Poquiz Labor Law

Artucle 2
Conventions as part of the law
Incoporated, embedded in toto in the labor code of the philippines
Protection to labor
 Why is there a need: because between labor and capital, labor is weak as it
depends economically to the capital
o Two tierred test: economic dependence and
Full employment
 Those Able and willing to work can find work without undue difficuly
 Promition: cteation of more jobs through investments
 Mandate article 143, living wage
o LIVING vs. MINIMUM Wage:
 Minimum wage provides the boundary line so that wage or
compensation may not fall below the minimum. They can stioulate
as to higher compensation but not below minimum.
 Living wage : is nit mere substistence wage but one that can provide
worker invluding his family reasonable comfort/decent living
 Congress can enact law in the event of wage problem
 Wage issuance: Intraregional : will not encompass other region
 Standards are enumerated in the issuance ( memorize atleast 5)
which shall be applied in the same region
 Doctribe of double indemnity: Er not comlliant is liablle twice the
amount
WAGE DISTORTION
 Not hatmoniza with CBA
 In cases of merger and consolidation
Setltlement:
 With union-conclusive arbitration clause
o Parties are still required to settle amicabl
o Vikuntary arbitration appealable to CA within 10 days
 Without
 o Settle then to NCMB then transmit it to compulsory arbitration( Labor
arbiter) appealble to NLRC
Elements:
 Existence of hierarchy of position
 Increase in lower without increase to higher( abolition of position)
 Intraregion

National Tripartite: can drtermine exemption to wage board

Labor and capital

Bith are equal partners. Equal pritection
In every laboe dispute, not always in favor of labor: principle of non-oppression: liability
for the normal consequences of your acts.
 Example liability of er in illegal termination consequences:
o Reinstatement
o Full payment of backwages
o 6 percent legal interest

Poverty failure to enjoy decent living

Social justice
1. Principle of siquo te re tuo – use your own so as nit to jnjure other
Group of illegal settlers. Invoke social justice with clean hands
2. Solus papuli supreme est-
Refund doctrine: case for illegal dismissal ee won, er filed an appeal with NLRC, she
is reinstated for the meantime, it is not in conformity with no work, no pay but that is
the mandate of the law. NLRC stiil in favor of ee. Then by certiorari to CA ( not by
appeal) then to SC under rule 45. The decision was set aside by SC. Should ER refund?
(Garcia v. PAL) : there is no mire need to refund salaries pending decision. Principle
of social justuce is inapplicable in civil doctrine unjust enrichment.

Article 3 sec1: audit alteram portem : no one (due process)

Duty free phils: to prove validity of dismissal lies upin ee to prove upon clear and positive
evidence. To give flesh and blood to the security of tenure clause, apply clear and
convincing evidence.
Right to labor is property. Treated as property within the mantle of constitution.
Substatntive v. Procedural
 Substive: legality or illegLity of dismissal
o Just cause and authorized cause (
 just causs : diamissal process is inititTed by ee. In auth the dismissal
is inititiated umby er
 Just cause no paynent of separation pay ( doctrine of toyota ruling)-
no distinctiin as long as it is just cause dismissal.
 No compliance of er to due proceeas, employer is liable to pay
indemnity which is now 30,000. Whild in ACD shoukd pay indemnity
which is 50,000
 SC can reduce because of auprervining events
 Company ckiss down its business
 Just causds: serious misconduct, willful disobenience, neglect
of duty, fraud, willful breech of trust, analogous cases
 Procedurak: legality of manner of dismissal
Just causes
 Serious misconduct- improper conduct thaat is commited in serious and aggrVafed
manner
a. Sexual harassment
b. Fighting in working premises. Mere fighting would not justify dismissal. It is
not a mere verbal tassle. With Actual body contact.
c. Gambling: because of its pernicious effects
d. Drug use in workjng premises- drug testing also where ee refuse to submit,
a valid cause of dismissal
e. Immorality- a conduct is disgracefull if it is not accepted by the public. It is
immoral.
 Unmarried teaxher to unmarried teacher(not immorality) : morality
is based on public morality and not religious morality
 Teacher and a student: no immorality as morality is based in the
truism that the heart has own reasom that only him can understand Commented [1]:
 Case: company guard while patrolling the company premises. He
overheard a noise in one room. When he entered two ee having
sexual intercourse. Both of them are dismissed. Proper? Yes becausd
sexual intercourse imflammed by lust or affection should be done in
a manner that will not offend public decency.
 f. Theft- stealing company money or property. Co employee’s property is now
included for cause of serious misconduct.

