LABOR Prof. Campanilla

Labor Law Reviewer for the Handicapped.
by Atty. Pearlito B. Campanilla

(Good for the 2019 Bar Exam only)
If you suffer any form of handicap like you are a working student or you don’t
have sufficient time to review, then this reviewer might just give you a sporting
chance to pass the bar. Lets go directly to the 2019 syllabus on labor law under. Let
us junk all the other issues not covered by the syllabus. The syllabus starts with the
nature of labor law.
“Labor laws are social legislations. They intend to protect the marginalized
members of the society. They were promulgated in accordance to the principle that
those who have less in life must have more in law. This is known as compassionate
justice. Art. 3 of the Labor Code emphatically declares “ The State assures the right
of workers to SSCC or SC squared., that is security of tenure, self organization,
collective bargaining and conditions of work which are just and humane.
So again, what does the State assure? Answer SSCC.
S-ecurity of tenure
S-elf organization
C-ollective bargaining
C-onditions of work which are just and humane.
“…Article 4 provides. All doubts in the implementation and interpretation of

the Labor Code, including its implementing rules and regulation, shall be resolved
in favor of Labor…”
- In case of doubt, do not make it clear, just apply the law in favor of the
Laborer. And remember the equipoise principle. It says that:
“…If doubts exist between the evidence presented by the employer and the
employee, the scales of justice must be tilted in favor of the latter…” Lepanto G.R.
163210, August 13, 2008…”
Lets go back . When is there employer employee relationship. This answers

questions like a) does the arbiter has jurisdiction? b) is there an illegal dismissal case
c) what are the rights to be granted? d) can the individual join a union?
The Test Doctrines. The control test and the economic dependence test. These
determines employer employee relationship. If there is control, he is an employee.
If there is no control, there is no employer employee relationship. Remember the
WW and the H. This basically is the control test. If the employer is the one telling
the person on:
W-hen to do
W-here to do and
H-ow to do a particular job, then he is controlling him. Thus, he is his
employee.
In Brotherhood Labor Unity case, January 7, 1987, the SC said the employer’s
power to control the employee with respect to the means and methods by which work
Bar reviewer for the handicapped by Atty. Pearlito B. Campanilla. Good for the 2019 bar exam only. 1
is to be accomplished is the most important element to determine if there is employer
employee relationship.
Code of Conduct is not control. Employees Manual is not control. The fact
that the individual is made to sign a Code of Conduct or Employees Manual does
not mean he is an employee.
Code of Conducts refers to how an employee behaves. It is not telling him

when, where and how to do his job.
Guidelines that tells of what the employer wants to be done, the end result, is
not the two WW and the H.
This is the ruling in the Insular Life case Nov. 15, 1989, where the SC ruled
that guidelines that promote results does not create employer employee relationship.
In the Sonza case June 10, 2004, ABS CBN gives Jay Sonza the guidelines for his
program and his airtime schedule. But the guideline refers more to a format or motif
of the show. It does not tell him how to do his job. For how can the owners of ABS
CBN tell Sonza how to do his job when they are just businessmen. However, there
was a caveat on his job that nothing said by him must generate a suit against ABS
CBN. How he do his show, how he appears, what he says, how he sounds like is all
up to him. There is a guideline but no WWH. The Court ruled that there is no
employer employee relationship.
Also, take not that existence of the power to control is all it takes. The
employer need not exercise that power. Its like in illegal possession of firearms. You
need not use it to be liable. In the Lu case 2017, 197899, the Supreme Court said
the control test merely calls for the existence of control and not necessarily the
exercise thereof. The fact that the owner of the ship vessel furnished the ship crew
hand held two way radios means a reservation to exercise control over them. Thus
they are employees of the ship owner I call this the POSSESION doctrine. There is
possession of control although not exercised.
For bus drivers, jeepney drivers or taxi drivers, who are not paid salaries but
in fact are the ones who are paying the vehicle operators what they call boundaries,
it will still be control that determines if they are employees or not. In the Sy vs, CA
(142293 Feb. 27, 2003, the SC in essence declared that
“ ..Drivers that has no freedom where to go and are given instructions on how
to do their functions are employees..”
But, do not be duped again. Sift through the facts. Drivers can be considered
employees or partners depending on whether the operators tell them the means and
method on how to drive the vehicle they are plying. If it is the operator who
determines the routes of their trip, gives them specific instruction on how to clean
the vehicle before they start driving, tell them to drive safely and avoid accidents,
tell them take care of their passengers with utmost diligence and make sure that their
license are valid – then they are considered employees of the operators.
But, if the operator just leave them as they are, not telling them what to do, is just
concerned that they come up with the boundary at the end of the day, then they are
just renters or lessee of the vehicles they are plying.
The other test to determine employer-employee relationship is the economic
dependence test. This to me is the Pera Doctrine. Saan ba siya kumukuha ng pera si
Noy?
Control or lack of control, bullshit. It does not matter if the employer is not
telling the employee on when, where and how to do his job, if that is his only job,
then he is an employee. The economic dependence test equals the control test as an
index to determine existence of employer employee relationship.
Ask yourself, is the employee’s source of income is only his job. Is he not
working elsewhere. 8 to 5 he spends it for his employer. Regardless of the fact that
the employer leaves him as he is and not minding no how he do his job, he is still an
employee.
Specially if the employee agrees on a “non involvement clause” (what the
heck is that?). This means that the employee must not be employed or be an owner
of a business which is in competition with the company where he is engaged.
Remember ANDUB.
A - ctivity
N – ecessary
D – esirable
U – sual
B - usiness
Art. 295 provides: “The provisions of written agreement to the contrary and
notwithstanding and regardless of written agreement of the parties, an employment
shall be deemed to be regular where the employee has been engaged to perform
activities necessary and desirable to the usual business of the employer.
Trash the words Contract, Agreement and Name ( C A N ). Thrash them. C

A N should be Contrary and Notwithstanding Agreements, an individual is a
regular employee if he is doing ANDUB. Necessary means that the job to be done
is needed by the employer. Desirable means that the job to be done is wanted by the
employer.
Needed means that it may result in MUD.
M-onetary damage
U- ndermining of authority
D-isruption of business operation.
Presence or absence of MUD equates to the necessity of the job. Monetary

damage means unrealized income or payment of money to a third party.
Undermining of authority means the job refers to the making of rules and
regulations, disciplining, giving benefits or even firing. Lack of this job means the
authority of the employer will be dampen or diminished. Disruption of operation
means the business or the work stop.
Wanted means just to please the employer.
Necessary and usual = regular

Necessary but not usual = contractual or seasonal
Desirable and usual = regular casual (this is the tenure doctrine)
Desirable but not usual = casual
In San Miguel 125606, the work involves the repairing of the furnace in San
Miguel Glass Plant. Definitely, with a broken furnace, the glass-making business of
San Miguel cannot continue. The SC ruled that the necessity for such work arises
only when a particular furnace reached the end of its life which is about five years
more or less. Without the furnace, no bottles of beer for San Miguel. This equals to
no business and no profit. But the services of the individual is needed only once
every five years. So the job is still not considered regular.
Desirable but not usual = casual
In Capule vs. Yakult, 90653, the Office of the Solicitor-General made the
opinion that cutting grass in the premises of the company is a necessary activity thus
making the employee as regular. Of course, the company has to maintain a beautiful
work environment and certainly a manicured lawn is necessary and desirable for its
usual business. The SC struck down this idea shallow. The cutting of grass is to
totally alien to the business of Yakult Company which is selling healthy beverage
drink. Even if the grass is not cut in their company, their business can still continue.
Thus, the gardeners are deemed casual employees.
Desirable yet usual = regular
The basic difference between regular and non regular employees: MOTHERS
and SUN
Regular employees, in general deserves:
M inimum wage
O vertime pay
T hirteenth month pay
H oliday (regular, special rest) pay
E vening pay
R etirement pay
SILP
and
S eparation pay because they have a secured tenure

Union rights
N otice of dismissal, again because they have a secured tenure.
Non regular employees, in general deserves only MOTHERS.
Q. Who are obligated or liable to grant these rights and benefits?
The company as well as its labor only contractors. They are solidary liable for
these wage and benefits.
In Ramones 122327, the SC ruled that peripheral jobs like performance of

maintenance work or maintenance chores done by maintenance carpenters, painters,
gardeners or electricians can be considered as necessary jobs. In UST 2017 184262,
UST is a schools and its business is education. Their maintenance personnel, whose
job certainly does not involve educating the students of UST. But there job are
considered necessary for the continuous operation of the university.
This is known as the TENURE DOCTRINE.
Magic words: Continuious rehiring may result to regularization.
Regardless of the fact that the task is only desirable, if he is doing it for a long
period of time, then he is a regular employee. These are employees, which by
operation of law, not by reason of the nature of their works are regular employees
owing the length of their stay in the company.How long is the tenure before one can
be considered a regular employee. Note that in here there must cumulative period of
employment that exceed 6 months.Exception to this are project based employment
workers and OFW who cannot be regular regardless of their length of service.
SEASONAL EMPLOYEES – they are employed to do ANDUB but there is

a season for their engagement. Harvest season. Christmas season, New Year season.
Three Kings. Valentine. Summer season, Mothers day, Fathers day, Grandparents,
Enrollment season. Once the season is over, the employers has the right to terminate
them right away.
It can be oral, Art. 1403 of the NCC). But their seasonal employment contract
must be made clear to them.
Seasonal employees are categorized into two by jurisprudence namely

seasonal employees and regular seasonal employees. In Hacienda Fatima 149440
2003, an employee who is employed for more than 1 season is deemed a regular
seasonal employee. Thus, every season that comes assure him to be re-hired. They
are regular to their seasonal task or activities. There will be illegal dismissal if they
are not re-hired once the season sets in.
These employees deserves only their MOTHERS but not the SUN.
But ANDUB or not, Tenure or not, in Project based employment, Contractual

employment or Fixed Term Employment, the employees are still not regular.
In PBE they are doing ANDUB but there is a PCDE. A project the condition
of which was determined at the time of engagement. Thus they are not regular
employees.
For contractual employees there is ANDUB but there is a CCDE, contracts

the condition of which were determined at the time of engagement. They are not
regular employees.
And in Fixed term employment there is a FTDE or a fixes term determined

at the time of engagement. They are also not regular employees.
Lets go back to PBE. These are employees hired for a specific Project the
Completion of which has been Determined at the time of Engagement (PCDE,
remember these magic words). Majority of this type of employment refers to the
construction industry. Projects is synonymous to undertakings, means painting a
wall, erecting a house, constructing a bridge, these are good examples of projects in
a valid project based employment.
Note however, that the project or undertaking must be (SD) Separate and
Distinct from the administrative functions, of the employer. Office jobs cannot be
the subject of a project in a PBE. The magic words in answering the bar is “… the
project must be separate and distinct (SD) from the regular or daily business
operation of the employer. Otherwise, it is clear that he is just manipulating the law
to deprive his employee of their security of tenure. To recap – there are project
employees – just repeat the PCDE. But the P must be SD.
What is the latest on project based employees, Ganzon 2017 214183 – the re
hiring of construction workers on a project based contracts does not confer upon
them regular employment status. Project for more than 1 year… still not regular.
Even if its 100 years.
Issue? Was the employee informed completely of the project? The project ot
undertaking must be made clear to the employee. It must be a specific project or
undertaking. Not a general one. Again in UST 2017 184262 the employee was tasked
to assist in various work: carpentry, electrical and masonry work. The SC said that
a project based contract that assigns an employee to an all around work is invalid.
Since there is an invalid contract, the individual is a regular employee.
Also, in Innodata 2017 211892, an employee tasked to do a specific project

or undertaking but was assigned to do several other works converted him into a
regular employee. The fact that it only happened once is inconsequential.
So a carpenter who is tasked to be a painter is a regular employee.
Q. What is the difference between a project-based from a regular?
These employees deserves only their MOTHERS but not the SUN
Prior notice is not required. The law only requires report to the DOLE 30 days
after. Ganzon 2017 214183. But they can be regular if there is no reporting with the
Dole of the completion of their project 30 days after their completion.
For the three steps in attacking a question regarding PBE.
a. Determine if there is a PBEC.

b. Is it valid? There is a project or undertaking which is separate and distinct
from regular office work or administrative function.
c. There was no other task given to the employee.
d. At the end of the project or undertaking, there was a establishment report
to the DOLE within 30 days from the completion of the project.
Q. What are contractual employees or fixed term employees?
It is not included in the enumeration under Article 295, but it emerged in Brent
48494. Brent employed Doroteo Alegre as an athletic director for 5 years. He was a
known as an excellent coach. He was pirated. He made Brent a proposal. Brent
accepted. When Brent noticed that he was not really good, he was no longer re-hired
after his contract expired. He claims that he is doing ANDUB thus he is a regular
employee. The SC disagree thus recognizing a new category of employee which is
a fixed-term or contractual. Two elements were formulated in Brent for contractual
or fixed-term employee:
1. The conditions of employment knowingly and voluntarily agreed upon at

the time of engagement.
2. No moral dominance by the employer.
But in Pabriga 176419, just like in Brent, the court ruled that a prospective
employee, by reason of high education, experience and skills can actually DEMAND
THE TERMS AND CONDITIONS of his employment. The employee proposes the
terms and conditions of his contract. The employer accepts. Once accepted, the
employee cannot later on impugn the validity of the said contract. The contract is
valid and binding
For easy attack on the bar exam, remember the Moral Dominance Doctrine.
At the time of engagement, who has the moral dominance. Moral Dominance is
synonymous to the Take it or Leave it Doctrine. If it is the employer who tells the
applicant for employment :these are the terms and conditions of your employment
take it or leave it, then Art. 295 kicks in. If it is the other way around, then Brent and
Palabriga kicks in.
Q. Is there a contractual or fixed term among the rank and files?
It can be easily concluded that there can be no fixed-term employment in so

far as rank-and-file. Fixed-term applies to professionals – lawyers, engineers,
doctors, athletic directors – who are on equal footing with the employer. As
to who possess moral dominance is the key on whether or not to apply Art. 295.
The exception to this and OFWs who is said to be legally impossible to

become regular employees.
Regardless, CE or FTE are still entitled MOTHERS. But since they are not
regular, they are not entitled to the SUN.
What about repeated hiring for professionals. Can the Tenure Doctrine apply?
Lets talk about the La Salle case.
In Samonte vs La Salle Grennhills (2016 199683). Medical professional. Had

a contract. Contract was renewed yearly for 15 years. Then it was no longer renewed.
They filed a case before the NLRC for illegal dismissal.
The decision say that although the complainants are medical professionals
they are not deemed CE or FTE for the following reasons:
1. There was no negotiation in the renewal of their contracts. (Contract of

Adhesion).
2. The complainants were not in the position to negotiate on a take it or leave
on their part for fear that they will lose their job which they held on for 15
years.
In this, due to the length of time that the complainants are working in La Salle
makes them economically dependent on the latter that the presence of Moral
Dominance is situated with La Salle and not with the complainants.
Further:
There was reservation on physical control by La Salle on how and when the
complainants will do their jobs, the Supreme Court in the said case noted that – “…
while vague in its sparseness, the Retainer Contract very clearly spelled out that
Lasalle had the power of control over the medical personnel…”So lack of Moral
Dominance coupled with the power of control on the means and the method to do
the job will most likely means that the employee is a regular employee.
Will it matter that control was merely possessed but not exercised?
The Court ruled :
“… Time and again we have held that the power of control refers to the
existence of the power and not necessarily to the actual exercise thereof.. It is
enough that the employer has the right to wield that power...’
So how do you attack questions in the Bar concerning CE or FTE.
1. Determine where Moral Dominance is situated.

2. Was there just a contract of adhesion.
3. Account economic dependence.
4. Account also the power of control.
CE or FTE gets MOTHERS but not the SUN
Lets go to probationary”
Q. What are the elements of a probationary contract?

1. There is a contract which provides for standards.
2. The standards were made known to the applicant.
An invalid PC does not mean that the employees is not an employee. It means
that he is regular.
What is the difference between a PE (probationary) and a RE (regular)?
a. The security of tenure of PE is only up to the extent of his probationary

period. The security of tenure of a RE has no period.
b. A PE can be terminated by just cause, authorized cause or by failed
evaluation. A RE can be terminated only with just cause and authorized
cause.
So it is no correct to say that a PE has no security of tenure. They have but
only up to the extent of their PC.
What is the period in a probationary contract?
That provided in the contract which must not be more than 6 months.
If the PC says it is 3 months, then it is 3 months. If it says it is 7 months, then

it is 6 months. The law says that it must not be more than 6 months.What if the
contract does not provide for the period? Will it be 6 months. NO. The contract is
invalid. If the contract does not provide for a period, the employee is regular. (ATCI
143949).
Q. How to compute the six months period? Cals Poultry which says that
probationary period is 6 months (not 180 days) was cited in Philippine Spring Water
205278, 2014. The Court deemed it more convenient for the employee to count the
months and not the days. Counting the days means literally counting all the days
that the employee has been present. Not to mention the need to exclude the holidays
and the days were work are cancelled due to inclement weather. Thus the ruling in
Philippine Spring Waters that you count the months and not the days.
The probationary period is actually the period needed to determine the fitness
for the job. Fitness means employees fitness based on ability, behavior, competence.
ABC. Ability means presence of good skills. Behaviour means presence of good
attitude. Competence means presence of good knowledge. All or any of this factors
can be used for failed evaluation.
Q. Once a probationary period is determined, can it be shortened or extended?

Shortened – Yes if the intention is to make the employee a regular employee
in a much shorter time. This is fine.
No, if the intention is to deprive the employee of more time to prepare himself
for evaluation thus diminishing his opportunity to become a regular employee. Let
us say that the period is 6 months. Then the employee has 6 months to upgrade his
ability, behavior and competence. This will give him a better chance to be a regular
employee. But let us say that the employer wants to shorten the probationary period
to 3 months. Then the answer will depend on the intension. If the intension is to
make him a regular right away, no problem. But if it is to weed him out, then this
may be a case of constructive dismissal.
Note that it is a consistent ruling that Evaluation must be in good faith.
In Cebu Maine Beach 143252, 2003, the employees were scolded, hurled with
brooms and other items and were then made to go home. They were told, proby lang
kayo, isang evaluation lang tapos na kayo. True enough, they were evaluated and
dismissed due to failure to meet the standards of a regular employees. The S.C. then
held that the evaluation was not made in bad faith. It was not fairly made. It was
farcical. Moro moro lang. Their dismissal was deemed illegal
In Manila Hotel, 53453, a probationary employee who was flunked in the

evaluation after just being promoted was said to have been evaluated impartially.
The evaluation was be made fairly. Objective and not subjective. If there are just
cause to kick out the employee, then he should be given due process. The
probationary contract must not be utilized to expedite his dismissal.
To summarize, a shortened probationary period may result to a pre-mature

evaluation. Good if the result is positive. The employee benefits for he becomes a
regular employee. If the evaluation is negative and the employee is dismissed. The
dismissal is illegal for it goes against the basic rule that evaluation must be in good
faith. Evaluation must be in good faith.
In this connection, when must the evaluation be had?

