Академический Документы
Профессиональный Документы
Культура Документы
F. Ku
Atty.
Procedure Coverage
May a non-union member who is a rank-
What is the quantum of proof/evidence and-file employee avail of wages increases
required in the adjudication of cases before provided in the CBA?
the NLRC? Explain your choice.
Yes, a rank-and-file employee who is not a
Substantial evidence. member of the union may avail of the wage
While it is true that quasi-judicial increase for they are part of the bargaining
bodies like the NLRC are not bound by the unit even though they may not be part of
technical rules of procedure in the the bargaining union. However, the union
adjudication of cases, the evidence may collect an agency fee from the non-
presented before it must at least have a union employee for he has benefited from
modicum of admissibility for it to be given the employment conditions negotiated by
probative value. Not only must there be the bargaining union. The union then
some evidence to support a finding or served as agent of the employees and the
conclusion, but it must also be substantial agency fee is a recognition of the agent’s
evidence. efforts.
Substantial evidence is more than a
mere scintilla. It means such relevant
evidence as a reasonable mind might
accept as adequate to support a conclusion.
Unfair Labor Practice
It is the basic measure in adjudicating cases
before the NLRC. What are the four forms of violation of the
duty to bargain?
Fixed-Term Employment
a) Any agreement to the contrary
notwithstanding, an employment shall be
deemed to be regular where the employee
a) Rasul entered into a contract whereby
has been engaged to perform activities
he agreed that the he shall work for the
which are usually necessary or desirable in
employer for 3 years. Is the contract valid?
the usual business or trade of employer
What kind of employment did he sign up
(Art. 294, LABOR CODE)
for?
b) A person is not deemed a regular
b) Maria, a high school graduate entered
employee if the “employment has been
into a contract whereby she agreed that
fixed for a specific project or undertaking
she will only work for 4 months to which
the completion of which has been
she agreed. At the end of 4 months, she
determined at the time of the engagement
was re-hired and signed another 4-month
of the employee or where the work or
contract. Is the contract valid?
services to be performed is seasonal in
nature and the employment is for the
c) Was Rasul illegally dismissed? Why or
duration of the season. (Art. 294, LABOR
why not? How about Maria? Why or why not?
CODE)
b) His dismissal being invalid, Johnny is Uriah was employed as a flight attendant
entitled to reinstatement without loss of and signed a contract whereby she agreed
seniority rights and other privileges and to to maintain a certain weight. Uriah
his full backwages, inclusive of allowances, however failed to maintain this weight and
and to his other benefits computed from despite repeated demands and continued
the time this was withheld from him up to encouragement of the employer for her to
his actual reinstatement. If reinstatement do so, she still failed to meet the weight
is no longer feasible or where a strained requirement. She was thus dismissed. Is the
relation between employer and employee dismissal valid?
exists, separation pay may be ordered in
lieu of reinstatement. Yes, the dismissal is valid.
It should be noted that in the case
Juancho, a security guard, had a fight with of Yrasuegi v. PAL, the Court has upheld
the owner of SM Mall. The Security agency the imposition of a certain weight standard
later ordered his transfer to (somewhere for the flight attendants to maintain as
far). Is the transfer valid? reasonable given that weight and size of
the attendant may play a factor in flight
Answer found in Blue Book, not suggested, safety, particularly in carrying out his
but merely guide functions during emergencies. The Court
held that such a weight requirement is only
No, the transfer order is invalid. reasonable as it is done to accomplish a
The facts of the case reveal that legitimate work-related purpose.
the transfer of Juancho was made to The same must be applied in the
punnish him for confronting the grandson of case at bar. The requirement imposed upon
SM Mall. Such transfer is attended by bad Uriah to maintain a certain weight is only
faith because it was not made for a valid reasonable and her failure to comply with
reason. Moreover, Juancho refused saying the reasonable standards may be
that it was financially burdensome on his considered as a just cause for dismissal
part, the agency cited him for under Art. 296(e) or other analogous cases
insubordination and eventually terminated for dismissal.
him. Furthermore, Uriaih was informed
The transfer of Juancho is also not prior to her employment of the weight
requested by SM. These actuations reveal standards and thus, she is in estoppel and
the agency’s bad faith. In effect, cannot question the weight limit required
Juancho’ss transfer was a constructive by PAL. Bona fides exigit ut quod convenit
dismissal and hence, it is invalid. fiat.
