on union security clauses,
specifically Article 248 (e), which states, x x x Nothing in this
Code or in any other law shall stop the parties from requiring
membership in a recognized collective bargaining agent as a
condition for employment, except those employees who are
already members of another union at the time of the signing
of the collective bargaining agreement.

This case which involves the application of a collective


bargaining agreement with a union shop clause should be
resolved principally from the standpoint of the clear
provisions of our labor laws, and the express terms of the CBA
in question, and not by inference from the general
consequence of the merger of corporations under the
Corporation Code, which obviously does not deal with and,

25
therefore, is silent on the terms and conditions of
employment in corporations or juridical entities.

B. The newly-regularized employee of Nagrab Corporation (who


is not-part of the absorbed employees) cannot refuse to join
Nagrab Union in view of the union security clause provision of
the CBA.

While the right to join includes the right not to join, however,
the exception is the UNION SECURITY CLAUSE where it
imposes upon employees the obligation to acquire or retain
union membership as a condition affecting employment. Thus,
I will advise the human resources manager of Nagrab
Corporation to comply with the provision of the CAB stating
that : “New_employees within the coverage of the bargaining
unit who may be regularly employed shall become members
of Nagrab Union.

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XVII

Upon compliance with the legal requirements on the conduct of a


strike, Navarra Union staged a strike against Newfound Corporation on
account of a collective bargaining deadlock. During the strike, some
members of Navarra Union broke the windows and punctured the tires
of the company-owned buses. The Secretary of Labor and Employment
assumed jurisdiction over the dispute.

(a) Should all striking employees be admitted back to work upon


the assumption of jurisdiction by the Secretary of Labor and
Employment? Will these include striking employees who damaged
company properties? (2.5%)

(b) May the company readmit strikers only by restoring them to


the payroll? (2.5%)

ANSWER:

A. Yes, all striking employees be admitted back to work


including striking employees who damaged company
properties.

Article 278 (g) provides that the assumption of the


Secretary of Labor over the dispute shall have the effect
of automatically enjoining the intended or impending
strike or lockout as specified in the assumption or
certification order. If one has already taken place at the
time of assumption or certification, all striking or locked
out employees shall 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 or lockout.

B. The company may not readmit strikers by restoring them


to the payroll.

The phrase “under the same terms and conditions”


found in Article 278 (g) [263 (g)] of the Labor Code was
interpreted by the Supreme Court in the case of the
University of Immaculate Concepcion, Inc. v. Secretary of
Labor as actual reinstatement and not payroll
reinstatement.

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XVIII

Nestor and Nadine have been living in for the last 10 years without
the benefit of marriage. Their union has produced four children. Nadine
was three months pregnant with her 5th child when Nestor left her for
another woman. When Nadine was eight months pregnant with her 5th
child, she applied for maternity leave benefits. Her employer refused on
the ground that this was already her 5th pregnancy and that she was
only living in with the father of her child, who is now in a relationship
with another woman. When Nadine gave birth, Nestor applied for
paternity leave benefits. His employer also denied the application on the
same grounds that Nadine's employer denied her application.

(a) Can Nadine's employer legally deny her claim for maternity
benefits? (2.5%)

(b) Can Nestor's employer legally deny his claim for paternity benefits?
(2.5%)

ANSWER:

A. The maternity benefit shall be paid only for the first four
deliveries or miscarriages starting May 24, 1997 when
the Social Security Act or RA No. 8282 took effect.

Entitlement to maternity leave benefits is not dependent


on the civil status of the pregnant woman in the private
sector, whether married or unmarried, is entitled to the
maternity leave benefitsThe company may not readmit
strikers by restoring them to the payroll.

The phrase “under the same terms and conditions”


found in Article 278 (g) [263 (g)] of the Labor Code was
interpreted by the Supreme Court in the case of the
University of Immaculate Concepcion, Inc. v. Secretary of
Labor as actual reinstatement and not payroll
reinstatement.

B. Nestor’s employer can legally deny his claim for paternity


benefits.

The Law provides that, a married male employee shall be


entitled to paternity benefits provided that: (a) he is an
employee at the time of delivery of his child, (b) he is
cohabiting with his spouse at the time she gives birth or
suffers a miscarriage, (c) he has applied for paternity

28
leave in accordance with Section 4 hereof and; (d) his
wife has given birth or suffered a miscarriage.

In this case, Nestor failed to comply with the


requirement because Nadine is not her lawful wife to
whom he is cohabiting.