Ideally, it must be on the day before the probationary period ends. Otherwise,
if the period ends without an evaluation, that means that the employee is converted
into regular employee.
But can the employer evaluates much sooner? Say that the PE is 6 months,
can he make an evaluation on the first month?
I would say that the same will deprive the opportunity for the employee to
upgrade himself and thus diminish his chance to become a regular employee. This
thus not mean that the employer must wait for the eve of the probationary period to
terminate an inefficient, an unruly or an incompetent employee. Kung mahina,
bastos o bugok, must the employee wait for the eve of the probationary period to
evaluate. This will go against that basic principle that while the law protects an
employee, it does not authorize the oppression nor the self destruction of the
employer. The law does not really say when the evaluation must be had. It only say
that evaluation must be in good faith. Good faith means waiting for the eve of the
termination of the probationary period before the evaluation. Otherwise, you are
using the probationary contract to discipline or penalize an employee by dismissal
when what it is intended to do is only to determine his fitness to become a regular
employee. If the employee is inefficient, unruly or incompetent, then you can
dismiss him, not by a failed evaluation, but by using just cause and due process.
Going back, once a probationary period is determined, can it be extended?
Ask yourself, at whose instance is the extension being made?
At the instance of the employer: Generally no. A big no. A PC cannot exceed
six months and a PE becomes a regular employee if he exceeds 6 months of
employment. Exception: When there is a reservation in the PC that the probationary
period of six months can be extended because: the nature of works demands it or it
is based on an established company policy. The SC cites Buisan 63316 - where 18
months was deemed necessary to determine the selling capabilities of sales
representative selling advertisements in PLDT directories. The company may
provide in the PC that the period may be extended for technical or difficult works
which may need much longer probationary period. Teaching for example have a
valid probationary period of 3 years.
If it is not a company policy or the nature of the job is not technical or difficult,
then even if the PC says that the period can be extended, it will not be extended for
the law says that PE must not exceed 6 months.
What if it is the employee who appears to be stupid enough to be asking for

an extension of his probationary period? This should not be tolerated for obviously
the extension is being made at the behest or order of the employer.
But when an employee is asking for one more chance. In Mariwasa 74246,
1989 – an employee who failed to become a regular asked for an extension of 3
months which the company gave as an act a liberality. The extension was deemed as
valid by the S.C.
So the rule is, before an evaluation, no extension. After a failed evaluation,

there can be.
Q. What is the common issue on probies?
Is the criteria for regularization made known to the employee at the time of
his engagement. Most probationary contract has this deficiency. No criteria means
the employee is regular. How can an individual prove he is worthy of being a regular
employee if is not aware of the criteria. He cannot expect to read the minds of his
employer. Do you want him to be efficient, courteous, team player, honest, well
groomed. You have to tell him what is on your mind. Employer’s standard must be
clear in the contract.
The exception to this are self-descriptive jobs, i.e., cook, maid, driver,
messenger, etc. in Robinson 177937, 2011, the SC ruled that the standards of the job
are of common knowledge and by common sense, that they did not be spelled out.
What happens to a probationary employee when he is dismissed?
Determine the dismissal. If through a valid cause and due process, he is

terminated for good. If through an invalid cause, he is paid backwages and must be
reinstated to finish his probationary period. Note to finish only the probationary
period. An illegal dismissal of a probationary employee does not make him a regular
employee. His security of tenure is to the extent only of his probationary period. If
there is strained relation, he gets a separation pay of 1 month salary.
If the termination is through a valid evaluation, he is terminated for good.
If through an invalid evaluation, example: evaluation made in bad faith, to

quash a union, to discipline, evaluation which are acts of reprisal, the net result is
that the PE is converted into a regular employee by an evaluation made in bad
faith.These employees deserves only their MOTHERS but not the SUN
Lets go to the other type employees, the managers, the supervisors, the
confidentials, the supervisors who are also confidentials and the managerial staffs
who are also confidentials.
How can you easily distinguished a supervisor from a manager. A supervisor

is the one who WWH. He tells the workers when, where and how to do their jobs.
A manager is one who gives benefits, who fires, who hires, who makes rules
and regulations and who discipline. BF ko HRD (Boylet ko yung HRD).
To repeat, for easy memory access:
A manager is a person who:
Gives B enefits
Who F ires or H ires
Makes Rules and Regulations for the employees to follow
Who D isciplines
The rules and regulations made by the manager are then implemented by the
supervisor. But a supervisor does not fire, discipline or gives benefits. He just
recommends them. Managerial employees as defined in Art. 82 was cut clear by the
case of Lagahit January 13, 2016. The fundamental issue here is the distinction
between a manager and a supervisor. Lagahit is a sales manager. Note the phrase
SALES MANAGER. The problem is although she was called a sales manager, her
job essentially was just to sell the company product. Why was Lagahit dismissed?
Breach of trust and confidence. She was found to be applying for employment with
another company which is a competitor. She in fact was doing sideline with another
competitor. There are two issues here. One is, is she guilty of breach of trust? Is
Lagahit a type manager that can be held guilty of breach of trust.
Here the Supreme Court discussed the employees that can be dismissed by
reason of breach of trust.
a. The managers.
b. The confidentials
c. If supervisors are also confidentials – then they can also be dismissed by
d. If managerial staffs are also confidentials – they can also be dismissed by
There are two classes of employees vested with trust and confidence and can
be guilty of breach of trust. To the first class belong the managerial employees or
those vested with the powers or prerogatives to lay down management policies and
to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees
or effectively recommend such managerial actions.
The second class includes those who in the normal and routine exercise of
their functions regularly handle significant amounts of money or property. Cashiers,
auditors, and property custodians are some of the employees in the second class.
The third refers to managerial staff or supervisors who may be also vested
with trust and confidence.
The magic words here is vested with trust and confidence.
Lagahit was called a sales manager. But is she a manager that can be fired
because of breach of trust. Let is us look at her duties and function.
No where is it found that she hires and fire, impose discipline, gives benefits
or formulate policies.
“… Her employment as sales manager was directly related with the

sales of cargo forwarding services of Pacific Concord, and had nothing to do
with the implementation of the management's rules and policies on its
personnel and staff. She may be called a manager but she is not that kind of
manager contemplated by law that is reposed with trust and confidence…”
Bar reviewer for the handicapped by Atty. Pearlito B. Campanilla. Good for the 2019 bar exam only.
Rule: Manager manages PEOPLE. You maybe a store manager but you are
just a freaking ice cream sales man. Lesson: you may be hired as a warehouse
manager of a complex and gargantuan warehouse and yet at the end of the discussion
you are just a freaking warehouse security guard. Managers manage people.
Remember Lagahit.
Managerial Staff – 79% rank and file, 21 assist managers and owners. You
can see them easy because most of the time they are college graduates or well
educated. (See Rule I Sec. 2 of the IRR). Sila yung mga quasi managers. Assistant
manager, assistant to the manager. Yung langaw na naka patong sa kalabaw. Their
duties are related to assist the manager in BF HRD.
A supervisor is part of managerial staff. This was the ruling in National Sugar
March 24, 1993. But this supervisors refers to those who assist managers in BF HRD.
Had they only been doing WWH, they are not suppose to be dismissed by breach of
trust. To repeat, a supervisor does not fire, discipline or gives benefits. He just
recommends them. If a supervisor is doing BF HRD, then he is a manager regardless
that he is also the one who WWWH. Ang tawag sa kanya manager cum supervisor.
Lets go to the other coverage in the Bar Bulletin.
Q. What is the basic principle on worker’s rights and benefits?
GRANT IT!
Art. 3 of the Labor Code provides “… the State assures the right of workers
to SSCC. Security of tenure, self organization, collective bargaining and conditions
of work which are just and humane. The magic words:
Just and Humane Conditions of Work
It will be unjust and inhumane if workers work and you do not pay them. Or
give overtime pay. Or holiday pay. Or rest day pay.
Art. 2 Sec 18 of the Constitution says “… The State affirms labor as a primary
social economic force. It shall protect the rights of workers and promote their
welfare. Promoting their welfare means granting their rights and benefits.
To repeat Art. 4 of the Labor Code, it states that all doubts in the
implementation and interpretation of the Labor Code shall be resolved in favor of
the working man. This is known as “compassionate justice” which entails
disregarding rigid rules and giving due weight to equity. Labor, by reason of its
economic dependence upon capital, is deemed the weaker of the two and needs the
protection of the state. Without such protection, workers are easy objects of
exploitation.
So the basic principle about rights and benefits is GRANT IT.
- In case of doubt, GRANT IT.

- Even if the employer do not have the capacity to pay, in the verge
of bankruptcy or suffering from financial loses, GRANT IT.
- Even if the employer is a charitable, religious non-profit
organization, GRANT IT.
- Even if the employee is lacking some requirement, GRANT IT in
the interest of compassionate justice. Eastern Shipping April 7,
2006.
Of course, the individual is not entitled to this GRANT IT principle if he is

just a volunteer in a charitable or social organization. He is estooped by allowing
himself to be engaged as a volunteer. In all other cases, GRANT IT.
Q. What are generally covered by the GRANT IT principle?
Remember HOMES mean:
1. Holiday (regular, special, rest day) pay.

2. Overtime pay.
3. Meal period benefits.
4. Evening benefits or NSD.
5. Service Incentive Leave pay.
Q. Are there exceptions:
The exception is if the person involved is not a covered employee. My

mnemonic for this is GMFDR ( Give Me Freedom or Death Results).
a. G - overnment employees including GOCC

b. M - anagers and Managerial Staff
c. F - ield workers and F - amily members dependent on the
employer for support.
d. D - omestic or personal servants
e. R – esult paid workers or piece rate workers.
Government employees are not entitled to rights and benefits under the labor
code. They are covered by the Civil Service Law. Even Government Owned and
Controlled Corporation employees are covered by the Civil Service Law if the
GOCC was created by a charter or a special law. Essentially their employees are
government employees. But for GOCC which has no charter, their employees are
considered private employees. Say the government bought stocks from SM thus
making it in control. The employees in SM are still private employees. For quick
memory access remember: Public GOCC contrast a Private GOCC.
Managers or individuals who do BF HRD. They have higher compensation

and benefit package. They are not earning minimum wage. Unless it is a company
policy, they are not entitled to HOMES.
1. Holiday (regular, special, rest day) pay.

2. Overtime pay.
3. Meal period benefits.
4. Evening benefits or NSD.
5. Service Incentive Leave pay.
Managerial Staff – 79% rank and file, 21% assist managers and owners. You
can see them easy because most of the time they are college graduates or well
educated. (See Rule I Sec. 2 of the IRR). Sila yung mga quasi managers. Assistant
manager, assistant to the manager. Yung langaw na naka patong sa kalabaw.
Field workers, yung nag tratrabaho sa labas ng office. Not necessarily sa

bukid.
Messengers, liason officers, field sales agent. The key element is here is
whether or not the employer can track if they are working or not. A bus driver is not
a field worker. From point A to B, his work is track by the employer through a
dispatcher and an inspector. His route his pre-determined. But a taxi driver is not.
Once he leaves the garage, the operator has no way of knowing if he is driving or
just sleeping under a tree.
Domestic or Personal servants – personal service where the service is usually

done at home or for personal comfort. Personal convenience of the employer is the
key element here. They are covered by the Kasambahay Law which will be discussed
later.
Workers paid by result – must be those covered by a piece work order issued
by the DOLE after inspection and after conducting a time and motion study. The
piece work order is very important. Although denominated as a piece rate worker, if
there is no piece rate order, still the individual is entitled to HOMES.
Lets talk about compensable hours?
HOURS OF WORK
Article 83 says that normal hours of work which is 8 hours a day. Once an
employer engages an employee, he pays him for 8 hours even if he requires to make
him work for less. The 8 hours under Article 83 cannot be shortened. It can be
shortened only if agreed upon by the employee, meaning that the employee agrees
to work less than 8 hours and be paid less than the salary for 8 hours work. Say the
employer tells the employee “today you only work 7 hours and be paid for only 7
hours. This is illegal without the agreement of the employee for this means less
salary for him. This is the ruling in Tanguiling, L-9144.
On another point, normal working hours in a week is 40 hours or Monday to

Friday. The issue is: If an employee works for 48 hours a week, is he entitled to
additional pay? For this, remember the 3 kinds of employees namely:
1. Non-health personnel (NHP)

2. Health Personnel (HP1) working in a city or municipality (C/M)
with less than 1 million people or in a hospital or clinic with less
than 100 beds. (HP1)
3. HP (HP2) in C/M with 1 million people in H/C with 100 beds (HP2)
For NHP, their normal working hours is 48 hours a week. The same rule
applies for HP1. But a different rule applies to HP2. For HP2, the forty hours a week
rule applies. For HP2’s work on the 6th day, he must be compensated with an
additional 30% an hour. To simplify, only health personnel who works in hospitals
or clinics with 100 beds or within a city or municipality with more than 1 million
people deserves premium pay of 30% more for 48 hours of work in a week.
Let’s go to Article 84, Hours Worked.
Q. What are the basic principles behind hours worked?
You take it, pay for it.
Here the basic principle is the employer gets the time of the employee because
of MARL. My mnemonics for hours work..
MARL IS THE KEY.
- he is not free to Make use of his time effectively and

gainfully for his own purpose.
- it is the employer who Absolute control over his time.
- the employer may at any time Require him to work.

- or simply he cannot Leave his place of work.
Examples:
a. Time at the office.

b. Emergency work that redounded to the benefit of the employer,
provided it was known to the employer on supervisor.
If there is a fortuitous event, storm, earthquake, flood then remedial
work by the employee must be paid.
c. When the employee cannot leave because there is no replacement
provided.
Security guard waiting for a reliever.
d. Idle time by reason of circumstances beyond the control of the
employee.
Construction worker who ran out of construction materials.
e. On call time
Where the employee can be called anytime as he was ordered to
leave his contact number.
f. Travel time to go to or from an assignment minus his usual travel
time to and from his home.
Additional paid hours:
Rest period – 15 minutes coffee break in the morning and afternoon.

What if he did not rest? What if he did sideline work? Rest period
are paid hours regardless of how the employees used it.
Let’s go to Art. 85, which is meal period. Core issue involved in meal period?
The core issue here is the obligation of the employer to give the employee a
just and humane work condition. The law requires him to provide the employee a
meal period of 1 hour a day. This 1 hour meal period is not paid.
Q: Can meal period be shortened?
a) not less than 20 minutes.
b) the operation of company does not exceed 16 hours a day.
c) there is an emergency and the reduction is needed to prevent serious losses.
d) the meal period becomes paid.
Q. Can meal period be less than 20 mins? Prohibited by law. Unless the
customary meal period of less than 20 minutes is treated as a rest period or coffee
break under Sec. 7 of the IRR with the net effect of obligating the employer to
provide another unpaid meal period. This means:
a) meal period is less than 20 minutes.
b) meal period is paid at the rate equivalent to 1 hour of work.
c) the employee is given another 1 hour period within the day to take his meal.
Note, that regardless of the fact that the employer is willing to give the
employee another meal period within the day does not mean he will not be given a
meal period of less than 20 minutes. The employee still has to be given time to eat.
The phrase is “to give him another meal period” not “to substitute his meal period”.
Q. Is attendance in seminar, meeting and lecture programs for career

development considered worked hours?
a. Ordered but beyond the normal working hours of the employee (whether
inside or outside the company)- Not paid.
See Section 6 of the IRR. The logic for this is that the affair is actually for the
professional development of the employee. Example is if the company hosts a
seminar for professional development of the employee after office hour, he is not
paid.
b. Ordered and coincide with his normal work hours (whether inside or
outside of the company) – Paid.
Even if it is for his professional development, an employee’s salary cannot

be curtailed.
Q. Is travel time on outside of office assignments considered worked hours?
a. If it coincides with normal working (8 to 5), it is paid.
b. Travel time beyond his normal working hours is paid. But his usual travel
time from and for home should be deducted. If he goes to the province on an
assignment and left his house early, say 4 am, he starts to be paid by 4 am minus
his usual travel time from home to office. Assuming that his start of work is 8am
and his usual travelling time is 1 hour. The employee thus should not be ordered to
leave early. If he is ordered to leave early, then he can asked for additional pay. Also,
if travel time going back to his house is more than his usual travel time, he can
demand for additional pay. Again the issue here is MA of MARL - he is not free to
make use of his time effectively and gainfully for his own purpose or it is the
employer who absolute control over his time.
Lets go to overtime?
OVERTIME
Again, the issue on overtime is the obligation of the employer to give the
employee just and humane conditions of work. Man are not machines. They have to
rest. Work beyond the normal working hours is frowned upon by the law. Overtime
should be imposed only for compelling reasons.
What are the compelling reason? Art. 89, prevention of losses of life property
due to fortuitous events, prevention of losses to the employer, continuation of work
to prevent operation disruption.
Q: Is overtime obligatory? If the employee disagrees, can he be charged of

insubordination? The employee can disagree if there is no compelling reason to do
overtime.
Overtime must either be OAC ---- O rdered, A pproved or C onfirmed.
But of course overtime payment means there must be work done. Not because
they just stayed in the office after 5 pm. If they applied for overtime to clean my
room, I still will not pay overtime if the room was not clean in the morning.
-General rule: if it exceed 8 hours, then there is overtime.
Exemption: if it is company practice that the employee works less than 8 (say
6) but still is paid for 8 hours, then the additional work after 6 hours is overtime.
Q. Who bears the burden of proving overtime work?
The employee bears the burden. Pigcaulan 173648. In the absence of any
concrete proof that additional service beyond the normal working hours has been
rendered, the employee does not get overtime. Or at least the Labor Arbiter will not
give him overtime. Overtime are not normal business transactions thus it is the
obligation of the employee to:
a) Prove that his overtime was OAC

b. Prove that he stayed in the office beyond 8 hours by the submission of his
time card, DTR or other proof. But remember Ocedena Jan. 13, 2003
declared in essence that the DTR are not substantial evidence to prove
worked hours especially if they disclosed exactly the same time that the
employee arrived at the same time that he left. The very uniformity or the
constant time of going in and going out of the company are are badges of
untruthfulness. There must be variance. Otherwise, parol evidence is
needed.
c. Prove that he indeed completed the work in connection with the overtime.
Q. Who bears the burden of proving undertime work?
Prangan, April 15, 1998 “it is the employer who bears the burden of proving
that the employee did not worked for 8 hours.
Exceptions: GMFDR or that the employee has not yet been employed for 30
days (IRR).
The usual question in the bar would try to lure the examinee that the employee
is not entitled to overtime by designating him as manager or managerial staff. Rule:
Do not rely on designation. Discuss BF HRD.
Q: Will promotion into a managerial position stops overtime benefit? National

Sugar 101761 “.. By virtue of their promotion to managerial staff, they ceased to
entitled to the benefits given to rank and file workers. If they wanted to continue
their benefits, they should have rejected the promotion.
Q. Can overtime be waived? Yes in consideration of benefits or privilege that

exceed overtime pay, ex. compressed work week under Department Advisory no. 02
Series of 2004 where workers are allowed to work for only 5 days a week instead of
6 days a week provided they work for 9 hours a day. The additional 5 hours of work
dispenses their obligation to work for the 6th day where they are required to do 8
hours.
Conditions: a.) the employee agreed – thus the waiver; b.) work must not
exceed 12 hours.
NSD (Evening Pay)
If the employee work from 10 P.M. to 6 A.M. (grave yard) he gets 10 % as

NSD. Exception is GMFDR. Additional exception is an employer in retail and
service establishment with not more than 5 employees.
Retail means – selling product to end user. Contrast this to wholesale where
the product is sold to retailers.
Service means - selling service. (TV or watch repair shop).
This does not include travel agencies and exercise of profession (217
Alcantara). Also companies with several outlets or branches are not included. (Ibid).
If the employer has several outlets or branches, you count all the employees of the
company and not per branch or outlet.
HOLIDAY PAY – REGULAR
Exception GMFDR. Additional exception: Retail or service establishments of

not less than 10 Additional exceptions: teachers on sem breaks are not paid regular
holiday pay except Christmas day. Additional exceptions: seasonal employees are
not paid regular holiday pay on off season.
Q: Are monthly paid employees covered by regular holiday pay? Yes. Odango
June 10, 2004. Compute their daily rate. This will serve as the basis for the
Regular Holiday Pay.
- A double regular holiday, eg. Araw ng Kagitingan and Maundy Thursday
200% - if worked, 400%
- If the regular holiday falls on a Sunday 100% if Sunday is not the rest day.
Regular holiday + rest day 200% + 30%
- Overtime on a regular holiday is not 25% but 30%
Q. What is the “prior day absence rule”?
If you are absent a day prior to the regular holiday, then you do not get
paid holiday benefits unless you are on leave with pay on that prior day. (Sec.
6 Rule IV of IRR) . Or the company is close not because of the fault of the
employee.(Sec. 7)
Regular holidays (10 days) are normally given by the labor arbiters even
without proof by the complainant. Again, this is an exception to the rule in evidence
that he who alleges must prove his allegation. The reason is because no work on a
regular holiday is considered an NBA. Normal business activity means the burden
of proof is on the part of the employer to prove that the employee is not entitled to
the benefit of regular holiday pay. But if the employer wishes to avail of the benefit
of the prior day absence rule it is the employer who must present the DTR to prove
that the employee was not present a day before the holiday or on the holiday itself.
REST DAYS AND SPECIAL DAYS + 30%
If the worker is made to work on a special day or on his rest day, he is paid
premium pay.The rule on rest day is also the rule on special days. Special days were
formerly known as Special Holidays. Rest days does not necessarily mean to be a
Sunday. It will only be a Sunday, if no regular rest day was fixed.
Q: Who picks the rest day? The employer, under his management prerogative.
Q: Can the employee objects to this? As a general rule, No. But on religious
grounds, Yes. Take the case of the 7th day Adventist who prefers Saturday as their
rest day. The employee must object 7 days prior.
Q: If the employee validly objects, who prevail? Both the employer and
employee prevails. The Employer will be given 2 days in a month to choose, while
the employee will be left with the other 2. Rule III, Sec. 4 of the IRR.
Q: How should the rest day notice be given?
 Posting – if the rest day covers all employers.

 Personal notice – if the rest day is individualized.
Q: If a rest day was pre-scheduled, can the employer compel the employer to
work? No, unless if there is a compelling reason. Fortuitous event and
machine maintenance to prevent losses.
Exceptions: GMFDR
Prior day absence rule does not apply. The SC says that attendance on a
special holiday are not considered normal activity. Thus, the employee’s presence
must be prove by them.
SERVICE INCENTIVE LEAVE
Q. Is it compulsory for employers to give VL or SL?
No unless it is company practice or contained in a CBA. All the employer is

bound to give is SILP if the employee is already 1 year in service. SILP is
commutable to cash. It is convertible and cumulative. Meaning if not given by
the employer within the year, it is passed on in the succeeding year. This is the
reason why SILP has a special prescriptive period. It still prescribe for 3 years
but the 3 years starts to run only when the employee demands that he be paid
SILP or when he resign or is separated.
Assuming that the employee is not paid SILP since 2009. That means his SILP
cumulates and since the year today is 2019, he already has a total of 50 days SILP
or 5 days SILP per year of service.
Again on prescriptive period:?
The 3 years prescriptive period run only when a) he demand its payment or b)
when it was not yet paid and he resigns or is separated. Autobus 156367, if the
employee does not use or commute his SILP, he is entitled upon his resignation
or separation from work to the commutation of his accrued service incentive
leave.
Exception GFFDR. Additional exceptions: Employer in retail or service

establishment with less than 10 employees.
Q. When is an employer not bound to give SILP?
If he is already SL, VL or an equivalent benefit of more than 5 days.
Q. How do you compute the 12 months of service to make an employee

entitled to SILP.
In computing the 1 year period, do not use the Cebu Royal. Determine if the
employee worked for 365 Continues or broken. The counting of the days should
include authorized leave of absences and regular holidays. No specific law. But in
case of doubt Grant It.
This includes contractual employees. Art. 95 says all employees except

GMFDR. So the answer is yes if the employee rendered 1 years of service, whether
continuous or broken, Grant It.
SILP are given just like the 13th month which is before the 24th of December
unless the employee used the SILP benefit within the year.
MINIMUM WAGE
Q. What are the exceptions to the minimum wage law?
a. Domestic helpers or personal service providers, they are covered by the
Kasambahay Law.
b. Employees under BAMBE (3 m capital) They are covered by the Barangay

Micro Business Enterprise Law.
c. Distressed business, new businesses, retail/service businesses with less than

than 10 employees and businesses that got hit by natural calamities.
d. Apprentice and Learners.
Note that in b,c and d, some authorities say that the exemption is not automatic.
The employer must apply and must be given DOLE exemptions. In case of doubt,
Grant it.
Q. Are employers with piece rate workers exempted?
No. Their workers must still have salaries that correspond to the minimum
wage. The DOLE will ensure this through a piece rate order imposed after a time
and motion study. If the company does not apply for a piece rate order, then it must
ensure compliance with the minimum wage law.
Q. What is the penalty for violating the minimum wage law?
a. Fine of 25 k or 2 years imprisonment with no probation.
b. Double indemnity or pay double of the salary differentials.
Here there must be a final finding by the Labor Arbiter that there was a
violation of the Minimum Wage Law. Unless, the employee only filed a criminal
case, the decision in the labor case takes precedence.
Q. What rate applies to mobile workers or those under temporary assignments?
For workers that is assigned temporarily to different regions, the rate at the
place of hire or main office of the company. But it can also depends on the
length of the assignment. Say the assignment is for a lengthy period of time,
30 days, then the wage should be the adjusted so as not to prejudice the
employee. If an employee hired in Cotabato was assigned in Manila for 30
days, he should get the Minimum Wage in Manila for that period.
Compassionate justice. Just and humane conditions of work. These are the
arguments that can be used in this regard.
Q. What rate applies to branch workers?
The rate where he is hired or where he was assigned, whichever is higher.