Bance, Shayne Amor Labor Law and social legislation
Xavier university – ateneo de cagayan
S: Portia sorority
Labor Relations
F. Ku
Atty.
d) Before closure, Joseph must first serve a
written notice on the worker and the DOLE
Authorized Causes at least one month before the intended
date of closure.
Although Joseph’s business is not suffering
any serious business losses, Joseph wants to
close his business already. How much separation pay is the employee
entitled to in termination of employment
a) Can a businessman close his business at by reason of (a) disease; (b) retrenchment;
will and not for reason of business losses? (c) redundancy and (d) introduction of
labor-saving devices?
b) What are the obligations of Joseph? How
much separation pay are Joseph’s
Art. 298 of the Labor Code provides
employees entitled to considering that the that an employer may terminate the
closure was not due to serious business services of an employee who has been
losses? found to be suffering from any disease and
whose continued employment is prohibited
c) If the cessation of business is due to by law or is prejudicial to his health as well
serious business losses, how much will be as to the health of his co-employees,
the separation pay of the employees? provided that he is paid separation pay
equivalent to one month salary or one-half
d) What is the step or procedure to be month salary for every year of service,
taken by Joseph before the closure of his whichever is higher, provided that a
business? fraction of 6 months is considered 1 whole
year.
Art. 297 on the other hand provides
a) Yes, Joseph can close his business at will that in cases of termination due to
whether his business is losing or not. If the installation of labor-saving devices or
business is not losing but its owner, for redundancy, the employee shall be paid
reasons of his own, wants to get out of the separation pay equivalent to one month
business, he in good faith can lawfully do so salary or one month salary for every year of
anytime. Just as no law forces anyone to go service, whichever is higher.
into business, no law compels anybody to While in case of retrenchment, the
stay in business. But the employees are
employee must be paid separation pay
entitled payment of separation pay and equivalent to one month salary or one-half
Joseph must still comply with the two- month pay for every year of service,
notice requirement. whichever is higher, provided that a
franction of at least 6 months is considered
b) Joseph is obliged to do the following: 1 whole year.
(a) comply with the two-notice
requirement by serving a written Company A sold its business to Company B.
notice on the worker and the DOLE
The employees of company A who were not
at least one month before the rehired filed a case of illegal dismissal
intended date of closure; and which the Labor Arbiter affirmed. Is the
same correct?
(b) pay his employees separation
pay equivalent to at least one
No, the Labor Arbiter is not correct. No law
month pay of ½ month pay for prohibits the bona fide sale of a going
every year of service whichever is enterprise. When that happens, the
higher. A fraction of 6 months is purchaser, unless he agrees to do so, has no
considered one year. legal obligation to continue employing the
employees of the seller. The seller, as
c) If the closure is due to serious business employer is obligated to pay his employees
losses, Joseph has no obligation to pay his separation pay and other benefits found on
employees separation pay since his business
the law, policy or contract. As long as the
is already losing. In Victor Mendoza v. NLRC, sale is not done in bad faith or to
the Supreme Court held that the “closure circumvent the law, the sale should be
of a business establishment due to serious upheld.
losses or financial reverses negates the In the instant case, it is immaterial
grant of separation pay to employees whose if the CBA is yet to expire. The employer,
services are terminated. It is only when the provided he does so in good faith, may sell
closure is for reasons other than business his business. It is only when the sale is
reverses or losses that separated personnel
tinged with bad faith that it may be
are entitled to separation pay. considered as unfair labor practice and the
Thus, if the closure is due to doctrine of successor employer may apply.
serious business losses, then the employees
are not entitled to separation pay.