 If Value of the property is negligible, dismissal is too harsh a penalty

on basis of amountbof taken property, by er length of service (under
first offense rule)
 Not to give premium to an act of dishonesty.
Impossing penalty: doctrine of commensurate penalty
 Degree of offense committed. If grave stiffer is applied if light, lighter penalty is
imposed.
 Conditions affecting imposition
o Length of service- roy doctrine
o Gravity
o First offense rule- mitigate the penalty to be imposed but thisnprinciple
including length of service would overshadow the grave offenseSo if a grave
offense was commited, although the ee is working for long period and it is
his first offense, it wont matter.
o Nature of employment.
 Managerial: mere finding of loss of trust and confidence would justify
dismissal.
 Unlike in rank and file: tidious investigation reguired
 Confidential: mere loss of trust would justy dismissal
o Nature of business
 If educational give impitus to morality
 Smoking prohibition can be harsh a penalty to one business but not
other business like gasoline station.
o Collective infractions rule- totalling the infractions to justify the dismissal.
Iff this is commited and proper penalty is impossed, subsequent actions
related can be added to the first offense
o Principle of charity- application of social justuce and protection to labor
cause. On broader ground of social justice. Applied in lowly ee. Sc “
considering the person dismissed is a lowly employee, to dismiss him would
affevt his family. The dismissal is too harsh a penalty. “
o Principle of equity- combined with other principles like length of srvice Commented [2]:

2nd day poquiz labor

Er-ee
Authorized cause dismissal
Fair and reasonable criteria
Seniority- equity to the job based on length of service. LIFO RULE ( last in first out rule)
Authorized cause dismissal- shall be notified individual by way of individual letter. The
company that notified through bulletin is not proper

Retrenchment
 To downsize, to reduce, delayaring to prevent exonomic downfall
 The company is in the verge of economic collapse the employer shoukd embark
on retrenchnent to prevent losses. Losses include not only aactual losses but also
perceived losses
 Requirrements
 2 separaate notice
 Payment of separation pay. 1 month pay for less than 1 year ee and
half of pay for every year of service
 Done in gf
 Abs cbn close its entire broadcasting network. Those affected file case demanding
separation pay. Is abscbn liable?
Yes. The closure of abs is partial close of business is a form of retrenchment.
Retrenxhment includes closure of kne department, product line.