Branch workers are different from mobile or temporarily assigned workers. Their
assignment is permanent in nature thus giving them the right to the higher minimum
wage.
Q. What is the rule on non -intervention in disposal of wages?
Art. 117 – Wage deductions can be had only: for DELUTI
Debts or deductions: D amaged tools or equiptment.
E mployer, may be a loan or cash advance.
L aw, required by law i.e. SSS etc.
U nion dues.
For third persons i.e. creditors. With consent.
I nsurance premiums.
a. Demandable debts to the employer ( 1706, Civil Code)

b. Debts to third person upon written authorization of the employee. (IRR,
Book III, Rule VIII, Sec. 13)
c. Deduction for loss or damage tools (Art. 114), materials or equipment.
d. Deductions required by law. (SSS, Cooperative, etc.)
e. Insurance premium advance by the employer and union dues.
Unlawful acts in regard wages:
1. For uniforms or other employees tools or equipments.

2. Cash deposit for lost or damages (except for security).
3. Training fees. Exception: Valid if the employee executes a written
undertaking that the amount the employer spent training him can be partly
deducted from his last salary if he fails to stay in the company at an agreed
period of time. The deduction can be had on his last salary.
There are other allowable deductions. These are the basics.
Q. May board and lodging be deducted from the worker’s salary?
Determine if the apartment and the food is being given as a supplement to the
benefits of the employee. If it is a supplement, the cost of the apartment and the food
should not be deducted. Usually supplement is given for it benefits the employer.
A lab technician who stays in a hospital and eat in its canteen is said to be
receiving a supplement. Since he is on a waiting time and his waiting inside the
hospital is necessary for its operation, the value of his board and lodging should not
be deducted from his wage. Doing so may result in the non-payment of his correct
minimum wage. This holds true for the nurse, medtech, pharmacist and doctors.
Their non-leaving the hospital is essential for its operation. Even construction
workers are given supplement for an employer benefits when the workers are in the
work premises so that deadlines can be met.
But sometime, the employer provides for apartments and foods and offers the
same to the employees on a voluntary basis. He does not impose that the employees
take them for he does not get additional benefits therefrom. This is known as a
facility.
Secretaries, clerk, receptionist and other admin personnel, whose overnight

stay in the company is not at all necessary for its business may avail of these board
and lodging. Board and lodging that is offered to them may be deducted from their
wage without violating the minimum wage law. Provided:
1. The deduction was agreed by the employee in writing

2. The value of the facility is fair and reasonable. (Mabeza, April 18,
1997).
3. There must be an approved facility as inspected by the DOLE. Hindi
puwede yung tulugan ng hayop.
Q. Is the the usual practice of employer of deducting because the employee is late
legal?
The employer may invoke the “no work, no pay rule”. But that will violate
due process. Tardiness should be processed by giving the employee NTE. Then the
commensurate penalty. Deduction should not be automatic.
Q. How must wage be paid?
Art. 102 – Wages should be put in cash regardless of the request of the
employee. It must be paid at the place of work. Twice a week with the interval of 15
days.
Q. Can wages be paid by bank check?
Check payments or money orders are allowed under a labor advisory dated
Nov. 5, 1996. Provided that it is a company practice before effectivity 0f the Labor
Code or a stipulation in the CBA. Provided further:
1. Bank within 1 kilometer.

2. No benefit to employer.
3. Paid time given the employee to encash check.
4. Writtent consent by employee.
Note that payment of wages by legal tender cannot be waived. It must always
be by legal tender.
Q. What are the rules on non-diminution of wage or benefit? Means that wage
or benefit given to employees can no longer be unilaterally taken back or reduced
by the employer. Art. 100. Thus, I do not treat my employees free lunch anymore.
Sometimes I do. But intermittently. Once free lunch becomes customary, then it
becomes an entitlement.
Q. Rule on company practice to be considered in applying the non-diminution

principle?
a) There must be substantial evidence that the giving is

done over a long period of time.
b) It should be consistent and deliberate Coseteng
155938.
Means there was a deliberate intention give the

benefits. If the free lunch was not intentional, was
given because there were visitors to impress them, but
was given daily for a month, still this is not company
practice.
Q: Can a benefit given be taken back by the employer?
Yes on two instances. First, if the employee freely and voluntarily consented
to the taking back. Insular Hotel, Sept. 22, 2010 – where it was the employees who
proposed the reduction to prevent the closure of the company. Second, when the
giving was due to an error in the interpretation of a doubtful or difficult question of
law. The correction must be done soon. (Alcantara page 87)
Q: Bonus, if being given, is it demandable?
There are 3 kinds of bonus:
First, that given as part of the wage. This cannot be taken back without
violating the non-diminution rule.
Second, that given in return of the greater success of the company such
as high income, high output, high profit, high production. This cannot be demanded
by the employee unless the condition precedent is present. This is known as
conditional bonus. (Atok BIG Wedge, March 3, 1953)
Third, bonus in the form of Christmas party and raffle. American Wire,
April 29, 2005, the SC ruled that they are given owing the owner’s generosity and
therefore cannot be demanded as part of the wage.
Q. Who is obligated or liable to grant these rights and benefits?
The company as well as its LOC are solidary liable for wages.
13TH MONTH PAY
1/12th of the total basic salary earned by an employee from January to

December. Do not include the Ecola in computation. Can be pro-rated. Payable
before Dec. 24. But can be paid June and December or even monthly by getting
1/12th of the total basic pay earned. Absences and leaves will be deducted in
computing the total basic pay earned. No longer mandatory if the company is giving
an equivalent or more amount.
Given if there is 30 days of work.
APPRENTICE vs. LEARNERS
Both are trainees and both can be paid 25% less than the minimum wage. They
are not as full productive as a regular workers. Both has a written agreement.
Apprentice trains in a highly skilled job or in jobs found only in highly skilled
industry. With theoretical instruction. Skill and knowledge based. Para legal, nurses,
doctors and surgeons are the most common apprentice.
Learners trains in a semi skilled job or in an industrial occupation. Skill base
only. Practical training. Construction worker like carpenters, electrician, welders are
the examples.
Apprentice- agreement must be approved by DOLE otherwise the individual

is regular. (Nitto Enterprise Sept. 29, 1995).
Learner- no approval but subject to DOLE inspection.
Apprentice trains for more than 3 months but must not exceed 6 months. If he
exceed 6 months he becomes regular.
Learners trains for 3 months or less.
Apprentice- no obligation on the company to hire.
Learner- if he finishes the 3 month training period, the employer is obligated

to hire them. If they have been terminated after 2 months without fault, they become
regular employees.
HANDICAPPED
Whose earning capacity is impaired by age, injury or by physical and mental

deficiency.
There must be a written agreement with a period. Art. 80 used the words SHALL.
To me this means if there is no period the handicapped is regular.
The Magna Carta for disable fundamentally provides a qualified handicapped

must be paid the same compensation and benefits as a qualified bodied person. The
period thus becomes important for it limits the time that he is paid less. After the
period and his services are retained, then he can as to be paid just like an ordinary
individual.
- Not less than 75% of minimum wage.

- Subject to the inspection of DOLE.
MINOR’S RIGHTS
Q. Are minors allowed to work? Why not. Note that this is has been the subject
of a recurring question in the bar. Yes they are allowed to work. Alone or with the
control and supervision of their parents.
Below 18 years but not 15:
a. Prohibited to work in dangerous jobs. Dangerous means something that

can kill or injure or make them sick.
b. they can be employed on their own
Below 15 – a.) Prohibited to work in dangerous jobs
b). under the responsibility of parents or guardians.
c.) the work does not interfere in the education.

NIGHT WORKERS
Q. Is there a law that gives special rights to night workers?
Aside from NSD of additional 105, R.A 1015 gives night workers:
1. Free health check ups to avoid sickness.

2. Free separate sleeping or resting quarters and other required
facilities, i.e. first aid..
3. Right to be transferred day time if certified by a doctor or if pregnant
or just given birth.
4. Right to be consulted by employer on schedule.
SERVICE CHARGE
Q. What is the rule on service charge?
Restaurants are not required to collect service charge. If collected 85%

goes to the employee. 15% may be kept for damages of equipment or
distribution to managers. If service charge are collected and then stopped by
the company, still the employees should be paid shouldered by the company.
Covered by the non diminution rule.
PATERNITY LEAVE (8187)
Q. Who pays the paternity leave? 7 days full pay paid by the employer.
Another 7 days if maternity leave was transferred to him under the Extended
Maternity law.
Not convertible to cash. If you don’t take it, you waive it.
Can be before or after the due date.
Coverage:
- Married only.
- Due notice.
- 4 deliveries
- Living together unless separated by work.
Q. Can a contractual employee avail of paternity leave?
Example:
R.A. 8187 says the PL is granted to all married male employees regardless of
their employment status (e.g. probationary, regular, or project based). The law is not
clear about contractual. But the rule is in case of doubt, Grant it.
Q. Can you discriminate a prospective job applicant just because he is

married? There is that general policy “that no employer shall discriminate against
an employee on account of her gender. This discrimination percolate on the wife
hence is prohibited.
Q. What about miscarriage? I say it is still covered although not mentioned by
8187. Take note the purpose of PL is to allow the husband to lend support to his wife
during her period of recovery and/ or nursing her unborn child. The objective of the
law is for the wife. Para may mag luluto, maglalaba, magpapaligo ….sa bata.
H and W must be cohabiting. With each other. Not with some other individuals.
The exemption to this is when they are not cohabiting because of work or occupation.
Q. If the wife is working abroad and gives birth there, can the employer deny
PL by saying that he has no wife to take care of?
R.A. 8187 is unclear about this peculiar situation. Thus, you can apply general
principle that in the interpretation or implementation of a vague or ambiguous
provision of law, care must be given in favor of the working man.
Q. Must the child be the child of the husband? Same answer.
Q. When must the husband apply for PL? The husband have a full 9 months
to ask for PL, the law demands that the application be made, within a reasonable
time. Reasonable varies. But it is enough that it allows elbow room for the employer
to get replacement.
PARENTAL LEAVE FOR SOLO PARENT (8972) –
- 7 days leave with full pay plus flexible work schedules. Its purpose is not
specified but for the benefit of the minor like attending graduation, birthday
celebration, PTA meeting.
Coverage:
a. Employee must be working at least for 1 year like in SILP.

b. With a Solo Parent ID from the DSWD
Covers: probies, contractual or project based employees. Provided the spouse is:
a. dead, imprisoned for at least one year, sick as certified by a doctor, separates,
annuls, abandons for at least 1 year.
Q. Who else can avail of PLSP? Any relative who assumed parental
responsibility to a minor. Not necessary that he or she is the parent of the child. As
long as he or she is a solo parent because the other parent is dead, imprisoned,
physical or mentally incapacitated, or has left or got an annulment.
Not convertible. You use it or you lose it.
What if the other parent is abroad working? Not covered by the law. But I say
Grant it. The objective of the law is for the child. Who will attend to his graduation
or PTA meeting if the other parent is abroad.
LEAVE FOR VICTIMS OF VAWC 9262
Covers unmarried women. Covers the woman and the child. 10 days. Purpose
is for medical treatment or attend a hearing.
Certificate from the Barangay, Prosecutor or the Clerk of Court about a pending
case.
Violence must be committed by a person with whom she has an intimate relation.
The violence was directed on the woman or her child.
The law is silent on whether it is convertible to cash or not so I say Grant it. She
can use the cash to pay a lawyer or a representative to attend the hearing.
SPECIAL LEAVE FOR WOMEN
- Otherwise known as Gynecological leave

- 2 months leave
- 6 months of service for the last 12 months prior to surgery
- Not convertible
WOMEN’S RIGHT
STMDP – seats, toilets, marriage discrimination, pregnancy.
ART 130 a.) Seats which can be used without detriment to work.
b.) Separate Toilets
c.) Right to Marry (Art.134)
d.) Right not to be discriminated (Art.133)
e.) Right not to be dismissed due to pregnancy (Art. 135)
Pregnancy does slows a woman down. And it does have effect on a

woman’s attitude. I always smell like a rose to my wife whenever she is
pregnant.
The point is, pregnancy’s negative effect on a woman’s efficiency and
attitude, should not be taken against her.
A stewardess was fired for being pregnant. The company reasoned, that
duty aboard an airplane is disastrous to the unborn child. The Court’s said that
not only there is no scientific basis for this, for even pregnant passengers are
allowed airplane travel. Also,the employee can be assigned land duties. But
there are jobs that requires that a woman should not be pregnant.
Exception: Not unless staying not pregnant is an inherent quality

reasonably necessary for job performance. Example she is advertising
contraceptives. Or working as a medical personnel that may put risk to her
unborn child
IRR of the BATAS KASAMBAHAY
R.A. 10361
KASAMBAHAY or Domestic Helper (DH) -any person engaged in domestic

work within and employment relationship, whether on a live-in or live-out
arrangement. Ex. Katulong, yaya. cook, gardener, or labandera.
Do not include persons who just visits to performs domestic work.

Differentiate a live out DH from a DH who is on call. On call DH are not covered
by the law. DH who lives but works continuously are covered.
-minors can be kasambahay
Below 18 years but 15:
a. Prohibited to work in dangerous jobs. Dangerous means something that

can kill or injure or make them sick.
b. they can be employed on their own
Below 15 – a.) Prohibited to work in dangerous jobs
b). under the responsibility of parents or guardians.
c.) the work does not interfere in the education.
Not included:
a. service providers – on call DH.

b. family drivers –
c. children under foster family arrangement - a relative, b. provided
education and given a baon or allowance.
d. any other person who performs work occasionally or sporadically and not
on an occupational and regular basis.
Under what conditions may the employment of children fifteen (15) but below
eighteen (18) years of age be made?
a. They shall not be allowed to work for more than eight (8) hours a day, and
in no case beyond forty (40) hours a week; Walang overtime ang mga bata.
b. They shall not be allowed to work between ten o’clock in the evening and
six o’clock in the morning of the following day; Walang graveyard shift.
c. They shall not be allowed to do hazardous work; and
d.They shall not be denied access to basic education and training.
What are the basic necessities of the kasambahay?
a. At least three (3) adequate meals a day, taking into consideration the
kasambahay’s religious beliefs and cultural practices; Wag naman
palaging tira, noodles o pritong itlog.
b. Humane sleeping condition; - hindi naman kailangan may sariling kuwarto

Ok na rin sa sala basta may mattress o banig, unan at kumot. Wag naman
kasama nung mga aso sa garahe.
c. Appropriate rest and basic medical assistance. First-aid medicines (e.g.

paracetamol, mefenamic acid, antiseptic, etc.) in case of illnesses and
injuries sustained during service. SSS, ECC and PhilHealth have programs
that can address the medical expenses of the kasambahay
.
Q. Is the kasambahay entitled to daily rest period? Or can he be made to do
overtime work? Yes. He is entitled to a total daily rest period of at least 8
hours. That means a kasambahay can prompted to work for 16 hours a day,
unless he is a minor. Work hours? Not more than 16 hours. No overtime pay.
Q. Is the kasambahay entitled to a weekly rest period? Yes. He is entitled to

at least 24 consecutive hours of rest in a week. The kasambahay and the
employer may agree to shorten the rest day, provided the employer pays for
the hours worked during the shortened rest day.
Q. Right To Privacy? The employer shall respect right to privacy of the DH

and this shall be guaranteed at all times; shall extend to all forms of
communication and personal effects. So his emails are sacred, his cellphone
are sacred and even his mails are sacred.
Q. Inspection? The employer and the kasambahay can agree in their

employment contract that an inspection can be made before he/she leaves the
household. Without the agreement, this is illegal and the DH can refuse.
Q. Access To Outside Information? – The must grant the DH access to

outside communication during free time or in case of emergency even
during work time; But of course this can be regulated by an employer so
as not to compromise the security and safety of himself and his family.
Baka tumatawag na ng akyat bahay. Outside communication may
regulated to only refer to communications for an immediate family
member about his status, health and working conditions. Information
concerning the employer or his family is not covered by this right.
Q. Right To Education and Training ? – The employer shall afford the

domestic worker the opportunity to finish basic education. Higher
education, technical or vocational training is optional as the work schedule
permit. As to basic education—elementary it is mandatory as the word
used is shall. As to higher education etc., hindi naman para paaralin nyo
sila para maging abogado, doctor o engineer.
Q. Benefits: SILP, 13th month pay, SSS, PhilHealth, and Pag-IBIG.
Q. Can the employer and the kasambahay terminate the contract anytime?
Yes. Either the employer or the kasambahay may give notice to end the working
relationship five (5) days before the intended date of the termination of service.
Q. What are the entitlements of a kasambahay unjustly dismissed (actual

dismissal or constructive). by the employer?
a. Outright payment of earned wage; and

b. Indemnity benefit in the form of wage equivalent to fifteen (15) days work.
Q. What are the liabilities of a kasambahay who leaves his/her employer without
justifiable reason?
a. Forfeiture of wage equivalent to fifteen (15) days work; and

b. Reimbursement of the deployment expenses, if the employment contract is
terminated within six (6) months from employment.
Lets move on to other matters.
DUE PROCESS
In King of Kings Transport, Inc. v. Mamac,84 the SC declared:
Due process is divided into three notices which are:
NTE: Notice to Explain
NOH: Notice of Hearing --- if the employee ask for a hearing.
NOD: Notice of Dismissal
HEARING IS NOT ALWAYS NECESSARY. So you can dispense with the

NOH. In Perez v. Philippine Telegraph Company 584 SCRA 110, a 2009 case.the
Supreme Court enunciated the rule that a hearing is only necessay if it was asked or
requested by an employee.
NOTICE TO EXPLAIN
This is a very important requirement of a disciplinary proceeding for this is

its beginning.
NTEs must be in a letter form, it cannot be in oral or verbal form. (King of

Kings Transport, June 29, 2007).
So what must be contained in an NTE?
In Glaxo Welcome Phils. March 18, 2005, the Supreme Court clearly stated
that the NTE need not be couched in any prescribed form. No prescribed form means
that you can do your very own Notice to Explain in accordance to your taste and
style.
But it must contain the following:
a) The facts.
b) The grounds.
c) A directive to the employee that he is given the opportunity to submit a
written explanation on why he should not be dismissed within a reasonable
period of time.
GFD – grounds, grounds and directive.
PRE-JUDGEMENT IS A FARCICAL DUE PROCESS
Due process means that you give the opportunity to the employee to present
an explanation or a defense so that he will not be dismissed. Even if you are giving
him this right but your NTE appears that you have already pre-judge him, then there
is still no due process to speak of.
It is unnecessary to put in the NTE, phrases like:
“…you can consult a lawyer or a union officer to assist you in making your
explanation…” or “you can submit evidences or affidavit of witness in your
behalf to support your explanation.”
No. IGNORANCE OF THE LAW IS NOT AN EXCUSE
It is also in the Kings case that the Supreme Court defines ‘reasonable period
of time” to be five calendar days from the day the employee received the NTE.
According to the Supreme Court 5 days will give the employee the opportunity to:
a) Study the charges against him

b) To consult a union official or a lawyer
c) Gather data and evidence for his defense and to
d) Look for another job.
Notable is the need to apply compassionate justice and conditions of work
which are just and humane.
PREVENTIVE SUSPENSION
Nonetheless, you can include in your NTE that you are suspending the
employee pending his investigation. This is known as a preventive suspension
which is allowed by not by the labor code but by the I.R.R. of the Labor Code.
In Section 8 and 9, Rule XXIII, Book V of the I.R.R. in it provides:
“…preventive suspension maybe imposed or an errant employee

while he is undergoing an investigation for certain serious offenses. It
is justified only in cases where the employee’s continued presence in
the company premises during the investigation poses a serious and
imminent threat to the life or property of the employer or of the
employee’s co-workers. SIT
Not because the act concerns the lives or property of the employer or the co-
workers will make preventive suspension valid. Apply by parity of reasoning the
clear and present danger rule. The employee’s presence must pose as a clear and
present danger to the life and property of the employer or his co-workers.
Example in case of fighting a superior, preventive suspension is deemed

unnecessary if the employee was transferred into another work venue where he is no
longer seeing the officer of the company he fought with. Or maybe, the superior he
fought with is in the hospital. In some other case, usually, the threat posed by the
complainant is removed once he is exposed. For instance, the fact that there is
discovery that the employee is committing pilferage makes it highly unlikely that he
is going to commit the act again most specially if he is already being investigated.
Or when the employee is already removed from the area
Use your logic. Is there a serious and imminent threat? There being none, do
not do preventive suspension. Most of the time, transfer is more practical than
preventive suspension.
Can preventive suspension 30 days be extended? Yes. Provided there is

payroll reinstatement.
Can there be an indefinite preventive suspension? It is deemed a constructive

dismissal.
Can be extended after 30 days but the employee must be paid.
Management prerogative is scarce. But this involve the right to discipline

and the right of management for self preservation.
Q. Can the employee, refuse to receive an NTE. Serious Misconduct.
Q. Can he refuse to answer? Insubordination. Not unless there is a statement

in the NTE that failure to answer is waiver on the right to be heard.
Q.Can he waive the five day period? Yes, by answering. But not by
stipulation in the employment contract. The waiver is void. Asia world v. NLRC,
August 24, 1999, says that such agreement is unlawful and invalid.
Q. Can the period in the NTE be less than 5 calendar days? Yes. But the
employee can still answer it in 5 days. It will not invalidate the NTE.
Q: Where and how do you serve an NTE? By registered mail, personal service
or by courier at his last known address.
Q. No NTE? Means no due process. If there is just cause, the employer only
pays nominal damage (Agabon). However, it can be argued that no NTE
means that the employer has not found just cause for giving the employee
the opportunity to explain may have proven that he did not commit the
infraction after all.
RESIGN OR ELSE…
In Willi Hahm Enterprises v. Maghuyop, G.R. No. 160348, December 17,