29
XIX

Northeast Airlines sent notices of transfer, without diminution in salary


or rank, to 50 ground crew personnel who were front-liners at Northeast
Airlines counters at the Ninoy Aquino International Airport (NAIA). The
50 employees were informed that they would be distributed to various
airports in Mindanao to anticipate robust passenger volume growth in
the area. North Union, representing rank-and-file employees, filed unfair
labor practice and illegal dismissal cases before the NLRC, citing, among
others, the inconvenience of the 50 concerned employees and union
discrimination, as 8 of the 50 concerned ground crew personnel were
union officers. Also, the Union argued that its ground operations in the
Mindanao airports.

a) Will the transfer of the 50 ground crew personnel amount to illegal


dismissal? (2.5%)

b) Will the unfair labor practice case prosper? (2.5%)

ANSWER:

A. No, the transfer will not amount to illegal dismissal.

In the resolution of whether the transfer of the


respondents from one area of operation to another was
valid, finding a balance between the scope and limitation
of the exercise of management prerogative and the
employees’ right to security of tenure is necessary.

We have to weigh and consider, on the one hand, that


management has a wide discretion to regulate all aspects
of employment, including the transfer and re-assignment
of employees according to the exigencies of the business;
and, on the other, that the transfer constitutes
constructive dismissal when it is unreasonable,
inconvenient or prejudicial to the employee, or involves a
demotion in rank or diminution of salaries, benefits and
other privileges, or when the acts of discrimination,
insensibility or disdain on the part of the employer
become unbearable for the employee, forcing him to
forego her employment.

B. No, the act of the employer of transferring the employee


does not fall under the ULP that may be committed by
the management. Unfair Labor Practice by management
are as follows:

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a) Requiring as a condition of employment that a person
or an employee shall not join a labor organization or shall
withdraw from one to which he belongs;

b) Contracting out services or functions being performed


by union members when such will interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization;

c) Discrimination as regards to wages, hours of work, and


other terms and conditions of employment in order to
encourage or discourage membership in any labor
organization; and

d) Dismissal, discharge, prejudice or discrimination


against an employee for having given or being about to
give testimony under the Labor Code. (Art. 248, 249 of
the Labor Code, as amended)

31
XX

In Northern Lights Corporation, union members Nad, Ned, and Nod


sought permission from the company to distribute flyers with respect to
a weekend union activity. The company HR manager granted the request
through a text message sent to another union member, Norlyn.

While Nad, Ned, and Nod were distributing the flyers at the company
assembly plant, a company supervisor barged in and demanded that they
cease from distributing the flyers, stating that the assembly line
employees were trying to beat a production deadline and were
thoroughly distracted. Norlyn tried to show the HR manager's text
message authorizing flyer distribution during work hours, but the
supervisor brushed it aside.

As a result, Nad, Ned, and Nod were suspended for violating company
rules on trespass and highly-limited union activities during work hours.
The Union filed an unfair labor practice (ULP) case before the NLRC for
union discrimination.

a) Will the ULP case filed by the Union prosper? (2.5%)

b) Assume the NLRC ruled in favor of the Union. The Labor Arbiter's
judgment included, among others, an award for moral and exemplary
damages at PhP50,000.00 each for Nad, Ned, and Nod. Northern Lights
Corporation argued that any award of damages should be given to the
Union, and not individually to its members. Is Northern Lights
Corporation correct? (2.5%)

ANSWER:

A. The ULP case filed by the Union will not prosper. This is
because the act did not constitute an act of interfering,
restraining or coercing the said employees in the exercise
of their right to self-organization under Article 259 [a] of
the Labor Code.

In T & T Shoplifters Corporation/Gin Queen Corporation


v. T&T Shoplifters Corporation/Gin Queen Corporation
Workers Union, the Supreme Court had occasion to lay
down the test of whether an employer has interfered
with and coerced employees in the exercise of their right
to self-organization, that is, whether the employer has
engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employees’
rights; and that it is not necessary that there be direct

32
evidence that any employee was in fact intimidated or
coerced by statements of threats of the employer if there
is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-
organization and collective bargaining.
In the given facts, it does not show that the act of the
company supervisor in barging in and demanding for
Nad, Ned, and Nod to cease from distributing the flyers
relates to the commission of acts that transgress their
right to organize or it was made to interfere, restrain or
coerce them with the exercise of their right to self-
organization.

B. Northern Lights Corporation is not correct.

The rights that were violated belong to the union


members, Nad, Ned, and Nod, and not the union itself.
Further, the said union members were the real party in
interest in the said case for ULP filed by the union against
the corporation and not the union itself. The union is a
juridical person and as a rule it cannot not suffer moral
damages.

33
LABOR LAW BAR QUESTIONS 2018
with SUGGESTED ANSWERS

Submitted to:
ATTY. EDWIN E. TORRES

Submitted by:
CIARA ERIKA R. BRASILEÑO
(Student No. 1263-14)

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