Redundancy
 There is no duplication of function.
 The position is redundant is superfluent and thhe outcome resukts to over hirinv
of workers. Decljne in the business, closure in one economic line
 There is excess services than that needed bybthe company. Who are not needed
economically
 Ahould they be maintained? Yes
 Decline on the volume of business can be lack of raw materials can result to
redundancy
 Pay full payment for every year of service
Diaease
 Must not be curable in 6 months. If 6 months, he shall be allowed to take leave of
absence and be abke to return after. If he will nit be admjtted, constructive
dismissal.
 If the disease is not curable: the company can validy dismiss the employee
 What kinf of disease is contemplated? The law does nit distinguish. All is included.
  Employee must submit a governmment record of assessment
Mamangement perogative
 To establish and
Procedural aspect of dismissal.
 3 notice anf first notice. Formal specific charge. And intelligible hearing and notice
o Perez doctrine: ample opportunity to be heard. Hearing or conferrnxe bg
virtur of implenting rules. Today ample opportunity is folowed. Exemplified
in the employer is asked to explain in writing. Is there substatial
compliance? Yes.
 Post- notice/ notice of dismissal. Written notice informing him why he is validly
dismissed
o Purpose: in order to give the dismissed employer to file the proper
complaint of dismissal with the proper forum.
Violation of substantive or procedural would resultto illegal dismissal, normal
consequences
 Reinstatement- restoration of ee to his former position
o Actual and pay roll reinstatement. Actuak restored to former position.
Payroll only to payroll.
o Why dirs the law allow the option?
 Payroll reinstatement is a lesser evil.
 The er doesn’t want to see the ee
o Pioneer ruling: it is immediately self executory( reinstatement ruling). No
need of writ of exexution. Uoon receipt of employee of decision, it is already
executory.
o Stubborn refusal of ee,
 file a motion to cite in contempt,
 pay monthly intallment,
 labor arbiter can file motu proprio an order of reinstatement.
o The immediately executory letter only applies to this case. LABOR ARBITER
LEVEL.
o When not allowed or not proper:
 Dismissal for cause
 Waiver or lasches ( 4 years is given to claim reinstatement. )
 Principle of strained relation. Cant be applied indiscriminately
 In lieu of reintatement he should be paid separation lay as a form of
compromise to reinstatement
Abolition of position
  He must be reinstatement to substatially equivalent position. If not he should be
paid separation lay as a form of compromise to reinstatement.
Closure of business
 Legally and physically impossible. he shiuld be paid separation lay as a form of
compromise to reinstatement
Tetirement pay, resignation pay
 No reinstatement of OFW seaman, illegally dismissed on the fiduciary relationship
including kasambahay.
Co structive dismjssal is also an illegay dismissal. Reinstatement is required. Constrained
relatio ship in co structive dismissal is not anymore a ground not tk reinstatement.

Payment for illegal dismissal

 Without qualification.
 Cut off date\ full backwages doctrine. If the cause of action is before
march___1999__. Before the rule 3 year backwages without qualification. Today
full backwages without qualifications and deductions
 Award of damages: because of injury to ee of his right to property. Damages to
labor code or civil damages can be awarded by labor arbiter. An award for miral
damages is propwr as dismjssal is against the law of public policy and morals.
o The factual and legal.basis shall be disvussed by the labor arbiter tk the
text of the decision itself. If tgere is no basis tk the award of exemplary
damage no rrason to grant mkram damage as well
o Burden of proof lies to the ee. Wuantum of proof required is substantial
evidence
 Atty’ s fee. Should not excees 10 %. Are this in the form of damagaes? Awarded
to the illegally dismissed and not to the lawyer.
 6 % legal interest pursuant tl BSP circular.
Filing of illegal dismissal
 Filed in Regional arbitration branch
 Technical rules of evidence is relaxrd in labor cases or dispute
 If after preliminary settlement no compromise= each must submit separate
position papers( simultaneous) then relply od each parties.
 Ofw must be decided in 90 days
 Decision immediately exexutory
Requirements for appeal
 Pay docket fee and appeal fee ( not a matter of procedure it’s a jurisdictional
requirement)
 Submission of the memorandum of appeal CF to the prevailing party
 Submission of an answer
o Assuming that CF was not given, is it fatal? No. It is a mere formal lapse
thhag can be satisfied anytime
 Posting of a bond
o Cash or surety bond( must be accreditted by NLRC ) must be issued when
they have standinv authority to issue.
o By waay of exemption: UERM RULING. Sc allowed the postinv of property
bond provided the value of property is substantial to cover the amount.
o Who determines the amount: the law itself the amount of the bond.
Damages and atty fee is excluded in determining the appeal bond
o How much are you going to post? Reasonable amount of the bond. 10% is
not a reasonable for perfecting an appeal. But a 20 % is allowed. 10% is
onky allowed in notice to reduce bond but not on appeal bond.
 If application to refuce was denjed, 10 days is given to post the
proper bond. Mktion to reduce bond always come with the full
amount of the bond.
o Thhe fecision of the LA would be final under doxfrine of immutablity
Consultation
 To prevent one man decision
 Decision in toto affirming decision of LA
 Remedy of parties? File a motion for reconsideration
o A requirement sine qua non for the filing of certiorari
 Raffling day of case
 Documents need to certified must be certified
o Can you file without notice to submit? Yes
 CA: the partiea are required mediation.
 Decision of Ca, file a motio for reconsideration
 Pre execution conference would be held
in the event it is issued to non party. Commented [3]:
Change in the ownership of business; legal effects- where the assets is transferred to the
absorbing corporation, liabilities is also transferred but emoloyees need not be included.
Transfer of stocks of corporation: transfr in stock sales , there is no transfer per se.No
change of heads. Your employees need not be dismissed.