2004, the Supreme Court ruled: “…A decision to give a graceful exit to an employee
rather than to file an action for redress is perfectly within the discretion of an
employer…” It is not uncommon that an employee is permitted to resign to save face
after the exposure of her malfeasance.
Asking an employee to file a resignation on condition or promise that she

would be given priority for re-employment is illegal. (Reyes v. NLRC, G.R. No.
789997, August 31, 1989). Forcing an employee to resign in exchange of monetary
benefits such as separation pay, SILP, 13th month pay, etc., is illegal. (Star Paper
Corporation v. Simbal, G.R. No.164774, April 12, 2006. Prime Security Services
Inc. v. NLRC, G.R. No. 107320, January 19, 2000. Where the H.R. of a Security
Agency already has a prepared ready resignation form for the companies employees.
The Supreme Court said:
“…No weight shall be given to the employee’s resignation letter which
appears to have been written and submitted at the instance if the employer…”
RESIGNATION with QUITCLAIM
Categorize that two kinds of quitclaim that accompanies a quitclaim.
A quitclaim that speaks of the lack of intention or interest of the employee to

sue his employer is dubious.
“…A resignation letter which is also a quitclaim are dubious, to say

the least…” said the Supreme Court in Mobile Protection and
Detective Agency v. Ompad, G.R. No. 159196, May 9, 2005.
But a quitclaim which is just an acknowledgment that the employee has

received his last pay and other last benefits is acceptable. (Lagahit 177680).
GUIDE TO A VALID RESIGNATION
a. Prepared and signed by the employee.

b. Contains the reason for the resignation i.e. to go abroad, to study.
c. Contains words of thanks or gratefulness. (Willi Hahn Enterprises v.
Maghuyop, G.R. No. 160348, December 17, 204 and St. Michael Academy
v. NLRC, G.R. No. 119512, July 13, 1998, 292 SCRA 478).
ALSO THERE MUST BE BEFORE AND AFTER BEHAVIORAL SIGNS.
Lets go to Lagahit vs. Pacific Concord 177680 January 13, 2016, the glorified
saleswoman who is called a sales manager. Lagahit received a letter from the
company that “today you are officially not connected with us. A txt message was
also sent to her husband. Lagahit replied in a letter that she was not guilty of what
ever charges against her but she is accepting her fate and that she just be paid her
separation pay. The company treated this is her resignation but she was not paid
anything.
Said the SC, “the resignation must be unconditional and with a clear intention
to relinquish the position. In this connection, the acts of the employee before and
after the resignation are considered to determine whether or not she intended, in fact,
to relinquish the employment.
Was he telling his friends before hand of his planned resignation? This is an
act prior to the resignation. Did he leave for abroad? This is act after the resignation.
. These are the acts prior and after that manifest an intention to relinquish once job.
If the employer interposes the defense of resignation, it is his obligation to

prove that the resignation was voluntary and intelligently done. No vitiated consent.
Failure to prove means that the resignation was forced and the employer is guilty of
constructive dismissal.
Specailly if the employee subsequently file an illegal dismissal case, the SC
time and again ruled that an illegal dismissal case is inconsistent with the intention
to relinquish one’s post.
Q: Are you suppose to pay him separation pay? There is no provision in the
Labor Code which grants separation pay to an employee who voluntarily resigns.
(Hanford Philippines v. Joseph, G.R. No. 158251, March 31, 2005) unless it is
stipulated in the employment contract on CBA or such payment is authorized by
the employer’s practice or policy. (Hinatuan Mining Corporation v. NLRC, G.R.
No. 117394, February 21, 1997).
Q. Can there be oral resignation?The validity of an oral resignation has

recently been given jurisprudential recognition in the case of Hechanova (Hechano
Bugay vs. Matorre G.R. No. 198261 Oct, 16, 2013).
ILLEGAL DISMISSAL
Q. What are the core issues in illegal dismissal?
For all the suggested answers I read on illegal dismissal questions in the bar
exam for the past 20 years, I noticed that they only pertains to these matters:
SECURITY OF TENURE
PROPORTIONALITY DOCTRINE
MANAGEMENT PREROGATIVE
INIMICAL TO EMPLOYER DOCTRINE

INCOMPATIBILITY DOCTRINE
TOTALITY DOCTRINE
A question that goes – Is the dismissal legal? can ultimately be answered

discussing any of these doctrines.
For the start, let us talk about Security of Tenure. Art. XIII Sec. 3 of
Constitution provides:
“The state shall afford full protection to labor, promote full employment, and
equality of employment…. They (the employees) shall be entitled to security tenure.
This means that a worker cannot be terminated from his job without just cause
and due process. In the Philippines, employment is quite difficult to come by. By 22
you have to have a job. By 27 you have to have a career. In here your employment
is your life. Doing business is not an option for there a lot of business man out there.
Thus dismissing an employee is like imposing upon him the death penalty.
Q. Between Security of Tenure and Management Prerogative which should

prevail?
Remember the phrase: “… The state affords full protection to labors and
guarantees an employee a secured tenure..”
“… Security of tenure is a paramount right of every employee that is held

sacred by the Constitution..” (Sagales 166554). These will be the words that
your examiner will be looking for in your exam booklets.
In several cases, the SC considered the following circumstances before

applying the penalty of dismissal: SADME
Years of Service
Absence of previous violation
Minimal Damage on the part of the employer
That the employee is not a Manager
Insufficiency of Evidence-that all doubt should be
resolved in the favour of labor. M13th Silp Hpliday.
Hence the proportionality doctrine.
Doctrine of proportionality hinges on the one more chance principle. You give
your employee, one more chance.
Apply PRO to:
Serious misconduct and simple misconduct

Gross and habitual neglect and simple and not habitual neglect
Insubordination
Commission of a crime
Fraud
Fighting and quarrelling
Use of foul language
Theft
Misappropriation
Sexual harassment
Immorality
Intoxication
Sleeping on the job
Urinating in the job place
Incompetence or unsatisfactory performance
Tardiness
Absenteeism
AWOL or abandonment
Analogous cases
But be careful in applying PRO if there is MUD, Monetary damage,

Undermining of authority which creates a hostile environment or Disruption of other
employees work and business operation.
PRO does not apply to managers for more loyalty is expected of them.
Also to person to whom trust and confidence is reposed. In Citibank 111222,

PRO was not applied despite the 22 years of service by the cashier who left on the
table a huge amount of money which was stolen. In that case, the SC ruled that the
longer a person employed stays in service, the greater is her supposed responsibility.
Also take note, that the listing I gave you does not include dishonesty. A
dishonest person do not deserve a second chance. For here, the doctrine of
incompatibility (INC) may come in. We shall discuss this later. Before we do, let us
discuss first the inimical to interest of the employer doctrine (INE).
So General rule: Apply proportionality doctrine if there is SADME.
Exception: a) if there is MUD

b) if the employee is a manager or an employee of trust, the longer
he is with the company, the more he should be trusted.
c) if there is dishonesty.
Lets move on to INE.
Q. What is the “inimical to employer doctrine?”
Inimical to interest of employee’s doctrine: (INE). In Cola Cola Bottles 82850
and 84075, the SC held that “....An employer cannot be compelled to continue in
employment an employee guilty of acts of inimical to its interest.”
Non performing employees. Inefficient employees. Employees who cannot

cope up with the quota.170139 Sameer. Mabait naman pero walang maibuga.
Indeed, employers have the prerogative to impose productivity and quality

standards at work. They may also impose reasonable rules to ensure that the
employees comply with these standards. Failure to comply may be a just cause for
their dismissal. Certainly, employers cannot be compelled to retain the services of
an employee who are guilty of acts that are inimical to the interest of the
employer. While the law acknowledges the plight and vulnerability of workers, it
does not "authorize the oppression or self-destruction of the
employer." Management prerogative is recognized in law and in our jurisprudence.
Cola Cola Bottles that “....An employer cannot be compelled to continue in

employment an employee guilty of acts of inimical to its interest.
Lets move on to the incompatibility doctrine (INC).
Q. What is the “incompatibility doctrine?
This refers to the doctrine that if the behavior, attitude, actuation, mindset,
psychology of the employee is incompatible to his being an employee then he should
go. Yung sobrang pasaway. Yung walang paki-alam. Yung na nadya na. Unlike in
inimical rule, dito yung empleyado may ibubuga, masama nga lang ugali.
The case of Carbonilla vs, Cebu Peoples Multipurpose Cooperative. 2016

comes to mind.
Carbonilla is a law graduate. Not a lawyer but acts like one. He was hired as
Credit Collection Manager and later on tasked to do duties of a Human Resource
Officer. Being a smart aleck, he was often given an NTE by the Human Resource
Manager of the company. He responds by threatening her with a lawsuit citing the
1987 Constitution. More than once he argued with the CEO citing the Philippine
Law Dictionary wherein he maintained that he is not liable for insubordination. In
addition, he often times argues with his superiors using the Philippine Law
Dictionary as basis for his argument. Because of his uncouth behavior notices were
sent to him to explain. A hearing was conducted, then he was dismissed. Carbonilla
sued for illegal dismissal. The SC ruled:
“Surely within the bounds of law, management has the rightful prerogative to
take away dissidents and undesirable in the workplace. It should not be forced to
deal with difficult personnel … Carbonilla comes off as a smart aleck who would
even go to the extent of dangling whatever knowledge he has of the law against his
employer in a combative manner. Everytime his attention was called for some
inappropriate actions, he would always show his book , Philippine Law Dictionary
and would ask the CEO under what provision of the law is he liable of…” With all
this, Carbonilla’s dismissal was deemed as legal.
Lets move on.
Q. What is the Totality Doctrine (TOL)?
In Manila Electric Company 114129 the SC says that “numerous infractions

of an employee in the past cannot be totally disregarded.” In Reno 164016 “Just
because the employer was compassionate to an employee in the past... does not give
him the vested right to demand the some compassion this time on the ground and
social justice. Social Justice and equality are not magical formulas to erase the unjust
acts committed by the employee against his employer..”
Incorrigibility summons or calls for the application of TOL.
Totality does no run counter to PRO. They are not in conflict. In PRO, may
maliit na infraction. Pero isa lang. Sa Totality, maliit rin yung infractions pero
marami. Sabi nga, patak patak lang, nakaka puno rin ng balde.
Q. Can past infractions, which were already the subject of penalties, be

considered in the application of the Totality Doctrine? In Merlin 171790 oct. 17,
2008 the SC ruled “If despite the sanctions imposed upon the employee, he
continued to commit misconduct and exhibit undesirable behavior, his termination
his justified.
However, be careful on the relation or similarity of the offenses. If they are

not related to each other and the previous offense has already been punished, do not
apply the Totality doctrine. Example the employee has already punished for several
unauthorized absences then do not account this anymore, if the latest infraction
concerns punching of time card.
By the way the just causes for termination of employment under Article 297
of the Labor Code?
An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful

orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of

his employer or any immediate member of his family or his duly authorized
representatives; and
(e) Other causes analogous to the foregoing.
Requisites.- For misconduct or improper behavior to be a just cause for dismissal:
(a) it must be serious;
(b) it must relate to the performance of the employee’s duties; and it must show that
the employee has become unfit to continue working for the employer.
© the act was performed with wrongful intent.
Q How to determine serious? The act connotes a mental perversity. A

complete indifference (walang pakialam) to the detrimental effect of his act to the
company.
Having an argument, not fighting, is deemed misconduct but not serious. The
case of Northwest where a flight attendant borrowed a bottle opener from another
filght attendant because hers is broken. The other flight attendant was caught saying,
every flight attendant who cannot bring a bottle opener has not right to the in the
business class. A heated argument then ensued. The misconduct here was not treated
as serious.
Q. How to determine work relation?
You remember the story of Dr. Jekyll and Mr. Hyde. Dr. Jekyll is a exemplary
doctor at day but a serial killer at night. At work he is cordial to everybody, does not
take coffee breaks, says graces before eating meals but when he goes out of the
hospital he goes on a killing rampage. What if the hospital founds out that he is a
psychotic serial killer, can he be fired for serious misconduct. This does not
have anything to do with his work. Anything that an employee does that is not related
to his work is something that cannot be taken against him. In fact, when an employee
sent an e-mail messages in sympathy for a labor union, the SC ruled that it is not
related to his work. In Aris Philippines, 97817, 1996, where the employee slapped a
canteen helper inside the canteen, the SC ruled that it is not related. In Aeolus
Automotive, 124617, 2000, where a nurse threw a stapler against a plant manager,
same ruling. In Lagnusas 168637, 2008, where a former boyfriend hit on the head
a colleague because of jealousy. Negative. Since it was made outside the company,
the SC held that the misconduct was NOT WORK-RELATED.
But in Waterfront, where the house detective was found out to have kissed
and did unpleasant things to a female applicant, the SC held that his knowledge of
where the CCTV were placed could have not been had if he was not a house
detective. Thus, the sexual harassment is work-related.
In Yabut 190436, 2012, the fact that the employer has knowledge of how to
put an illegal electric connection being a Meralco field representative makes his act
of putting a jumper as misconduct which is work-related.
a) Discourteous answer to an NTE – bakit ako sinisisi nyo, eh dapat

magdagdag kayo ng empleyado.
b) Email to the SVP – he was so unfair, sabihin mo solohin nya office bukas.
But not when the email refers to an issue concerning the employees.
c) Utterances, be careful if it refers to an issue not against a person.. sabihin

mo kay EVP bullshit yan… note the words not bullshit sya. Also when the
utterances were made in union meetings or rallies as it encourages employees to air
their grievances.
In Bondoc vs. NLRC, [G. R. No. 103209, July 28, 1997, 276 SCRA 288],
utterances on different occasions towards a co- employee of the following: -”Di bale
bilang na naman ang araw mo.” – “Sige lang, patawa tawa ka pa, eh bilang na bilang
na ang araw mo.” – “Matakot ka sa Diyos, bilang na ang araw mo; Mag-ingat ka sa
paglabas mo sa Silahis Hotel. - Unggoy xxx ulol” were held unquestionably as
partaking the form of grave threat or coercion which justified the dismissal of the
offender.
d) unauthorized reading by an employee of confidential communication –

Tirazon 169712—shows poor character, not fit to be retained as an employee.
e) Use of gago as in gago ka againt a superior, in Autobus 165995 was deemed

a serious misconduct… In Johansen 198733 the words were.. wala na akong iniisip
kundi negosyo yan pa ang sasabihin nya, pareho pala kayong gago… the words was
taken as mere outburst for a perceived unfair treatment.
f) Utterances not heard and not really obscene … maski walang sakit, pina pa
isolate… since the economy of a hospital refers the integrity of its doctors the
utterances were dismissable.
g) fighting – within or outside (15 meters from the gate North Camarines
75436), if it distracts employees, scares customers or disrupt operation is
dismissible. Solvic 125548. Even if it’s a private quarrel. But if it was done inside
the toilet, no problem. Also not all participant in the fight should be dismissed. If the
employee is only defending himself, you cannot expect him to just accept the
mauling just to preserve industrial peace.
h) Instigating husband to maul supervisor is SM.. Gatus 156766 by saying

sige pa sige pa.
j) punching in of time cards.. consider good faith. If the purpose is to defraud

the company, SM. But in Aeolus 124617, an employee ask another to
punch in for her as she was on an errand is not SM. It was done in good
faith.
k) DRUGS RA 9165
Rules: first screening test, then confirmatory test by a DOH accredited

clinic. Both must be positive. Puwedeng uminom lang ng Bangkok
pills.
Mandatory drug test. There will be insubordination if not heeded.

Social Justice 157870
Drug test result is valid for 1 year. Unless there is compelling reason
(drug related accident occurred) , drug testing must be done once a year
only.
Outright dismissal is not sanctioned under RA 9165. The company

must have a drug prevention and control program which SHALL
include treatment, rehabilitation and referral. It is only when repeated
drug use even after ample opportunity for treatment and rehabilitation
shall be dealt with dismissal. A messenger or a warehouseman who is
a silent drug addict should not be dismissed.
Exception: When use of drugs can result in serious damage. Pilot, driver
or aircraft mechanic ( Roquero 152329). Even if he was only instigated.
(Roquero).
l) Immorality
As a general rule, immorality is not a just ground to terminate

employment. The exception is when such immoral conduct is prejudicial or
detrimental to the interest of the employer. OPINION: EVERYONE IS
IMMORAL. ONLY IF IT AFFECTS BUSINESS
The standard to be used to determine whether the immoral conduct

adversely affects the interest of the employer is whether the immoral act is of
such nature which may be considered calculated to undermine or injure such
interest or which would make the worker incapable of performing his work.
My immorality is none of your business. Exception teachers.
Said the Court. “…when a teacher engages in extra-marital

relationship, especially when the parties are both married, such behavior
amounts to immorality, justifying his termination from employment. He sets
a bad example to the youth whose ideals a teacher is supposed to foster and to
elevate, (Santos, Jr. vs. NLRC, G. R. No. 115795, March 6, 1998, 287 SCRA
117).
But The act of a lady teacher in falling in love with a student, not
immoral. The act of a 30-year old lady teacher, of falling in love with her
student whose age is 16, is not an immoral act which would justify the
termination of her employment. Definitely, yielding to this gentle and
universal emotion is not to be so casually equated with immorality. Justice
Regaldo “… If the two eventually fell in love despite the disparity of their
age, it only lends substance to the truism that the heart has reasons of its own
which reason do not know. (Chua-Qua vs. Clave, G. R. No. L-49549, Aug.
30, 1990).
Ito yung gusto ko. Toledo A.M. No 507 --- the Supreme Court said
Whether a lawyer’s sexual congress with a woman not his wife or without the
benefit of marriage should be characterized as grossly immoral conduct will
depend on the surrounding circumstances.
But IMMORALITY if prohibited as a company policy is serious

misconduct. Alilem 173489. “… it is prohibited to do acts which brings
discredit to the organization such as crimes illicit marital affairs etc.
SEXUAL ACTS INSIDE COMPANY PREMISES – serious

misconduct said the Court… get a room.. joke. Said the Courts… it does not
have a place in the work environment. Even if beyond office hours.. for it can
still be considered as work related. You cannot use the company premises if
not for work. Casiano 101875. But consider PRO.
Gambling within company premises, a serious misconduct.
OPINION: DEPENDS ON GAMBLING. TONG ITS, MADYONG or

other forms which DISRUPTS OPERATIO. EXCEPTION: LOTTO,
ENDING, PUSTAHAN SA BOXING
In one case, an employee was validly terminated when he was caught

gambling within the company premises, it being a prohibited act carrying the
penalty of termination under the Company Rules. (Dimalanta vs. Secretary of
Labor, G. R. No. 83854, May 24, 1989).
m) Intoxication as ground for termination.
As a general rule, intoxication of an employee which interferes with his

work, constitutes serious misconduct. It is well-settled by jurisprudence that
serious misconduct in the form of drunkenness and disorderly or violent
behavior is a just cause for the dismissal of an employee. (Sanyo Travel
Corporation vs. NLRC, G. R. No. 121449, Oct. 2, 1997; Club Filipino, Inc.
vs. Sebastian, G. R. No. 85490, July 23, 1992, 211 SCRA 717).
However, the nature of the employee’s work, the dignity of his position
(NAKAKAWALA NG RESPETO) and the surrounding circumstances of the
intoxication, must also taken into account. TEACHER IN LAW SCHOOL
WHOM STUDENTS RESPECT WHEN TEACHING WHILE DRUNK
For instance, the act of a managerial employee of reporting for work

under the influence of liquor and sleeping while on duty reflect his
unworthiness of the trust and confidence reposed on him. (Del Val vs. NLRC,
G. R. No. 121806, Sept. 25, 1998, 296 SCRA 283).
n) Sleeping while on duty as a ground for termination.
OPINION: APPLY PROPORTIONALITY DOCTRINE
In Luzon Stevedoring Corporation vs. CIR, [G. R. No. L-18683, Dec.

31, 1965], and A’ Prime Security Services, Inc. vs. NLRC, [220 SCRA 142
(1993)], the act of an employee of sleeping in his post, coupled with gross
insubordination, dereliction of duty and challenging superiors to a fight, was
held as serious misconduct.
For security guards it is not only serious misconduct but

insubordination.
EXCEPTION: DRIVER OR SECRETARY, SLEEPING TO

REINVIGORATE
o) Eating while at work.
Dismissal is too harsh a penalty for the offense of eating while at work,
under the attendant circumstances of the case. (Tanduay Distillery Labor
Union vs. NLRC, G. R. No. 73352, Dec. 06, 1995).
OPINION: BUT IF REPEATED WITH IMPUNITY, CAN BE

DISOBEDIENCE TO A LAWFUL ORDER OR INSUBORDINATION.
SECRETARY WHO EATS IN THE SEEING DISTANCE OF THE
PRESIDENT AND EVEN UTTERED “HAYAAN MO NGA SIYA”.
p) Urinating in the workplace.
JOKE: ITS AGAINST THE LAW, NO ITS AGAINST THE WALL.
In a 2002 case, it was held that urinating in a workplace other than the
one designated for the purpose by the employer constitutes violation of
reasonable regulations intended to promote a healthy environment under Art.
282 [1] of the Labor Code for purposes of terminating employment, but the
same must be shown by evidence. An employee cannot be terminated based
on this ground if there is no evidence that he did urinate in a place other than
a rest room in the premises of his work. (Tan vs. Lagrama, G. R. No. 151228,
Aug. 15, 2002). (STUPID)
q) Dismissal due to customer complaint.
Customer is king. This has been a slogan of so many company. A

customer complaining because of the actions of an employee constitute as an
act inimical to its interest. PLDT 74562. This is true even if the complaint has
nothing to do with the employer of the job. The employee is a telephone
installer of PLDT. He demanded a service fee to repair the cable of PLDT
customer which is not his job. The customer complained. He was dismissed.
r) Borrowing from a customer
Gen rule: prohibited (Pearl Buck 80728) since the employee has a little
moral ascendancy or leverage on the customer. Barbero umutang sa
customer bago sya ahitan or driver na umuutang sa pasahero bago mag
drive sa Baguio.
Exemption: Medical Doctors 56633 – loan was in good faith, out of

financial difficulty and the employee has no leverage or ascendancy over
the customer.
MANAGEMENT PREROGATIVE
Magic words: The employer is free to run or regulate his business according
to his judgment and discretion. Save the instances that the law requires for a specific
condition of work, the employer is free to do as he please.
This principle, used time and again, says:
“The law in protecting the rights of the employees authorized neither

oppression nor self-destruction of the employer.”
Q. Latest rule on transfer?
Legal even if it is inconvenient and cumbersome to the employee if it

was made in good faith. Chatean Royals 197942. Exception: Difficult
transfers. Ping Pong Transfers (Manila to Pampanga, then Pampanga to
Manila with a period of 1 month, In this case the employee was
seriously damage for they transferred their house and the study of the
children to Pampanga). Transfer abroad.
NLRC
Article 111 of the Labor Code. What does it provides:
“…In cases of unlawful withholding of wages the culpable party may

be assessed atty’s fees equivalent to ten percent of the amount of wages
recovered. It shall be unlawful for any person to demand or accept, in
any judicial or administrative proceedings for the recovery of the
wages, atty’s fees which exceed ten percent of the amount of wages
recovered…”
Note the wordings of Article 111:
First - it only refers to withheld wages.

Second - it is atty’s fees that is directed against the culpable party
– meaning the employer.
Third - it is atty’s fees paid by the employer to the employee and

not the atty’s fee agreed by the employee with his lawyer.
Article 111 means that an employee who files a complaint against his
employer for withheld wages, who claims that he spend a certain amount of money
in litigating, can get from his employer an atty’s fee of 10% of the withheld wage.
This atty’s fee is known as: “…Extra ordinary atty’s fee…” In PCC Shipping
Philippines, Inc vs. National Labor Relations Commission ruled: “…Article 111 of
the Labor Code, as amended contemplates the extraordinary concept of atty’s
fees…” The atty’s fee that is agreed by the client to his lawyer in a contingency
arrangement is not that contemplated by Article 111.
Lets move on. Basic principles on jurisdiction: “the existence of employer-

employee relationship between the parties and litigants is a pre-requisite for the
exercise of jurisdiction by the labor arbiters Remember the two kind of jurisdiction.
Over the person and over the subject matter. Over the person, balik tayo sa WWH
or Pera Doctrine. This means that the individual is already working in the company.
For if the person has not yet started to work, then LA has no jurisdiction. Over the
subject matter, consider : RECOM, WIDUS.
The M on RECOM is monetary claims with prayer for R einstatement,
monetary claims E xceeding 5k, monetary claims for C ompromise Agreements and
monetary claims of OFW. W age distortion, I llegal dismissal, D amages owing EE.
ULP, S trikes and lockouts. All other cases provided by law.
Q. Can jurisdiction be conferred on the labor arbiter by estoppel? Assuming

that the Labor Arbiter, apparently has no jurisdiction on a case, yet the parties
appeared and participated in the proceedings, will it confer jurisdiction to the Labor
Arbiter by estoppel? There is a divergent view on this issue:
One – a party’s active participation in the actual proceeding before a court

without jurisdiction will estop such party from assailing the lack of jurisdiction. This
is the ruling in Bonha 193857 2012.
Second- jurisdiction is conferred by law and the lack of jurisdiction may be

questioned at any time even on appeal. In Gokongwei 2005 154295 it is said that:
“… jurisdiction is conferred by law and lack of jurisdiction may be questioned at
any time even on appeal..”
The 2011 NLRC Rules of Procedure DID NOT settle this when it required
that jurisdiction should be a matter of a Motion to Dismiss during the mandatory
conciliation proceedings. SECTION 6. MOTION TO DISMISS. - Before the date set for
the mandatory conciliation and mediation conference, the respondent may file a
motion to dismiss on grounds provided under Section 5, (jurisdiction over the
subject matter, improper venue, res judicata, prescription and forum shopping)
hereof. Such motion shall be immediately resolved by the Labor Arbiter through a
written order. An order denying the motion to dismiss, or suspending its resolution
until the final determination of the case, is not appealable.
SECTION 7. EFFECT OF FAILURE TO FILE. - No motion to dismiss shall

be allowed or entertained after the lapse of the period provided in Section 6 hereof.
So Section 6 dictates that if the Arbiter has no jurisdiction over the subject
matter, you must file a Motion to Dismiss before the date of the Mandatory
Conference. Refer to RECOM WIDUS. Monetary claims with R einstatement,
monetary claims E xceeding 5k, monetary claims for C ompromise Agreements and
monetary claims of OFW. W age distortion, I llegal dismissal, D amages owing EE.
ULP, S trikes and lockouts. If this are the issues then file a Motion to Dismiss before
the mandatory conference.But what if there was no Motion to Dismiss, the case
proceeded before the Labor Arbiter and on appeal before the NLRC jurisdiction is
questioned. The key element here is still the 2011 NLRC Rules which states the
source of the Labor Arbiter’s jurisdiction Let me repeat. RECOM WIDUS. Note the
phrase” All other cases provided by law. It becomes clear that Labor Arbiter source
their jurisdiction from the Labor Code----- RECOM WIDUS--- and all other cases
provided by law. If the lack of jurisdiction is because of the Labor Code, meaning
there is no RECOM WIDUS, then there can be jurisdiction by estoppel.
One – a party’s active participation in the actual proceeding before a court

without jurisdiction will estop such party from assailing the lack of jurisdiction. This
is the ruling in Bonha 193857 2012.
If the lack of jurisdiction is because there is a specific law, i.e. SSS law, CDA
law, OFW law, which puts jurisdiction in some other courts’ there is no estoppel in
this situation. Jurisdiction, if by law is vested on some other courts will not be vested
on the Labor Arbiter by reason of the participation of the parties in the proceedings.
Jurisdiction is conferred by law and the lack of jurisdiction may be questioned

at any time even on appeal. In Gokongwei 2005 154295 it is said that: “…
jurisdiction is conferred by law and lack of jurisdiction may be questioned at any
time even on appeal..”
Thus, there is no estoppel in this situation.
- Cases involving members of cooperative. No estoopel. The

Cooperative Law, which is a specific law, says jurisdiction is with
the CDA for cooperatives. There can be no estoopel in this even if
the parties participate in the proceeding.
Members (they are co-owners) – LA has no jurisdiction/CDA

Employees – LA has jurisdiction
Member/Employee – LA has jurisdiction under the Joined Persona-
lity Doctrine
Except in the case of Semillano 164257, where the cooperative was found out
to be a labor only contractor. Thus, the court ruled that not only are the members
regular employees, but that the Labor Arbiter has jurisdiction.
- Cases involving corporate officers. There can be no estoppel in this

if the officer are part of the organizational structure like the
President and the corporate secretary or treasurer. They were not
employed by the company, They were elected in accordance with
the company’s by laws. This is known as the Matling Doctrine. Is
the officer a President Secrerary or Treasurer? They are corporate
officers. Jurisdiction is with the regular courts. There is no estoppel
But, other officers hired such as GM, CEO are employees.

Jurisdiction is with the NLRC.
- Cases involving government employees. The Civil Service Law

says that it’s the Civil Service Commission that has jursidiction. No
estoopel. But note that if the complainant works in a GOCC
determine if the GOCC was incorporated under the Corporation
Code. (L.A). If the GOCC is created by a special law or a charter.
(Civil Service Commission)
- Cases involving torts or quasi delict cases – the Rules of Court says
jurisdiction is with Regular courts. I just handled a case involving a
complainant who had a heart attack while on the job. Another one is
a construction worker who fell from the upper story of a building
being constructed. They both filed a case before the NLRC for
money claims arising of an employer employee relationship. Nope
the NLRC said. Torts and quasi delicts are regular court cases. There
is no estoopel meaning jurisdiction can be questioned for the first
time even on appeal.
- SSS claims. There is the SSS law. There is no estoppel.
- if the complainant is an OFW who files an administrative complaint
like suspension of revocation of the license of the manpower
agency. Jurisdiction is with the POEA. No estoopel.
On the other hand, the SC ruled there can be estoppel in these cases:
- Amount of money claim, not more than Php 5,000. Estoopel

- Cash advance or personal loans. There can be estoopel.
- if there is a CBA which stipulates that complaint shall be filed and
tried by a voluntary arbitrator then V.A. Yung sa NLRC ang tawag
dun compulsory arbitration. Libre yun. The parties however are not
prevented from hiring a voluntary arbitrator. May bayad. Supervised
ng DOLE. The decision is no longer subject to appeal. Executory
agad as a general rule. There is estoopel.
- Or if the complainant is an OFW who filed a case abroad against the
manpower agency and their foreign counterpart, enforcement of the
decision in said case will be with the regular courts. There can be
estoopel.
- Damages because breach of non-competition clause – Courts.
Estoopel.
So much for jurisdiction.
Q. What is the nature of the proceedings before the Labor Arbiter?
The NLRC Rules describe the proceedings before the Labor Arbiter as non-
litigious. Subject to the requirements of due process, the technicalities of law and
procedure in the reg
ular courts do not apply in the labor arbitration proceedings.
Q. May a non-lawyer appear in any of the proceedings before the Labor Arbiter
or Commission?
Yes. A non-lawyer may appear in any of the proceedings before the Labor
Arbiter or Commission only under the following conditions:
1. he/she represents himself/herself as party to the case;
2. he/she represents a legitimate labor organization, as defined under Article 212

and 242 of the Labor Code, as amended, which is a party to the case:
3. he/she represents a member or members of a legitimate labor organization that

is existing within the employer’s establishment, who are parties to the case:
4. he/she is a duly-accredited member of any legal aid office recognized by the

Department of Justice or Integrated Bar of the Philippines: Provided, that he/she (i)
presents proof of his/her accreditation; and (ii) represents a party to the case; v
5. he/she is the owner or president of a corporation or establishment which is a

party to the case:
Q. Does the counsel or authorized representatives have the authority to bind their
clients?
Yes. Counsel or other authorized representatives of parties shall have

authority to bind their clients in all matter of procedure. However, they cannot,
without a special power of attorney or express consent, enter into a compromise
agreement with the opposing party in full or partial discharge of a client’s claim.
Q. What is the purpose of mandatory conciliation and mediation conference?
The mandatory conciliation and mediation conference shall be called for the
purpose of (1) amicably settling the case upon a fair compromise; (2) determining
the real parties in interest; (3) determining the necessity of amending the complaint
and including all causes of action; (4) defining and simplifying the issues in the case;
(5) entering into admissions or stipulations of facts; and (6) threshing out all other
preliminary matters.
Q What is the effect of non-appearance of the parties in the mandatory conciliation

and mediation conference?
The non-appearance of the complainant or petitioner during the two (2)

settings for mandatory conciliation and mediation conference scheduled in the
summons, despite due notice thereof, shall be a ground for the dismissal of the case
without prejudice.
In case of non-appearance by the respondent during the first scheduled

conference, the second conference as scheduled in the summons shall proceed. If the
respondent still fails to appear at the second conference despite being duly served
with summons, he/she shall be considered to have waived his/her right to file
position paper. The Labor Arbiter shall immediately terminate the mandatory
conciliation and mediation conference and direct the complainant or petitioner to file
a verified position paper and submit evidence in support of his/her causes of action
and thereupon render his/her decision on the basis of the evidence on record.
Q. What is the period within which to cause an amendment of the complaint or

petition?
No amendment of the complaint or petition shall be allowed after the filing of

position papers, unless with leave of the Labor Arbiter.
Q. What are the prohibited pleadings and motions?
The following pleadings and motions shall not be allowed and acted upon nor
elevated to the Commission: (a) Motion to dismiss the complaint except on the
ground of lack of jurisdiction over the subject matter, improper venue, res judicata,
prescription and forum shopping; (b) Motion for a bill of particulars; (c) Motion for
new trial; (d) Petition for Relief from Judgment; (e) Motion to declare respondent in
default; (f) Motion for reconsideration of any decision or any order of the Labor
Arbiter; (g) Appeal from any interlocutory order of the Labor Arbiter, such as but
not limited to, an order: denying a motion to dismiss, denying a motion to inhibit;
denying a motion for issuance of writ of execution, or denying a motion to quash
writ of execution; (h) Appeal from the issuance of a certificate of finality of decision
by the Labor Arbiter; (i) Appeal from orders issued by the Labor Arbiter in the
course of execution proceedings; and (j) Such other pleadings, motions and petitions
of similar nature intended to circumvent above provisions.
Q. May a party file a motion to revive and re-open a case dismissed without
prejudice?
Yes. A party may file a motion to revive or re-open a case dismissed without
prejudice, within ten (10) calendar days from receipt of notice of the order
dismissing the same; otherwise, the only remedy shall be to re-file the case. A party
declared to have waived his/her right to file position paper may, at any time after
notice thereof and before the case is submitted for decision, file a motion under oath
to set aside the order of waiver upon proper showing that his/her failure to appear
was due to justifiable and meritorious grounds.
Q. What is the mode of appeal from the decision of the Labor Arbiters?
Appeal from the decision of the Labor Arbiter is brought by ordinary appeal
to the NLRC within ten (10) calendar days from receipt by the party of the decision.
From the decision of the NLRC, there is no appeal. The only way to elevate the case
to the Court of Appeals is by way of the special civil action of certiorari under Rule
65 of the Rules of Civil Procedure. From the ruling of the Court of the Appeals, it
may be elevated to the Supreme Court by way of ordinary appeal under Rule 45 of
the Rules of Civil Procedure.
Q. What are the grounds for appeal?
There are four (4) grounds, to wit: ACID
a) If there is prima facie evidence of abuse of discretion on the part of the

Labor Arbiter;
b) If the decision, order or award was secured through corruption, coercion
or fraud;
c) Issues of law; and
d) If serious errors in the findings of facts are raised which would cause grave
or irreparable damage or injury to the appellant.
Q. What are the requisites for perfection of appeal?
The appeal shall be: (1) filed within the reglementary period provided in
Section 1 of the Rule; (2) verified by the appellant himself/herself in accordance
with Section 4, Rule 7 of the Rules of Court, as amended; (3) in the form of a
memorandum of appeal which shall state the grounds relied upon and the arguments
in support thereof, the relief prayed for, and with a statement of the date the appellant
received the appealed decision, award or order; (4) in three (3) legibly typewritten
or printed copies; and (5) accompanied by proof of payment of the required appeal
fee and legal research fee, posting of a cash or surety bond as provided in Section 6
of this Rule, and proof of service upon the other parties.
Talking about remedies, Q. Whats new about remedies and remedies on labor law?
Lets talk about Andrew James Mcburnie vs. E. Ganzon Inc. 178034, 178117
and 186984-85. This case was tackled in the Supreme Court 3 times thus the 3
G.R. Numbers. It was finally decided on October 17, 2013.
Mc Burnie is an ex-pat, an EVP of Ganzon for 1 month.
When he got injured in an accident, Ganzon told him he is
not needed anymore. He filed a case. Ganzon contend that he
was not an employee but a joint investor. His Employment
Contract is only for him to get a work permit. He won the
case and got an award of Php 60 m from the arbiter. Ganzon
then filed an Appeal and Motion to Reduce Bond. The NLRC
denied the appeal saying that the surety bond required by Art.
223 is unconditional.
It is in this case that the SC en banc settled the rule on supersedeas bond.
All MOTIONS TO REDUCE BOND that are to be filed

with the NLRC shall be accompanied by the posting of a
CASH OR SURETY BOND EQUIVALENT TO 10% OF
THE MONETARY AWARD that is subject of the appeal,
which shall PROVISIONALLY BE DEEMED THE
REASONABLE AMOUNT OF THE BOND in the
meantime that an appellant’s motion is pending resolution by
the Commission.
1. For the purpose of computing the necessary appeal bond, it

shall exclude damages and attorney’s fees.
2. Only after the posting of a bond in the required percentage
shall an APPELLANT’S PERIOD TO PERFECT AN
APPEAL be deemed SUSPENDED.
3. In all cases, the reduction of the appeal bond shall be justified
by MERITORIOUS GROUNDS.
Meritorious ground here means that the appellant has a good case
and that it is in a financial fix. Provisional, means the NLRC can still ask
for a much higher supersedeas bond than the 10 percent cited.
Lets move on.
Q. What is the reinstatement aspect of the Labor Arbiter’s decision?
If reinstatement is ordered by the Labor Arbiter in an illegal dismissal case, it

is immediately executory even pending appeal. Such award does not require a writ
of execution.
Q. Must commissions be included in the computation of backwages?
Commissions may or not be included. Commissions maybe included

depending on whether they are commission, overriding commission or commission
given as a productivity bonus. Only sales commission should be included in the
computation of minimum wage referring to the leading case of Nacar v. Gallery
Frames G.R. No. 189871, August 13, 2013.
But this commission was given to the employee as part of his package. Some
sort of tax shield. In other words, the employee has not to do an extra mile, extend a
limb or work for more in order to get the commission. It is automatic. A given.
Overriding commission is definitely is not included. Ito yung patong sa price.

Sabihin ng employer sa akin 100k dyan. Boundary na. Kung mabenta mo mas
mataas sayo na. This is not included.
Productivity commission, not included. It varies depending on the

performance of the employee. It is contingent on his extending an extra mile. It is
not automatic.
Q. What if the decision gets reversed after the payment of backwages?
Where the executed judgment is totally or partially reversed or annulled by

the Court of Appeals or the Supreme Court, the Labor Arbiter shall, on motion, issue
such orders of restitution of the executed award, except wages paid during
reinstatement pending appeal.
Note that reversal does not always carry an order of restitution. Ngagers.
Q. Is posting a bond stay the execution of immediate reinstatement?
No. The posting of a bond by the employer does not have the effect of staying
the execution of the reinstatement aspect of the decision of the Labor Arbiter.
Q. Can the Labor Arbiter issue a partial writ pending appeal?
Yes. In case the decision includes an order of reinstatement and the employer
disobeys it or refuses to reinstate the dismissed employee, the Labor Arbiter should
immediately issue a writ of execution, even pending appeal, directing the employer
to immediately reinstate the dismissed employee either physically or in the payroll,
and to pay the accrued salaries as a consequence of such reinstatement at the rate
specified in the decision. The Sheriff should serve the writ of execution upon the
employer or any other person required by law to obey the same. If he disobeys the
writ, such employer or person may be cited for contempt. While the perfection of
appeal will stay the execution of the decision of a Labor Arbiter, the partial execution
for reinstatement pending appeal is not affected by such perfection.
Q. Is the award of reinstatement pending appeal by the Labor Arbiter self-

executory?
Yes. An award or order of reinstatement is self-executory and, therefore, does

not require a writ of execution to implement and enforce it. To require the application
for and issuance of a writ of execution as pre-requisite for the execution of a
reinstatement award would certainly betray and run counter to the very object and
intent of Article 223, i.e., the immediate execution of a reinstatement order. The
reason is simple. An application for a writ of execution and its issuance could be
delayed for numerous reasons. A mere continuance or postponement of a scheduled
hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC,
could easily delay the issuance of the writ thereby setting at naught the strict mandate
and noble purpose envisioned by Article 223.
Q. NA What is the period within which to conduct pre-execution conference?
Within two (2) working days from receipt of a motion for the issuance of a
writ of execution which shall be accompanied by a computation of a judgment
award, if necessary, the Commission or the Labor Arbiter may schedule a pre-
execution conference to thresh out matters relevant to execution including the final
computation of monetary award. The pre-execution conference shall not exceed
fifteen (15) calendar days from the initial schedule, unless the parties agreed to an
extension. Any order issued by the Labor Arbiter in the pre-execution conference is
not appealable, subject to the remedies available under Rule XII (Extraordinary
Remedies).
Q. Is writ of execution necessary in case reinstatement is ordered by the NLRC

on appeal?
Yes. While it is now well-settled that a writ of execution is not necessary to

implement the reinstatement order issued by a Labor Arbiter upon a finding of
illegality of dismissal since it is self-executory, however, if the reinstatement order
is issued by the NLRC on appeal, there is a need to secure a writ of execution from
the Labor Arbiter a quo to enforce the reinstatement of the employee.
Q. What is the lifetime or effectivity of the writ of execution?
Five (5) years. In case of partial satisfaction of judgment during the lifetime
of the writ, the Labor Arbiter shall motu proprio issue an updated writ reflecting the
amount collected and the remaining balance.
Q. What is the prescriptive period for offenses penalized under the Labor Code?
As a rule, the prescriptive period of all criminal offenses penalized under the
Labor Code and the Rules to Implement the Labor Code is three (3) years from the
time of commission thereof. However, criminal cases arising from ULP which
prescribe within one (1) year from the time the acts complained of were committed;
otherwise, they shall be forever barred. The running of the 1 year period, however,
is interrupted during the pendency of the labor case.
Q. What is the prescriptive period for money claims?
Prescriptive period is three (3) years from accrual of cause of action. SILP and
13th Month counted on December 24.
Q. Prescriptive period for SH?
3 years from the time of commission or from the time the AIM was over.
Q. What is the prescriptive period for claims for allowances and other benefits?
In cases of nonpayment of allowances and other monetary benefits, if it is
established that the benefits being claimed have been withheld from the employee
for a period longer than three (3) years, the amount pertaining to the period beyond
the three-year prescriptive period is barred by prescription. The amount that can only
be demanded by the aggrieved employee shall be limited to the amount of the
benefits withheld within three (3) years before the filing of the complaint.
Q. What is the prescriptive period for illegal dismissal?
An action for illegal dismissal prescribes in four (4) years from accrual of
cause of action.
Q. What is the remedy of the party aggrieved by an order or resolution of the