Types of workers:
 Regular:
o performs work which is usualky necessary for the business of er
o Performed job for atleast 1 year
o Mechanic in a auto repair shop: regular? Yes. The entire shop needs repair
because of typhoon. They hired a carpenter. Is he regular? No. Because his
works does not entail the work necessary for the business operation
o But when the carpenter works for a period of 10 years to the business, he
is already a regular
o 5-5-5 doctrine. 5 months hiring then released the hired again. He is regular
as the hiring js considrred together this is successive hiring. Incdications
of regular employee.
 Xpn: an ofw and seaman ( contractual )
 Bret school v zamora : they voluntarily sgreef in fixed term
contractn consensual
 The cobtract terminates by itself:fixed term contract no need
of notice of termination

 Probation requiremnt
o Employer has to evaluate the skills of the ee
o Time when ee will train
o General period : 6 months. Csn they stipulate below 6 moonths or above?
Yes. ( pldt case 18 month probation is valid cobsideratng the nature of the
business
o Case: theh are on peiduxtion of atlmic bond. An ee is hired. The nature of
the job requires extensive training.
o Hiring of teacher. It includes that he should have masteral degree.
o Can he again undergo another probation? No. That is tantamount to double
probation.
 Apprenticeship
o Upo termination, the worker doea not automatically become emoloyee
 o But on case of learner, automatic employee provided he is trained for a
minimum of 3 months
o Any training program should be approved by tesda.
o Apprenticeship contract. No force and effect if it is not approved by tesda.
The legal effect is the apprentice is considered a regular emoloyee as he
performs work necessary for thhe business
Seasonal employment:
 Seasonal because he is employed for a particular season
 When emoloyed from season to season : he is a regular employee
 Are they covered of SSs law. He is purely a casual employee. He is not entitled to
sss coverage.

Project
 Automatic termination after project
 Types : Casual( not oerforming work essential to the nature of the business),
probationary( 6 month period) and non peoject( without regard to speciifc work
pool)

Retirement
 Bilateral act wgere the ee has to diassociate himself to the business
 Component parts of retirement
o 15 days of satary x no. Of service
o 1/12 of 13 month pay
o Is it possible that other benefits would be included? Yes.
 Retirement plan: exceeds benefit provided. Retirement scheme will be followed.
 Can the union agree a retirement rate below the rates providd? Yes. Because the
purpose is to e joy the remaining years of his life.
 If dismissed to just cause: still entitled for retrirement benefits

Prescriptive periods
 Statute of limitations
o Pureply money claims 3 years
o Incremental proceeds 3 years
o Employees compensation 3 gears
o Union funds 3 years
o Criminal cases under labor 3 years
 Xpn
 Large scale 20
 Syndicated 20
 Ulp 1 year
 Social security 4 year
 Illegal dismissal 4 years
 Reinstatement 4 years callanta doxtrine
o Prescriptive of service incentive leave 3 years ( xo sidering the peculiarity
of SIL, time ahoukd start on yhe denial of minetary equivalent od SIL) .
Available even after year of service.
o Full back wages are but a cobsequence of illegal dismissal so 4 years would
aoply
o Sss claims. prescribe in 20 years right to claim
o Gsis. 4 years. Rrtired govt employee, instead of filing his retieement claim,
he went to US. When he decided to return, he filed a clakm kn GSIS whuch
is deneid for prescription. Will the claim prosper? Yes. Because under Gsis
law, retirwment clakm is imprescribtible. (Life and retirement claim is not
prescriptible)