Labor Arbiter?
A party aggrieved by any order or resolution of the Labor Arbiter including

those issued during execution proceedings may file a verified petition to annul or
modify such order or resolution. The petition may be accompanied by an application
for the issuance of a temporary restraining order and/or writ of preliminary or
permanent injunction to enjoin the Labor Arbiter, or any person acting under his/her
authority, to desist from enforcing said resolution or order.
Q. What are the grounds of the petition for extraordinary remedies? ACID
The petition filed under this Rule may be entertained only on any of the
following grounds: (a) if there is prima facie evidence of abuse of discretion on the
part of the Labor Arbiter; (b) if serious errors in the findings of facts are raised which,
if not corrected, would cause grave or irreparable damage or injury to the petitioner;
(c) if a party by fraud, accident, mistake or excusable negligence has been prevented
from taking an appeal; (d) if made purely on questions of law; or (e) if the order or
resolution will cause injustice if not rectified.
Q. What are the requisites of the petition for extraordinary remedies?
The petition for extraordinary remedies shall: (a) be accompanied by a clear

original or certified true copy of the order or resolution assailed, together with clear
copies of documents relevant or related to the said order or resolution for the proper
understanding of the issue/s involved; (b) contain the arbitral docket number and
appeal docket number, if any; (c) state the material date showing the timeliness of
the petition; (d) be verified by the petitioner himself/herself in accordance with
Section 4, Rule 7 of the Rules of Court, as amended; (e) be in the form of a
memorandum which shall state the ground/s relied upon, the argument/s in support
thereof and the reliefs prayed for; (f) be in three (3) legibly written or printed copies;
and (g) be accompanied by certificate of non-forum shopping, proof of service upon
the other party/ies and the Labor Arbiter who issued the order or resolution being
assailed or questioned; and proof of payment of the required fees.
Q. What is the effect of Extra Remedy petition on execution proceedings?
Without an injunction execution proceedings will continue.
- but no money collected or credit garnished may be released or properties
levied upon be sold by public auction within fifteen (15) calendar days from
the filing of the petition. If no temporary restraining order or writ of
preliminary injunction is issued within the said period, the money collected or
credit garnished shall be released and/or the properties levied upon sold by
public auction and the proceeds of the sale applied, to satisfy the judgment.
In case of execution proceedings, the Labor Arbiter shall immediately

inform in writing the Commission or the Division where the petition is
pending of the satisfaction of the judgment, and, if circumstances warrant, the
Commission shall dismiss the petition for being moot.
Q. What about judicial courtesy?
The sheriff does exercise judicial courtesy for about 6 months as laid out as
a doctrine in Eternal Gardens versus Court of Appeals (G.R. No. L-50054 August
17, 1988, 164 SCRA 421). Though it can also be declared that judicial courtesy
should not be applied indiscriminately and haphazardly ..” the Court seems not to
have entirely done away with the principle of judicial courtesy..” (Remedial Law III
2006, Herrera, page 303, par. 4) and should very well be applied in the instant case;
In fact in the recent case of Panuncillo vs. CAP (GR 161305 Feb. 9, 2007) the
In fact in the recent case of Panuncillo vs. CAP (GR 161305 Feb. 9, 2007) the
Highest Tribunal complimented a Labor Arbiter for exercising judicial courtesy
when the circumstances so warrant.
So if it is not prohibited but in fact lauded, the labor arbiter and the sheriff
does exercise judicial courtesy. Specially pag may lagay. Tago mon a properties mo.
Q. May elimination or diminution of benefits constitute demotion?
Yes. The illegal and unjustified elimination or diminution of certain benefits

may result in illegal demotion. Under established jurisprudence, there is demotion
where the act of the employer results in the lowering in position or rank or reduction
in salary of the employee. It involves a situation where an employee is relegated to
a subordinate or less important position constituting a reduction to a lower grade or
rank with a corresponding decrease in duties and responsibilities and usually
accompanied by a decrease in salary.
Q. May elimination or diminution of benefits constitute constructive dismissal?
Yes. Elimination or diminution of certain benefits may result in the

constructive dismissal of an employee. Constructive dismissal is an involuntary
resignation resorted to when continued employment is rendered impossible,
unreasonable or unlikely; when there is a demotion in rank and/or a diminution in
pay; or when a clear discrimination, insensibility or disdain by an employer becomes
unbearable to the employee that it could foreclose any choice by him except to
forego his continued employment.
Q. What is the venue for a labor case?
It can be the place of work, the place of business of the employer or the
residence of the employee. There is a new SC decision on this. Before residence as
a venue applies only to OFW. But now it can be the residence of the complainant.
For most of them return back to the province when they get fired and they cannot
sustain litigation for lack of fare. So the SC says, let the companies shoulder the
burden. Between management and the workers, the former has the money. But the
rationale really is that venue is supposed to be for the convenience of the employee
and his witnesses.
Q. Who are liable or obligated to pay in a labor case?
Corporate officers are, unless they have exceeded their authority, as a general
rule, not personally liable for their official acts, because a corporation by legal fiction
has a personality separate and distinct from its officers, stockholders and members.
(Reabs Corporation v. NLRC 271 247 April 15, 1997). Art. 106 – Employers are
solidarily liable with their contractors and sub-contractors for wages.
Q: Who has the burden to prove that wages has been paid?
The employer (Jimenez, April 2, 1996). In controversies between a worker and

employer, doubts arising from the evidence or in the interpretation of agreement
should be resolved in favour of the former. (Triple eight, Dec. 3, 1998)
- Wages should be paid at the place or near the place of work and at least every
one every 2 weeks, except if there is a force majeure.
Q. Who has the burden of proof for the other benefits?
The rule is NBA. Was the payment due to a normal business activity.
Meaning, then employee does not deviate from his normal business activity yet he
is still entitled to payment.
Work for 8 hours = minimum wage, 13th month pay, SILP and regular holiday
pay.
Work over 8 hours is not normal, or work for a rest day or special day, or work
in the grave yard shift or working on your meal periods. These are not normal
business activity.
For these not so normal business activity, it is the employee who has the
burden of proof to establish that he is entitled to the benefits related to such activity.
Q. What is the rule on deceased employees?
Art. 105 – in case of deceased employees, payment to the heir is mandatory,

without the need of intestate proceedings. All the claimants will have to do is to
execute an affidavit and in case of issues, it will be resolved by the DOLE.
Q. Who can effect dismissal?

President, H.R. Manager, project in charge and even supervisors can. Reyes
2017, G.R. 222816. Persons whom the employee looks upon as an officer in charge.
But secretaries and security guards cannot. (Superstar Security).
Q. What if there was misunderstanding, say of a secretary or a security guard
dismisses an employee?
a) The employee must confirm the veracity of dismissal.
b) Having failed to do so, he cannot claim to have been dismissed.
c) The company cannot likewise claim that the complainant abandoned

his job.
The Supreme Court said: “ It is well settled rule that before even determining
whether an employer’s dismissal is for a just cause, it must first be shown that the
employer has committed a positive and overt act of dismissal, without which the
complaint for illegal dismissal must be dismissed outright (Veterans Philippine
Scout Security Agency vs. NLRC 174 SCRA 347 (1989). Likewise, it has been
consistently held (Chong Guan Trading vs. NLRC 172 SCRA 834) that there is no
illegal dismissal where the employee was not notified that he had been dismissed
and that absent any showing of an overt or positive act proving that complainant had
been dismissed, the claim of illegal dismissal cannot be sustained (Security and
Credit Investigation Inc., vs. NLRC GR No 114116 January 26 200. If the
complainants were given the impression by anybody that they were dismissed from
their employment, then they should have clarified this matter with the H.R. Manager
who is the sole authority, aside from the president of the respondent, to carry out
such dismissal. In SUPERSTAR SECURITY VS. NLRC (April 3, 1980 184 SCRA
74) the Supreme Court laid the ground rules on how employees should react with
an ostensible dismissal being given them by an official of the company who has no
authority to do so. The Supreme Court in the said case said: The present case, which
has lasted for almost four (4) years could have been avoided had private respondent
made previous inquiry regarding the veracity of Mr. Gaviola’s instruction and not
simply relied on the bare statement of the company guard.
Q. Can a cause of action not included in the complainant be adjudicated by the

Labor Arbiter? Yes, Cosue 2017 230664. Cause of action should be
ascertained by the Labor Arbiter not from a reading of the complaint alone
but also from a consideration and evalution of the position paper.
Q. Who is liable or an employee’s claim when there is a merger of companies?

The surviving corporation who continues the business acquires the properties
and liabilities of the dissolve corporation. Sumifru 188269.
Q. Aside from, the president and H.R, can other directions or officers be hold
liable?
Elements to attached liability:
a. It must be alleged in the complaint that the director or officer
asserted to patently unlawful acts of the corporation on that the
officer was guilty negligence on bad faith.
b. There must be proof that the officer acted in bad faith. Symex
202613.
Q. Will an employee who executes a quitclaim be estooped from contesting the
legality of his dismissal?
General rule: No. Hobsons’ Choice (means the employee has no other choice
for if he does not execute the quitclaim he will be holding an empty bag whne he
gets out of the company. (Doble 215627).
Exception: a) proof of voluntariness ex. He is the one who asked for

separation pay.
b) No found or deceit ex – closure of business was legitimate.
c) Amount is reasonable Doble 215627, say 50% of what he is
entitled prescriptive period of SILP? Not 3 years.
Q. What happen next? In the instance where there was neither dismissal by the
employer, non abandonment by the employee, the proper remedy is to
reinstate the employee to his former position without backwages. Borja
218384. But note Egon Ergonomics 19563 Dec. 13, 2017.
The Ergonomic ruling apparently reverse Borja 218384, July 3, 2017
which states: “It is well to emphasize that in a case where the employee’s
failure to work was occasioned neither by his abandonment nor by a
termination the burden of economic lost is not rightfully shifted to the
employer. Each parts must been his own loss. Here the complainants cannot
and do not want to go back to work because of strained relationship.
Ergonomic was promulgated Dec. 13,2017 while Borja was on July 3, 2017.
In case reinstatement is not possible, is separation pay forth coming?
Accepted reason for not reinstating:
a) Long period of time T

b) Inimical to employee’s interest - I
c) Not feasible F
d) It is unjust because of supervening event U
Classic example here is when there is already a new employee
hired to fill in the vacant position.
e) Strained relationships. S
Q. What is the rule on “Strained Relations”?
This doctrine should not be used so indiscriminately as to bar the

reinstatement of illegally dismissed workers, especially when they themselves have
not indicated any aversion to returning to work. It is only normal to expect a certain
degree of antipathy and hostility to arise from a litigation between parties. So an
employer cannot just say to the employee, you can no longer come in and I will just
pay your separation pay. Quijano [292 SCRA 109 (1998)]. Reinstatement must still
be the general rule and not the exeception.
Q. Can the employee demands to confront the witness against him?
PNB 194944 – his right is merely to refute the allegations against him.
He can do so using an affidavit.
Q. Does he has the right to participate in the selection of the member of

committee that will investigate him?
He does not have. Bravo. 198066 - He can only question their partiality
or bias. But he cannot question their constitution.
OFW
Let us discuss Ipam vs. Arriola 2016 – This refers to what law governs
overseas workers. Arriola applied for a job from the internet and he was hired by a
Canadian firm. The local recruitment agency made him to sign a contract which
was then sent to Canada for approval. He was told to coordinate with a local
recruitment agency. He was deployed abroad but after 3 months he was informed
that he is being terminated due to the global financial crisis. Upon returning to the
Philippines, Arriola filed a case before the NLRC for the unexpired portion of his
contract. The local agency’s defense is that the laws of Canada allows his dismissal
using the global financial crises as the cause. Since his contract was approved in
Canada and he worked in Canada, then Canadian laws apply to him following the
principle “lex loci celebrationis”
Issue? What law governs the contract of Arriola?
The law of the Philippine applies since the Constitution (Art. 3, sec. 3)
provides that the State affords protection to laborers, local and overseas.
Foreign laws apply to OFW If:
a. The contract provides that foreign law apply. If there is no statement that
foreign law will apply, then it will be the Philippine law that will govern.
b. The foreign law is not contrary to our laws, morals, good customs, public
order and public policy. Otherwise, Philippine laws apply.
c. The foreign law is proven pursuant to the Rules on Evidence. The law must
be duly authenticated by an authority (by a lawyer) of the country
concerned and certified as such by the Philippine Embassy. Otherwise,
Philippine laws apply.
d. The contract should have been processed through the POEA. Art. 18
provides that no employer may hire a Filipino worker except thorugh the
POEA. Otherwise, Philippine laws apply.
In the case of Arriola, the contract does not specify that Canadian law will
apply. Also, law which allows termination of employment due to the global financial
crises is contrary to our law. Note 298, Installation of labor saving device,
Redundancy, Retrenchement to prevent losses or Closing of business operation
(IRRC) does not cover global financial crises. The whole world may be in a financial
turmoil but this does not mean that it is affecting. Some companies even took
advantage of the crises to earn more. So Arriola was deemed to have been illegally
terminated. So what law governs OFW? It is R.A. 8042 and not the Labor Code.
This is so because the OFWs are contractual employees whose rights and obligations
are governed primarily by the Rules and Regulations of the POEA and, more
importantly, by R. A. No. 8042. (Gu-Miro vs. Adorable, G. R. No. 160952, Aug. 20,
2004).
Is a dismissed OFW entitled to reinstatement or separation pay? No. He is

entitled to:
a- Reimbursement of his placement fee with 12% interest p.a (Sameer

170139)
b- Salary for the unexpired portion of the contract with 6% p.a.
c- Reimbursement of repatriation expenses such as return airfare 6%.
Q. Can a signed Employment Contract confer jurisdiction even if the person

has not started working?
Apparently not. The execution of a contract binds the prospective employer

and the prospective employee but the employer-employee relationship begins only
when the employee starts working.
The case is Santiago 162419 where the complainant produced a signed

POEA approved employment contract but was not deployed overseas. The captain
of the vessel whom he was boarding apparently received an information that once
Santiago was allowed to board the ship and reached Canada, he will jump ship like
his brother who jump ship in Japan. This case became controversial because there
was a provision in the contract of Santiago which says:
“employer - employee relationship shall commence only, upon the

seafarers actual departure from the port of hire”
Funny because the confidential information emanated from the wife of

Santiago to whom he declared that he is leaving for good. Thus, the captain
disallowed Santiago from boarding the ship. In the Santiago case, the SC ruled that
the Labor Arbiter has jurisdiction even if the captain has not yet exercised his control
over Santiago because Section 10 of the Migrant Worker’s Act confer jurisdiction
to labor arbiters for money claim by virtue of a “contract involving Filipino workers
for overseas employment. The Santiago case is an exemption to the rule. But take
away the Migrant Worker’s Act and talk about individuals who are not for overseas
employment means that contract will not confer jurisdiction. Again, there can be
contract but no exercise of control and there can be control without contract. So, can
a signed Contract of Service confer jurisdiction even if the person has not started
working? General rule No. Exemption for money claims involving workers for
overseas employment under the Migrant Workers Act. Unless of course, the contract
reserves the control to the individual, then you apply the Possession Doctrine.So
what is the remedy if a signed contract is not honored by the employer? Do you file
an illegal dismissal case before the NLRC? Of course not, the remedy is Specific
performance before the regular courts or sue for damages.
Joint and solidary obligation of local agency and foreign principal.
Private employment or recruitment agencies are jointly and severally liable with its
principal, the foreign-based employer, for all claims filed by recruited workers
which may arise in connection with the recruitment agreements or employment
contracts. (Sevillana vs. I.T. [International] Corp., supra; Empire Insurance
Company vs. NLRC, 294 SCRA 263).
Q – What is Constructive dismissal? – dismissal in disguise. No expressed words

saying that you are dismissed but the employee’s actions are construed otherwise.
That is why it is called constructive dismissal.
Ex. a) indefinite suspension

b) changing the regular states into casual, contracted,
fixed term etc.
c) Demotion on discrimination of salaries and benefits.
d) Freezing not giving him work. Making him a virtual prisoner.
e) Floating status beyond 6 months or under DO 174 floating status for
3 months.
f) non payment of salary without reason or no reason given.
g) reduction of work days.
h) any other acts which force the employee to resign.
Q – Who has the burden to prove that there is no constructive dismissal. (Aguana
347)? An employee who claims he was forced to resign must prove his allegation
other than force resignation, the employee has the bonder to prove that what he has
done is management precaution.
Q – What happens if there is constructive dismissal?
Bustamante November 28, 1996 –
a. Payment of full backwages.(Garcia 2345632).

b. Payment of moral damages where the dismissal was attended by faith on
found on constituted as an act oppressive to labor.
c. Reinstatement depending or whether, there emerged a strained relation,
between the employer and employee. (Hernandez August 10, 1989).
d. Payment of separation pay if the relation was straines.
We now go to the State Insurance Fund (SIF) Art. 172, the SSS and the GSIS
under special laws.
SIF, SSS and GSIS are lengthy subjects. But a question, one or two, does
appear in every bar exam. For lack of material time, we will just go through the
basics.
Three recurring questions in the bar:
a. Is the individual covered by the program?

b. Is the condition covered by the program?
c. Has the claim prescribed?
Is the individual covered, you usually determine that using the Test Doctrines-
(control test or economic dependence test) and see if there is employer-employee
relationship. If there is no employer employee relationship, the person is not covered
by the SIF SSS or GSIS. Questions in the bar focuses on this.
Note: The findings of the NLRC is binding on the SSS Commission under the
principle of res judicata.
Employers? –foreign or local, including religious organizations. BUT not

when the employer is in an alien vessel and the vessel is outside of the Philippines
(so filipino seafarers are not covered) and the employer is a foreign government
(filipinos working in the US Embasssy are not covered).
Now, is the condition covered by the SIF, SSS or GSIS? you usually
determine if the condition is work related or not, but the rule varies for SIF, SSS and
GSIS.
Has the claim prescribed? Prescription of claims, it varies. We will talk about
them later.
Let us talk about the benefits. The common benefits for SIF, SSS and GSIS
are:
SIDD—sickness benefits
injury or accident benefits
death or funeral benefits
disability or pension benefits.
These are the common benefits to SIF, SSS and GSIS.
A person in the private sector gets his SIDD both from the SIF and the SSS. .
If he is in the public sector, he gets death benefits from the SIF and also the GSIS.
For easy memorization, mastery and for easy attack on bar questions, it is best
to study the difference among SIF, SSS and GSIS.
- Who pays the contributions?
a. SIF contributions are paid by the employer. Whether government or

private, the employer has to insure the employee to compensate him for
SIDD under Article 172 of the Labor Code.
b. SSS and GSIS contributions are paid by the employer and the employee.
- What is the basis of the benefits given to the employee?
a. For SIF, they receive benefits by reason of their membership.

b. For SSS and GSIS, they receive benefits by reason of their contributions.
Again, the reason why benefits come only from SIF if the death or injury
is work related, while in SSS and GSIS the death or injury may not be work
related.
If claiming:
SIF – there are no age limit.
individuals working in the government can claim.
even members of the AFP, PNP and the judiciary which are not
covered by the GSIS can claim.
even casual employees which are not covered by the GSIS can
claim.
domestic helpers and self employed are not covered by SIF.
SSS - only individual not over 60 years old can claim. (This is not a
requirement in SIF or GSIS.
Domestic helpers and self employed can claim.
GSIS – individual working in the government whether appointed or elected

including barangay. (plantilla position not job order positions).
Excluded: Contractual employees (job orders lang not plantilla)
Members of the AFP, PNP and members of the Judiciary.
What are the benefits?
SSS sickness benefit – allowance equivalent to 90 % of salary or wage

for a period not longer than 120 days. 4 months that’s it. Hindi naman
hanggang may sakit. Otherwise hindi na mag papagaling yung tao.
Requisites:
a. 3 months contributions
b. Confined for 3 days – pag hindi na confine, sa bahay lang, hindi puede
mag claim.
c. Notice to the employer or SSS within 5 calendar days of confinement.
d. Exhaust sick leave with full pay.
- Obligation of employer to sickness benefits?

Pay the allowance on the 15 and 30th day of the month.
Get reimbursement from SSS provided he notified SSS within 5 days after
confinement and the claim is not made after a year.
Note the prescriptive period:
a. For the employer to claim reimbursement of what he advance to the

employee from the SSS- 1 year.
b. For the employee to claim from the employer SSS allowance - 20 years.
Provided he notify his employer of his confinement within 5 calendar
days. Notice is claim are different things.
For SIF – not based on contributions.
For SSS- Remember this. 3 3 3 3 10
3 months contributions means maternity benefits.
3 months contribution means sickness allowance.
3 months contribution means funeral benefits
3 years contribution means disability or death benefits.
10 years means retirement benefits
For GSIS – not based on contributions, except:
15 years means for retirement benefits.
Work related or not?
For SSS or GSIS, it does not matter whether the sickness, injury or
death is work related or not.
For SIF
The sickness is: ORR
a. In the list of Occupational List of Diseases covered by SIF.

b. Work conditions Results in the sickness.
c. Work conditions increase the Risk of the sickness.
Examples:
Cancer in general is not included in the list of Occupational Disease. So

not covered by SIF. But if the conditions of the work Results in the cancer
or the conditions of the work increased the Risk of cancer, it is covered.
Lung cancer for exposure to toxic chemical by factory workers in a

chemical factory. But, even if he works in the chemical factory but was not
exposed to the toxic chemical, he is not covered.
Q. Is a medical expert needed to prove that the conditions brings forth the
sickness or increased its risk?
The law is liberal on this. In Salalima 146360, the SC said Medical

opinion to the contrary can be disregarded especially where is some basis in
the facts for inferring work connection. To prove connection, logic or
common sense lang. It will help if a government physician will give his
opinion. But the law does not require for what the law require is liberality.
Pero wag naman sobra.
Ex. Teacher who does overtime and claims sickness benefit for
hepatitis. Ito yung kain ng kain ng isaw. There is no direct causal relation
between doing overtime and hepatitis. Unless hepatitis is listed in the list of
Occupational Disease. Not covered.
But the conditions leading to the sickness maybe absent but the work
environment may increase the risk of contracting the sickness.
Cardiovascular disease – You get these disease by eating food with too
much cholastesterol. It is not compensable unless your job entails you to
eat everyday, lechon, paksiw na lechon, chicharon na lechon. But it
becomes compensable if the risk of contracting it is increased by your job.
Cardiovascular disease for long overtime and grave yard shifts. These
conditions increase the risk of getting the disease.
Again remember Salalima.
a. If there is acute exacerbation --- the MMDA who suffered heart

attack when a motorist he flagged down draws out a gun and poked
it at him. Or when he is a seaman at sea who missed his family
suffered heart attack. Aniban 116354.If there is an unusual
increase in the strain of work, like there is continuous overtime
ordered by the employer, sleep deprivation, this increase the risk
of heart attack. This becomes compensable specially when the
heart attack within 24 hours from the unusual increase in the strain
of work.
Again, remember Salalima. Doctors opinion are not necessary. Liberal

construction of the law in favor of the employee.As long as there is somehow
a link between the work condition and the sickness, then it is covered.
Question: What are the other defenses by the State Insurance Fund?
IWN
a. Intoxication.
b. Willful intention to injure or kill oneself
c. Notorious negligence. Not drinking his medicine when the
company provides him the medicine. Not when he cannot afford
to buy one. Or when a person bathe in the shallow part of the river
when he does not know how to swim. He was eventually rescued
but he suffers heart attack.
INJURY OR DEATH BECAUSE OF ACCIDENT
When is an injury or death compensable by the SIF?
Performance, Dual Purpose, Proximity Rule – PPP
Benefit, Engagement, Comfort – BEC
Was the employee performing his job, what is the purpose of the activity of
the employee (was it to perform his job), where did he incur the accident (was it in
the workplace, or going to work or going home) remember PPP.
Also was the activity for the benefit of the employer, was he engaged on a
special errand, or did he just stop to eat or drink. BEC.
PERFORMANCE RULE Gen. Rule – compensable if the accident was while

in the performance of his official function. If it was in the performance of an official
function, whether the employee is in the office or out of the office it does not matter.
But even if he is in his place of work. if he is not doing an official function then his
compensability is in question. The case of the supervisor and the secretary where the
secretary was being taught by the supervisor to drive using the company car without
the knowledge and consent of the boss. They were able to do this because the boss
is out of the country. They are not compensable.
Compensation for accidents may involve intentional acts done by a third
person. The case of a drunk shooting a security guard on post.
Dual PURPOSE RULE – consider as compensable injuries sustain while on

trip for the benefit of the employer even if in the course thereof, the employee
pursues also a personal purpose. Driver who, going back after unloading the cargo,
nag sakay ng puwede nya iuwi sa pamilya nya. (ECC Resolution No. 99 08 0469
dated August 31, 1999).
PROXIMITY RULE – Under this rule, he may not be in the performance of

his official function but he is about to do his work or has just done so. This means
that from home, the employee is going to work or from work, he is going home.
Alano G.R. No.L48594—Even if not in the premises of the employer, if she

was at a place where her job necessarily required her to be if she was to reach her
work on time, she is still compensable.
Alano was a principal. From his house, he is going to work and was hit by a
truck. The term used by the SC is that he came from a place REASONABLY
PROXIMATE to his place of work. From house to work. Or from work to house.
Like out side the gate of the office. But take note of the CONTINUING DOCTRINE.
Wag ka hihinto para sunduin girlfriend mo. The act of the employee of going to or
coming from the house to the workplace must have been a continuing act, that is, he
had not been diverted from it by any other activity or he had not departed from his
usual route to or from his workplace.
Unlike while you are in the performance of your function, where you may
have a diversion, as long as the dual purpose rule apply, dito the only purpose you
have is to go to office or to come home.
But REASONABLY proximate means malapit talaga sa place of work. Take

note of the distance. It does not automatically apply just because you are going to
or coming from work. It is only when you are already in the premises of the
employer or when you are reasonably proximate, at the gate, 1 kilometer away or
coming from home. Not when you are coming from the province or has left the office
to go to the province where you are 50 kilometers away.
BENEFICIAL TO EMPLOYER – A mechanic one night was called by the

driver to fix the truck. (Afable May 27, 1963). The mechanic was already off-duty
but he still assisted the driver. He suffered injury in an accident while doing so. The
Court ruled that he is covered by SIF for while he was doing a job not in the
performance of his function (because he is already off duty) he still doing it for the
benefit of his employer. Another example is an employee drowning to save
properties of the employer which were swiped by flood waters. Paez March 30, 963.
This are situations under the Beneficial to the Employer rule.
ENGAGEMENT RULE Another exception is when the employee is doing a

a personal or a special errand for the employer. He is not in the performance of an
official function but still he was engaged by the employer for a personal or a special
errand. Inutusan mg dala ng bulaklak sa girlfriend.
24 HOUR DOCTRINE. Note the case of policemen and soldiers.. By the

nature of their function they are on duty 24 hours a day. Even if they are off duty if
they are called to do police services, they are compensable. They are subject to call
at any time by their superiors and by any citizen who needs their help. Maski away
ng mag asawa kinakatok sila sa bahay. That is the reason why, their retirement agent
is only 56. But note Valeriano June 8, 2000.
Requisites:
a. Police or soldier.
b. Not in duty.
c. Doing police or soldier work.
Hindi puwede kung ano ano lang ang ginagawa. Tinawag ka ng kapitbahay
mo dahil may hostage situation. Na patay ka. Compensible. Valeriano was a fire
truck driver. Off duty, doing something personal, he met an accident. He claims
compensation under the SIF citing the 24 hour rule that he is on call 24 hours a day.
The Court ruled “there was no reasonable connection between his accident and his
duty as a fire truck driver. The 24 hour rule means he can be called anytime. But it
does not mean he is compensable for the whole 24 hours even if he was not called
to do his duty.
COMFORT DOCTRINE - another exception to the rule. If he goes out,

during his working ours, to minister to his comfort like thirst, hunger to protect
himself from cold, he is still compensable for injury or death. Lumabas during lunch
break para kumain - apply the personal comfort doctrine.
Miscellaneous coverage:
Covers field trip, intramurals, outings and picnics initiated or SANCTIONED

by the employer. Accidents befalling employees on those occasions are
compensable. (ECC Journal. Vol II Nos. 1 and 2 1990 p. 26). Also where it is the
employer who provides the Transportation as an incident to the employment.
ONE CLAIM RULE
In one case, the Court ruled that a security guard can claim from the State
Insurance Fund or from the person who shot him. It is exclusive. He can only claim
once. If he claims from the person who shot him, he can no longer claim form the
State Insurance Fund. If he claim damages from the person who shot him, he can no
longer claim from the State Insurance Fund. This is by provision of the law, Article
179.
If his injury is by reason of the negligence of his employer, can the employer
demand that the employee seek his relief from the State Insurance Fund? No it is the
option of the employee. But he can put up a defense that he was not at all negligence.
If he succeeds in evading liability, then the employee can still go against the State
Insurance Fund. Remember. Under the SIF, the employee gets compensation even
if the employer is not negligent. This make it more easy for the employee. If he goes
against the employer, he must prove his negligence.
Can the employee claim compensation even if the injury was incurred abroad?
Yes, by express provision of the law.
- Dependents?
SIF does not talk about dependents. But for death and disability, it is the
dependents under the rules of succession. SSS talks about dependent but they are
akin to the rule of succession. So do not read this anymore. Apply the rules on
succession. In GSIS, almost akin rin sa rules of succession but there is a provision
for a designated beneficiary.
Dependents for GSIS –
Primary
a. dependent spouse until she re marries
b. dependent child including the illegitimate – must be below 21, dependent. They
get pensions until they are 21 or no longer dependent. They get the lump sum and
pension.
Secondary?
a. Dependent parents (compulsory heirs) –lump sum

b. Designated individuals if there are no beneficiaries. –lump sum
Note on the designated beneficiaries. This is not included for SIF and SSS.
There can be designated beneficiaries only if there no primary beneficiaries or
parents. Usually, this are the common law partners or the girlfriend that lives with
him and depends on him for support. Hindi puwede stranger unless he is living with
the employee and depends on him for support.
For pensions, the spouse must not re-marry and the children must not be
gainfully employed or be 21.
Question: Pedro is single but is already 64 years old. He is already receiving

his pension with the SSS for he retired when he was 60. He died when he reached
65. But a week before his death, he marries an 18 year old girl. The girl then ask SSS
to give her pension. SSS declines for it is obvious that the marriage was only
intended by the girl to get SSS pension. Resolve.
Dycaico 161357 – the presumption that surviving spouse whose marriage to SSS
members were contracted after the latter’s retirement entered into the marriage for
the purpose of securing survivor’s benefits is not necessarily or universally true.
Remember the school teacher and the student who despite the disparity of their age
fell in love with each other. Indeed love has its reason which reason cannot
understand. Pedro’s wife should get the pension.
Permanent disability GSIS
a. Not given if the employee is guilty of grave misconduct, notorious

negligence, habitual intoxication or with willful intent to commit suicide.
Rules:
a. He gets pension for life if he gets permanently disabled while in service.

Work related or not. No problem.
b.
c. Pension for life if he gets permanently disabled while no longer in service:
-provided he is separated within 5 years from the disability and has paid 3
years contribution. No 3 years contribution, lump sum only.
-separated outside of 5 years from the disability but has paid 15 years of
contributions, pension for life. No 15 years, lump sum only.
Pension for disability stops when the employee becomes employed. It

continues again if he reach his retirement age.
Laws on retirement are always liberally interpreted in favor of the retiree. For
humanitarian purpose. To insure efficiency, security and well being of government
employees.
a. For you to have pension, you must at least be 65 years old with 15 of
service.
b. For less than 15 years, at least separation benefits. – But the employee can
be given the opportunity to continue service even after 65 years just to
complete 65 years. Say he is 64 years old but has only served 14 years. He
can be extended for a year for retirement benefits.
But note the discussion in Rabor Case 244 SCRA 614. A person 64 years
old who has served only for a year cannot demand extension for 14 years.
This is absurd. Thus the SC ruled that extension of retirement is left under
the discretion of the head of the agency.
If an employee opts to complete the 15 years, he gets the pension. If not,

he gets separation benefits.
Separation benefits: 1 month average compensation for every year of

service. Given if: the employee has rendered 3 years of service but less
than 15 years and is 60 years old.
Will it matter that the employee was dismissed for a cause? No. He still
gets it unless the decision says he forfeits all government benefits.
What if he resigns? He gets separation pay by express provision of the law.
What if he was removed because of the abolition of his position, office or

because of re-organization? In this case he gets only ½ of his average
monthly income per year of service. This is known as involuntary
separation covered by section 12 of PD 1146.
- Survivorship – Pension for life equivalent to 50% of the pension of the

employee. The children, while dependent, gets additional pension of 10%
until they become dependent.
Prescription:
a.SIF prescribe in 3 years
b.SSS prescribe in 20 years
c. GSIS prescribe in 4 years.
Extended MATERNITY LEAVE R.A 11210
- gave birth after March 8, 2019.

- If terminated--- provided the termination occurs not more than 15 days after
her service is terminated. The law does not qualify if it is legal or illegal
termination. The fact is the leave already accrued. But it appears to not cover
those who resigns. But I would say that it has already accrued. Kung yung
tinangal nga eh meron dahil nag accrued na di lalo na yung nag resign. Apply
Article 4.
- 105 days full pay.
- 30 days extension without pay provided there is notice to the employer 45
days before the leave ends, unless it is a medical emergency.
- Does not distinguish normal from ceasarian.
- Solo mothers gets an extra of 15 days making it 120 days
- Unlimited, no pregnancy limit of 4
- Exempted:
a. Distressed establishment
b. Ten employees or less
c. Three million or less capital
d. Already provides maternity leave
- if it is a miscarriage, then it is only 60 days full pay. Hindi naman ina alagaan
yung tatay. Solo parent, additional 15 days making it 75. It is not in the law
grant it anyway.
- Father? 7 days can be transferred to them, meaning the daddy can apply for
Maternity Leave of 7 days.
- Caregiver? Yes, if he or she is the transferee of a Maternity Leave by one who
is not married. Conditions:
a) The father is dead, absent or incapacitated. This provision will not apply if
the mother is not married.
b) The person is designated as an altenate cargiver.
c) Relative by fourth degree of consanguinity or partner of the mother who
shares the same household.
Paid by SSS, -married or single, no limit unlike in paternity leave, 105 days,
includes a miscarriage.
- the former provision of the Maternity Law applies:
Q. Can maternity leave be used before the date of birth?
Yes. Provided with notice to the employer. For the mother to prepare.
Q. Can maternity shortened?
Not by the employer. But the employee can shorten it for she is already paid
by SSS.
Q. What if the employer was not able to pay the 3 months contribution, within the
12 months period prior to the birth, will the employee not get the benefit.
a. If the employer is at fault the employee still gets maternity leave but it will
be paid by the employer not the SSS.
b. If the employee is just a new employee, then she does not get anything.
Q. What about probies, casual, or project based employee?
The SSS law covers all employees, weather permanent, temporary or

provisional. However, the law does not cover contractual but I will include them
anayway.
Q. What if the employer did not register the employee with the SSS for he is just a
proby?
Non- registration of an employee with the SSS is not prejudicial to his claim.
(Art. 167 (g) in relation to Art. 168. P.D. 626 as amended). In this case the employer
pays.
- In case of death of the mother, the leave accrues to the father or the caregiver.
- In cases where the salaries of mothers are higher than the actual cash benefits,
given by the SSS, the employers are required to give the salary differentials.
Assuming the salary is 1 million a month, but SSS puts a threshold, say 30k,
the employer pays the differentials.
- Full payment advanced by the employer within 30 days from the filing of the
leave.
Penalty:
20k to 200k and or imprisonment of not less than 6 to 12 years
s) Lets go to Sexual Harassment. 7877
SH not SH
-action is one-sided -reciprocal
(Sexy – Macho, Ma-el – Sobrang- el, there was consent or conformity, no SH).
SH not SH
- victim feels angry/sad/bad -victim feels good.
SH not SH
-victim feels powerless –victim is in control
SH not SH
- victim losses self-respect - no effect
It is just a question of WHO? and HOW?
First let me ask you, “Who can commit Sexual Harassment?” Those with an AIM”.
AIM that is with: authority, influence or moral ascendancy.
In the work place, it can only be committed by the boss, president, manager,
supervisor who has authority, influence or moral ascendancy over a worker
Thus it may not be legally possible for a worker to commit sexual harassment
against a co-worker.
Although it is Gender and age insensitive it is a Power-based crime.
So that’s the WHO? now we will go to HOW?
As to how?, I have dissected RA 7877 in two forms:
FORM 1 : “QUID PRO QUO” (this for that).
FORM 2: HOSTILE ENVIRONMENT
In a work place FORM 1 is elaborated as when sexual favor is asked or made as a

condition in:
a) giving employment
REVIEWER FOR THE HANDICAPPED by Atty. Pearlito B. Campanilla (Good for the 2019 Exam
only)
b) granting promotions
c) giving benefits and privileges
This is why it is called “quid pro quo”. It is a latin phrase which means “this
for that” or “you scratch my back and I will scratch yours” or “You show me yours
and I’ll show you mine”.But then it may not necessarily refers to going to a motel
room and having sex.
WHAT IS A SEXUAL FAVOR?
Sexual favor does not mean the consummated act itself. It may just be asking
for a a kiss, a hug, touching of private parts and, not necessarily going to bed. We
will ask volunteers later to demonstrate these points. In fact there was a case where
a boss told a female employee “treats me right and I will treat you right”.
This phrase “ treats him right” was already ruled by the NLRC as already
constitutive of SH. In another case, a supervisor invited a worker to go to starbucks
to have coffee. Yet the affair focused on discussing the worker personal life on
Whether he already has a girlfriend? Did they already have sex?, Is he willing to go
with her? etc.
The NLRC courts ruled these questions also constitutive of SH.
As to FORM 2 –Hostile Environment can be
a) Physical harassment
b) verbal harassment
c) non-verbal harassment
Physical harassment can be by:
- malicious touching of body parts
- malicious pinching
- hugging
- kissing
- touching of private parts
- sexual assault
Verbal harassment can be done by:
a) sexually laced discussions- just like my opening statement that contains words
like “her-ass”, “ur-anus” etc.
b) sex jokes –
c) sexual remarks – “mahilig, makati, malandi, malibog, palakan-ta”.
d) sexual insults – “manhid, baog, maliit ang hinaharap”.
e) obscene talks – “patikim ng p-na, pasubo ng b-ko, masarap ang t-koy”.
f) sexual proposition – “lets save water, lets take shower together”
g) inquiring on one’s sexual affairs – “ano ginawa ninyo ng boyfriend mo
kagabi?” “virgin ka pa ba?” sino na ka virgin sayo?
h) obscene phone calls – “loud and persistent breathing”
i) insisting that one wears skimpy clothing – “mag mini ka naman or hindi ka
ba mag ba braless? (a teacher who asked students to wear formal attire
meaning mini-skirts).
j) remark on one’s sexual orientation – “ puta, bakla, tomboy, badaf, tigbak.”.
By the way, for sexual jokes, remarks and discussions, it is enough that
they be uttered within the hearing of the victim and he or she feels annoyed or
irritated. In fact, even if its not the intention of the joker to harass, there is still
SH depending on the effect to the victim.
SH is dependent on the effect to the victim not on the
intentions of the offender.
We now go to non-verbal harassment, may I ask for two volunteers a

male and a female.
Indecent dress/es
Indecent exposure
-( unzip his fly).
Secret looks directed at private parts
(pa-simple lang)
Malicious leering or ogling
(garapal na)
Wolf whistle
Lip smacking
Animal noises
Offensive body gesture –
IMPRISONMENT of not less than one (1) month but not more than six (6)
months plus payment of actual damages.
Delay in filing the case for sexual harassment. Any action arising from sexual
harassment shall prescribe in three (3) years. (Section 7, Republic Act No. 7877).
According to Libres vs. NLRC, [G. R. No. 123737, May 28, 1999], a delay of one
(1) year in instituting the complaint for sexual harassment is not an indicium of
afterthought. The delay could be expected since the respondent was the
subordinate’s immediate superior. Fear of retaliation and backlash, not to forget the
social humiliation and embarrassment that victims of this human frailty usually
suffer, are all realities that the subordinate had to contend with.
Strictly speaking, there is no time period within which he or she is expected to

complain through the proper channels. The time to do so may vary depending upon
the needs, circumstances, and more importantly, the emotional threshold of the
employee.
Who does the administrative investigation?
7877 says that a CDI or Committee on Decorum and Investigation must

be constituted by the company coming from the management, the union, the
supervisor and the rank and file. The CDI will conduct the investigation of
alleged. It is not only the HR who conducts the investigation by express
provision of the law.
UNION
The worker’s right to self organization is guaranteed by the Constitution and

the Labor Code. Art. 3 SSCC.
Magic words: It is a Constitutional right to FJA form join or assist unions for
CBA collective bargaining agreement and MAS mutual aid and support.
How many employees in a company is needed? 20% of all employees in the

bargaining unit. 20% refers not to all the employees, but only to the employees that
are qualified to join a union. Kung sampu kayo, at least dalawa. Kung dalawa kayo,
mag isa ka puede na.
When does a union acquire the rights and privilege granted a legitimate labor
organization? Upon the issuance of the certificate of registration by the DOLE. They
cannot be a rouge union. They must apply. Comply with the requirements i.e list of
members, list of officers, Constitution, By laws etc., they can be approved or then
can be required to complete the requirement. No denial.
But application for registration can be dispensed with and rights and privilege
can be obtained by mere NOTIFICATION to the DOLE that the labor organization
is a chartered union.
So in this sense, there are two kinds of union an -independent union and the
other is a chartered union.
Chartered union- issuee of charter certificate by a duly registered federation

or national union. BUT, their legal personality starts when their existence is reported
with the Regional Office of the DOLE. Application for registration is different from
Notification.
Registration means submission of documents plus the number of employees

must be 20% of all the employees in the bargaining unit. Ito yung isang question sa
bar exam. Notification means only submission of documents before the DOLE like
Constitution and By laws etc. No other requirements.
The magic words of the SC “… it is a state policy to foster a strong and united
labor movement. To facilitate the growth of chapters, their creation must be made
simple and easy.
An independent union can only apply for a CE when it is registered. A charter

can apply for CE upon the submission of the documents before the DOLE.
Distinguish a charter union from an affiliate union--- a charter is a labor

organization which became a union because it was issued a charter. An affiliate is a
labor organization which is already a union as it has already registered with the
DOLE and afterwards affiliated with a Federation.
Can a federation charter more than 1 union in a company? Yes. Although it is

stupid to do so. And a ground for the other union to disaffiliate.
May the rank and file union and the supervisor’s union join the same
federation? In Atlas 96566, it was prohibited. But under Article 245, as amended by
R.A. 9481, they can already.
The registration, in case of independent union, or the rights and privilege of a

charter union, may be CANCELLED by the BLR (Bureau of Labor Relations), after
due process, on the following grounds:
ANOMALY IN ITS COMPOSITION (247) and VIOLATION OF RIGHTS

and CONDITIONS OF MEMBERSHIP (250)
247
a- MFF (misrepreseantion, false statement or fraud, in other words LYING

in the documents concerning the CREATION of their organizations. This
means they lied in their Constitution and By laws, minutes of ratification
of the Constitution and By laws and the list of members who took part in
the ratification.
b- MFF or lying in the election of officers, minutes in the election of officer
or list of voters.
These grounds are exclusive. Holding an illegal strike, mis-counduct, no
matter how serious, by the officers, will not result in the cancellation of
the registration. Being a Cabo ( a union that acts like a labor only
contractor) or when a union sides with the employer, still this is not a
ground for cancellation.
For easy understanding 247 speaks about lack of DCM:
Lack of:
a. required Documents
b. unlawful composition of the union members.
c. lack 20% membership
Who can initiate the cancellation?
a. A party in interest – those who rights may be affected by the existence of

the illegally constituted union.
b. The employer. Progress Development Feb. 19, 1997.
There are about 16 rights and conditions of membership under Article 250.
Violation of any or all of these rights and conditions can also a ground of cancellation
of registration. If the rights as contained in Article 250 has been violated:
a. party in interest can file for the cancellation of registration or

b. if the issue involves the entire membership of the union, the complaint
should be supported by at least 30% of the members of the union. If they
are 2/3, they can dissolve the union.
Can the union impose fines on members? Yes 250. But it must not also be
arbitrary and excessive. If it is, the member concerned can file the cancellation.
Is there an entrance fee, before one can become a union member. Yes. 250.
But the initiation fee must not be arbitrary (meaning there is a reason like to be used
the printing of ID etc) and it must not be excessive. If it is, the member concerned
can file the cancellation.
Who are not eligible to be members? Individual who belongs to subversive

organization or who is engaged in subversive activity. NO labor organization shall
knowingly admit as member or continue as member individuals who belong to
subversive organization or who is engaged in subversive activity ----. This is the law.
Wag mon a lang alamin. Knowingly is the word. If the union does so, then this totally
involves the entire membership of the union, the complaint should be supported by
at least 30% of the members of the union.
Who are not eligible to become union officers? A person convicted of a crime
involving moral turpitude. If the union does so, then this totally involves the entire
membership of the union, the complaint should be supported by at least 30% of the
members of the union.
Can the employer file a cancelation under 250? No, he is not a party in interest
for it concerns rights and conditions of membership.
Can the members dissolved the union? Voluntary dissolution of the
membership. Art. 246. 2/3 votes by all members.
In case such a petition is filed, will it suspend a pending petition for election?
246. Obviously not. The election will push through. Otherwise it will be easy to
suspend a CE because it is easy to file a petition for cancellation. Will it not be
considered a prejudicial question? No by express provision of the law. Art. 246. But
even if the union wins its registration can still be cancelled.
What happens to a CBA which was concluded by a union whose registration

was cancelled? Nothing. The cancellation will not invalidate an otherwise valid CBA
which the union entered into before the cancellation. Azucena 221
The cancellation has no retroactive effect.
Basic policy in union? The members not the officers or directors are the
governing body. It is the members who decide.
Basic rights of a union? To represent the members on collective bargaining

negotiation and to be certified as the sole and exclusive bargaining agent.
Can the union file a case before the NLRC for its member’s money claim?
Yes. (La Carlota May 19, 1975).
Limitation of the authority of union? It cannot waive a judgment award

without the authority of the member. It can file a complaint without the written
authority of the member, but it cannot waive without written authority of the
member.
A judgment based on compromise agreement authorized by the members does

not bind the individual members who are not parties to it. (Kaisahan ng Manggawa
– 33 SCRA 220).
Can employees in a non-profit organization form, join and assist union? Yes,
Article 253. It includes the phrase whether operation for profit or not.
What about manager and supervisors?
Manager – No. Remember BF ko HRD

Supervisor – JAF – a union of their own. 255.
The questions in the bar, a lot of them refers to whether the employee is a
manager or a supervisor. So take note of BF ko HRD.
Magic words: The rational of the law is conflict of interest. SLD. Managers
are presumed to side with the interest of the company, their loyalty is questionable
in so far as the rank file are concerns and their moral ascendancy may lead to a
company dominated union.
What about confidential employees? No.
Do not rely on the title, position or name. There are two important elements.
a) Act in a confidential capacity in effectuating management policies in the
field of labor relations.
b) Assist a person who formulate and implement management policies in the
field of labor relations.
Note there are two kinds of confidential employees.
First – confidential employees entrusted with company fund or properties, i.e.

Cashier , warehouseman, payroll muster, cooks, barbers.
Second – confidential employees connected or in charged in labor relation.

Thus there will be a conflict in interest.
- Not all confidential employees are precluded. The position must give the
union an undue advantage. His position is such that it gives him access to
information that the union can use.
Cashier – not precluded.

Legal secretary – precluded.
Warehousemen – not precluded.
Payroll master – not precluded
What about security guard? Before they are barred. This disqualification has
been removed. They may join a labor organization defending on their rank. (Manila
Election. May 10, 1991 – and only against the Security agency, who is their direct
employer. Note that union membership means there must be employer-employee
relationship.
What about cooperative employees?
- Member of the cooperative / cannot, they are co-owners.

- Not members but only employee / Can, they are not co-owners.
- Member and also employees / Can, see Nueva Ecija I Electric, January 24,
2001.
What about members in International labor organization? Employees cannot

form unions. (International Catholic, 190SCRA130).
Aliens or foreign workers? 269. No. They are prohibited from directly or
indirectly from engaging in trade union activities. But under RA. 6715, if they
have permits, they can form unions of their own just like in the case of
supervisors. But there is a reciprocal right given by the country where the alien
came from. (there is reciprocity).
Service establishment--- can form a union.

Workers paid by result --- can form a union.
Not more than 10 employees – can form a union.

Non profit or religious organizations --- can form a union
May an employee be forced to join a union?
Gen rule: NO. The right to self organization means the freedom not to join
union. Exception: if the union enforces a Union Security Clause in the CBA.
What are the Union Security Clauses?
- Union Shop Clause – Non-member can be hired, but he must join the
union. Once hired, the union can demand that he join the union or
else demand from the employer of his termination.
- Maintenance of Membership Clause – a member cannot quit being a

member. If he quits the union, the latter can demand from the
employer that he be terminated.
- Closed Shop Clause– the employer must only hire individuals who
are members of the union. The union can demand that the employer
only hires members coming from its rank otherwise the employer can
be charged of ULP. There are two unions, A and B. A won the CE.
It then had a CBA with the employer with a Closed Shop Clause. The
clause cannot be enforced against the members of B union to force
them to join A union. Freeman Shirt. L-16661. The right to self
organization carries with it the right to be a member of a minority
union.
In Close Shop- construction must be in favor of the employee.
Example: the clause says “… the employer agrees to hire employees who are
members of the union. This is not Close Shop.
The wordings must be “.. the employer agrees to hire employees ONLY who
are members of the union..”
In the first, the employer agrees to hire employees supplied by the union but
it does not say it cannot hire other individuals.
If the clause says … the employers agrees to ONLY hire employees of good
standing of the union..” Here, what is meant that the employer must hire members
of good standing. Once hired and the employee quits the union, then he cannot be
terminated. For the wordings should have been:
the employers agrees to ONLY hire employees of good standing of the union
and the employee hired should maintain his good standing to maintain his
employment…”
Again construe, the clause in favor of the employee.
But as a matter of policy, when a union member quits membership and joins
another union to ask for a CE, this act of disloyalty can be punished using the closed
shop clause. The employee can be terminated upon the demand of the union to the
employer to enforce the closed shop.
Note that the Union Security Clause can be enforced against an employee who
was expelled by the union for valid reason. Disloyalty or not payment of dues.
Q. What is the process? The Union demands. The employer does due process.
Then the employer dismissed.
Note that there must be due process. Elements:
a. There must be a clear and ambiguous closed shop or union shop clause in
the CBA.
b. Or the employee must have been expelled thus he is no longer a member.
c. There must be a demand from the union to terminate the employee. The
termination cannot be had motu propio by the employer.
d. Due process.
e. The employer has the option not to terminate if such option is exercised in
good faith. For he is the one that can be sued for illegal dismissal. If the
employer does not terminate, then the union can charged him with ULP.
So mamili sya ng kaso.
Can the employer impose a condition in the employment contract that the
employee do not join a union? Sa Cavite ginagawa ito. This is known as a
“yellow dog contract” which is void and considered a ULP.
Union dues, can it be deducted from the wage at the insistence of the Union?
Yes :
a. With the written consent of the employee. Other wise no. Even for
mandatory assessment. Yet he still has to pay the union but the employer
cannot deduct.
b. When it was the employer who recognized the deduction. Even if the
employee does not consent the employer on its own can make the
deduction and it is still legal.
c. When the deduction is for reasonable assessment or expenses concerning
a mandatory activity. (like when the union officers attended a labor
relation seminar). Appearance fee or transportation expense in labor
hearings. Not to buy a gift for the union president. Also assessment like
this must be by a majority resolution of all members in a general
membership meeting. Criteria: a. the expense is for a mandatory activity
necessary for the union and b. majority resolution of all members.
If there is a CBA provision on union dues deduction from the

employee’s wage and the employer does not deduct, what is the net effect?
The employer can be charged with ULP.
- Agency Shop Clause – Union does not requires membership but

requires payment of union dues. The union can demand from the
employer to deduct this dues from the salary of the employee.
Otherwise, the union can charge the employer of ULP.
Q. Are the benefits of the CBA inclusive only to members meaning that the
non members does not get the benefits? The CBA benefits even the non members.
267. The winning union in the CE has the obligation to represent and protect the
interests of all the workers in the appropriate bargaining unit.
Q. That law imposes upon an employer the duty to bargain collectively, what
does that mean?
a. To answer or respond to a request for a CBA. I have a client. Dinedma

nya. Sabi ko mali. Kung ayaw mo sumagot ka pa rin. Sabihin mo walang
budget. Ok nay un kesa walang sagot. Pag dedma ka lang ULP.
b. To negotiate. Then sabihin mo walang pera. Hindi naman kailangan mapag

bigyan mo sila. Di mag deadlock. Basta sit in the negotiation table. Wag
mo dedmahin. Not to negotiate is ULP.
c. Do not breach the CBA. ULP
Q. Basic element of ULP:
Interference
Restraint IRC to formation and existence of Union

Coercion
Ex. – telling an employee not to join a union (Yellow dog contract)

- Hire agency for the job of union members.
- To discriminate against union members.
- To dismiss union member
- To violate the duty to bargain collective.
- Closure of the company to thwart unions.
What happen if the closed company is bought by another company?
- If there is ULP, the new company will be treated as a continuation or successor

of that closed. In such case, the separated employees will have to be employed
in the new company. This is known as the “Successor Employer” Doctrine.
(Cruz vs. Paflu October 29, 1971).
Run away shop? - A company moved by its owner to another location to

escape union activities.
Lets go to some basics about Certification Election.
Who can demand for a CE?
a. The legitimate labor organization.
b. The employer when requested to bargain collectively. The

employer cannot do it when its purpose is to have a favored union
or to settle inter union conflicts. Kung nag aaway yung mga union,
it is not for the employer to interfere. Bahala sila sa buhay nila. But
once asked for a collective bargaining, then he can demand that a
certification election first be had.
What do you mean by an organized establishment? A company may have a

union but it will only be deemed an organized establishment if there is a recognized
or a certified sole and exclusive bargaining union.
Can there be voluntary recognition by an employer?
a. in an unorganized establishment, the employer can recognized the only

union existing. There is no need for CE as there is voluntary recognition.
b. But if anybody complains, then the recognition by the employer is not

sufficient. Specially, if the complaint refers to an allegation of an
employer’s union. Any party in interest can complain. It then becomes an
obligation on the part of that union to ask for a CE. The union recognized
by the employer must still get the majority vote of the employees, member
of the union or not. EO 111 March 4, 1987.
When can the CE be asked?

BODUC-
B efore the expiration of a valid CBA, 60 days before
O n going CBA negotiation,
D eadlock in the CBA,
ULP case pending
CE was just had in a year.
a. During the freedom period. When there is a valid CBA, the CE can
be filed only WITHIN 60 days prior to the expiration of the valid
CBA or two months before the valid CBA expires. If the CBA has
a validity of five years, you have to wait for 4 years and 10 months
to have another CE. This is known as the “contract bar rule”. The
contract, meaning the CBA, bars the filing of a CE. Except when a
company union and employer maliciously coordinated with each
other to forged a CBA to prevent the entry of an independent union
or a charter union. Firestone 45513 Jan. 6, 1978.
Questions in the bar abound on the application of the contract bar

rule - General Textiles L-45719 “ instead of fostering and
promoting industrial democracy, such contract would enable a union
that may have close ties with the management to perpetuate itself in
power”
b. Cannot when there is an On going negotiation for a CBA. But note

that for on going negotiation, there must already be substantial
progress in the negotiation. Kung nag sisimula pa lang, wala pang
nangyayari, a CE can be asked. This is known as the “on going
negotiation rule”
c. When there is a Deadlock in the CBA negotiation. (This is known

as the “deadlock bar rule”. A certification election at this point will
only aggravate the situation. It will seriously disturb rather than
promote industrial peace.
d. If there is a pending case of Unfair labor practice filed by an

independent union alleging that the employer is maliciously
bringing in a employer dominated union. The ULP should be
resolved with dispatch by the NLRC. This ULP should be resolved
first before the BLR (Bureau of Labor Relations of the Dole conduct
the CE. 472 Alcantara.
e. Within the certification Year, the 1 year period following the

certification of a union. In this period, there can be no holding of a
CE. It is in this period that the union is required to negotiate a CBA
with the employer.
Q. What is the role of the employer in the CE? Wag sya makikialam. He has
no role in the CE. Even if he is the one who filed the CE because he is being asked
to do a CBA.
Fire and forget. Smart missile.
May the employer intervene in the CE to asked for the disqualification of the
participants?
No. It is the protagonist in the CE, the warring unions who can ask for
disqualifications.
Who can be asked to be excluded as a participant in the CE?
In general, those who are not supposed to join a union should be excluded.
Ex.
a. Foremen who are deemed confidential employees. (Pier and Arrastre
110845.
b. Security guards. Not unless it is a security guards union. E.0 111.
c. Managers and managerial staff.
What is the one union, one company policy? There can only be one. SC- the
ends of unionism are better served if all the employees with substantially the same
interest are part of a single union. But there can be separate unions for:
a. Supervisors
b. Piece rate workers
c. Monthly paid workers
d. Separate plant union –exception to the 1 union 1 company policy
e. Craft union etc.
Sample question:
In a certification election to select the bargaining union of pilots in an airline

company, can the following be allowed to participate:
a. a stewardess
b. a pilot who is not a member of the union.
c. a salesman. This salesman was a former pilot who was terminated for his
union activities.
Answer:
a. the stewardess is out. She is not a pilot.
b. a pilot who is not a member can participate. Even non members can
participate for it will affect their rights.
c. The salesman can vote. Art. 212 says that employees who can
participate in a CE includes those individual whose work has ceased
because of a current labor dispute of ULP. The pilot who was dismissed
of course has to have an activity to earn for his bread and butter. But
note here that he is working on a temporary basis. A pilot will not be a
salesman forever. If he gets another job as a pilot in another company
on a regular status, then his participation in the CE can be objected to.
Meaning of strike? Concerted temporary stoppage of workers a result of

labor dispute (concerning terms and condition of employment). This means
that a sympathies strike or joining the Welga ng Bayani is illegal.
- Focus on the presence of labor dispute.
Can government employees strike? No. they can form unions but NO
STRIKE, i.e. public school teacher (Bongalisan July 31, 1997).
Procedural requirements? (278)
NVR Notice of Strike

Strike Vote
Result of Strike Vote
You file the Notice before the DOLE. 30 days ordinary- 15 days if ther
is ULP, O days if there is Union busting. To give the DOLE time to mediate.
You do a strike vote or election after 24 hours of your notice to the

DOLE. Secret balloting. This will give the DOLE the opportunity to ensure
the election is fair and square. This will also hasten them to mediate.
You submit the Result of the Strike Vote to the DOLE 7days after the
vote. This will give the DOLE the opportunity to really hasten the mediation.
Without NVR, never do a strike.
What are the limitation in a strike? As the picketers must not:
a) VICO – Violence, Intimidation, Coercion, Obstruct the free

ingress to or egress. Obstruct public thoroughfare
Lets go back to the HSBC case.
The Labor Arbiter declared the strike illegal for failure of the Union to file the
notice of strike with the DOLE; to observe the cooling-off period; and to submit the
results of the strike vote to the (NCMB). He concluded that because of the illegality
of the strike the Union members and officers were deemed to have lost their
employment status.
On appeal, the NLRC modified the ruling of the LA and pronounced the
dismissal of the 18 Union members unlawful for failure of HSBC to accord
procedural due process to them.
Take note of the material and pertinent facts. On December 22, 1993 HSBC
issued a return to work order. On December 24 it filed a complaint. On December
27 nangyari yung massacre. Walang notice to explain, walang administrative
hearing, notice of dismissal lang nung December 27.
Court of Appeals
WHEREFORE, the instant petition is DISMISSED and the questioned

decision of the National Labor Relations Commission
is AFFIRMED with MODIFICATION. The indemnity was taken away but still the
bank was ordered to pay backwages.
Ruling of the Court
FIRST CORE ISSUE
Is the strike illegal? Note:
The procedural requirements for a valid strike:

(1) a notice of strike filed with the DOLE at least 30 days before the intended
date thereof, or 15 days in case of ULP;
(2) a strike vote approved by the majority of the total union membership in
the bargaining unit concerned, obtained by secret ballot in a meeting called
for that purpose; and
(3) a notice of the results of the voting at least seven days before the intended
strike given to the DOLE. These requirements are mandatory.
N- notice of strike 30 days
V- strike vote
R – strike vote result 7 days.
Since these mandatory requirements where ignored by the union, their strike
was deemed illegal.
Another core principle in the 2016 HSBC case is that: As a general rule, the
mere finding of the illegality of the strike does not justify the wholesale termination
of the strikers from their employment. Article 264 provides: Any union officer who
knowingly participates in an illegal strike and any worker or union officer who
knowingly participates in the commission of illegal acts during a strike may be
declared to have lost his employment status: So in effect, the Decision just reiterated
what is already in the law. Plain and simple distinguish the 4 kinds of participant in
illegal strike.
1. The union officers who did not do an illegal act.

2. The union officers who did illegal acts.
3. The members who did not do illegal acts.
4. The members who did illegal acts.
If you are an officer, whether or not you did an illegal act IF YOU
PARTICIPATED IN THE STRIKE, since the strike is illegal your out. But if you’re
a member you must do an illegal act. In the case at bar, question arise on who among
the members participated in the blocking of the ingress and egress of HSBC. If you
are a member who did not report to work or that you went into the strike zone but
did not participate in blocking the entrance and exit, your good.
CLOSING REMARK
So sorry for my title. I did not mean to offend. Its just my little way of being
funny and also instigating you to read this material. I do not guaranty that I have
covered everything but I guaranty that I did try my best. The task at hand is
formidable. It is intimidating and intense but not insurmountable. Bar exam is a
UFC, an ultimate fighting challenge. Passing it will definitely change your life. I just
do not know if it is for the better or for the worst. But if you really desire it, claim
it. Do everything in your powers to pass it. Believed that being a lawyer is written
in your stars. You did not come this far, reach this far, just to be a non-lawyer
forever. All your teachers, all your mentors, all your tormentors were sent to make
you lawyers. Believe that
THE WHOLE UNIVERSE CONTRIVES

AND COORDINATES FOR YOU TO BECOME LAWYERS.
It is a pre-designed arrangement. In Kung Fu Panda, it was said that the road

you take to evade your destiny will exactly be the road that will lead you to it. You
did not finish law school for nothing. You did not finish this review for nothing. It
is your destiny to become lawyers. It is just a matter of belief and time. Thank you
very much. Good luck and God speed.
- End -

LABOR Prof. Campanilla

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Labor Law Reviewer for the Handicapped.

by Atty. Pearlito B. Campanilla

So again, what does the State assure? Answer SSCC.

“…Article 4 provides. All doubts in the implementation and interpretation of

Lets go back . When is there employer employee relationship. This answers

Code of Conducts refers to how an employee behaves. It is not telling him

Trash the words Contract, Agreement and Name ( C A N ). Thrash them. C

Needed means that it may result in MUD.

Presence or absence of MUD equates to the necessity of the job. Monetary

Wanted means just to please the employer.

Necessary and usual = regular

Desirable but not usual = casual

Desirable yet usual = regular

S eparation pay because they have a secured tenure

Non regular employees, in general deserves only MOTHERS.

Q. Who are obligated or liable to grant these rights and benefits?

In Ramones 122327, the SC ruled that peripheral jobs like performance of

This is known as the TENURE DOCTRINE.

Magic words: Continuious rehiring may result to regularization.

Necessary but not usual = contractual or seasonal

SEASONAL EMPLOYEES – they are employed to do ANDUB but there is

Seasonal employees are categorized into two by jurisprudence namely

But ANDUB or not, Tenure or not, in Project based employment, Contractual

For contractual employees there is ANDUB but there is a CCDE, contracts

And in Fixed term employment there is a FTDE or a fixes term determined

Also, in Innodata 2017 211892, an employee tasked to do a specific project

So a carpenter who is tasked to be a painter is a regular employee.

Q. What is the difference between a project-based from a regular?

For the three steps in attacking a question regarding PBE.

a. Determine if there is a PBEC.

Q. What are contractual employees or fixed term employees?

1. The conditions of employment knowingly and voluntarily agreed upon at

Q. Is there a contractual or fixed term among the rank and files?

It can be easily concluded that there can be no fixed-term employment in so

The exception to this and OFWs who is said to be legally impossible to

In Samonte vs La Salle Grennhills (2016 199683). Medical professional. Had

1. There was no negotiation in the renewal of their contracts. (Contract of

The Court ruled :

So how do you attack questions in the Bar concerning CE or FTE.

1. Determine where Moral Dominance is situated.

CE or FTE gets MOTHERS but not the SUN

Q. What are the elements of a probationary contract?

What is the difference between a PE (probationary) and a RE (regular)?

a. The security of tenure of PE is only up to the extent of his probationary

If the PC says it is 3 months, then it is 3 months. If it says it is 7 months, then

Q. Once a probationary period is determined, can it be shortened or extended?

Note that it is a consistent ruling that Evaluation must be in good faith.

In Manila Hotel, 53453, a probationary employee who was flunked in the

To summarize, a shortened probationary period may result to a pre-mature

In this connection, when must the evaluation be had?

Going back, once a probationary period is determined, can it be extended?

Ask yourself, at whose instance is the extension being made?

What if it is the employee who appears to be stupid enough to be asking for

So the rule is, before an evaluation, no extension. After a failed evaluation,

What happens to a probationary employee when he is dismissed?

Determine the dismissal. If through a valid cause and due process, he is

If the termination is through a valid evaluation, he is terminated for good.

If through an invalid evaluation, example: evaluation made in bad faith, to

How can you easily distinguished a supervisor from a manager. A supervisor

To repeat, for easy memory access:

A manager is a person who:

The magic words here is vested with trust and confidence.

“… Her employment as sales manager was directly related with the