Pre-Employment Orientation Seminar (PEOS)

I. JURISDICTION OF LABOR ARBITERS (ART. 217, LABOR CODE)II. EMPLOYER-EMPLOYEE RELATIONSHIP

III. LEGITIMATE OR PERMISSIBLE JOB CONTACTING (ART. 106)

IV. LABOR ONLY CONTRACTING (ART. 106)

V. REGULAR EMPLOYMENT (ART. 280)A. REGULARB. PROJECT

C. SEASONAL

D. CASUAL, not regular, project or sasonal

VI. PROBATIONARY EMPLOYMENT (ART. 281)VII. TERMINATION DISPUTES (ART. 279 & ART. 277 [B])A. JUST CAUSES (ART. 282)

B. AUTHORIZED CAUSES (ART. 283)

C. DISEASE AS GROUND FOR TERMINATION (ART. 284), ALSO AN AUTHORIZED CAUSE BUT OF SEPARATE PROVISION

D. TERMINATION BY EMPLOYEE (ART. 285)E. BURDEN OF PROOF LIES WITH THE EMPLOYER, BUT THE FACT OF DISMISSAL MUST FIRST BE ESTABLISHED.

VIII. RETIREMENT (ART. 287)A. RETIREMENT AGE BASED ON COLLECTIVE BARGAINING AGREEMENT OR OTHER APPLICABLE EMPLOYMENT CONTRACT

B. ABSENT CBA OR CONTRACT, ART. 287 WILL APPLY

C. COMPULSORY RETIREMENT AGE 65 YEARS OLD

D. OPTIONAL RETIREMENT AGE 60 YEARS OLD AND WITH AT LEAST 5 YEARS OF SERVICE. AGE AND TENURE REQUIREMENTS ARE CUMULATIVEE. FOR UNDERGROUND MINING EMPLOYEES

1. COMPULSORY RETIREMENT AGE 60 YEARS OLD

2. OPTIONAL RETIREMENT AGE 50 YEARS OLD AND WITH AT LEAST 5 YEARS OF SERVICE

F. RETIREMENT BENEFITS

1. RETIREMENT PLAN OR AGREEMENT

2. ABSENT RETIREMENT PLAN OR AGREEMENT, ONE-HALF (1/2) MONTH SALARY FOR EVERY YEAR OF SERVICE.

3. ONE-HALF SALARY MEANS

a. 15 DAYS, plus

b. ONE-TWELFTH (1/12) OF THE 13th MONTH PAY, andc. CASH EQUIVALENT OF NOT MORE THAN 5 DAYS OF SERVICE INCENTIVE LEAVES

OR 22.5 DAYS FOR EVERY YEAR OF SERVICE

G. EXEMPTED EMPLOYERS

1. RETAIL, SERVICE AND AGRICULTURAL ESTABLISHMENTS OR OPERATIONS EMPLOYING NOT MORE THAN 10 EMPLOYEES OR WORKERS (10 OR LESS) IX. VISITORIAL AND ENFORCEMENT POWER OF DOLE SECRETARY OR DULY AUTHORIZED REPRESENTATIVE, INCLUDING LABOR REGULATION OFFICERS (ART. 128)

A. Art. 128 (a) access to employers records, to copy the same, to question any employee and investigate any fact, condition or matter in the enforcement of the Labor Code and any labor law, wage order or rules and regulations.B. Art. 128 (b) in cases where the employer-employee relationship STILL EXISTS, the power to issue compliance orders to enforce labor standards provisions and other labor legislation based on the FINDINGS of labor employment and enforcement officers or industrial safety engineers made in the COURSE OF INSPECTION; and the power to issue WRITS OF EXECUTION to the appropriate authority for the ENFORCEMENT of their ORDERS, except in cases where the employer CONTESTS the FINDINGS of the labor employment and enforcement officer and RAISES ISSUES supported by documentary proofs which were not considered in the COURSE OF INSPECTION.X. RECOVERY OF WAGES, SMALL MONEY CLAIMS & OTHER BENEFITS

(ART. 129)A. CLAIMS OF EMPLOYEE OR PERSON EMPLOYED IN THE DOMESTIC OR HOUSEHOLD SERVICE OR HOUSEHELPER WHERE THERE IS NO CLAIM FOR REINSTATEMENT AND THE AGGREGATE AMOUNT DOES NOT EXCEED P5,000.00

XI. PRESCRIPTION OF ACTIONS OR MONEY CLAIMS (ART. 291).

A. THREE (3) YEARS, EXCEPT ILLEGAL DISMISSAL WHICH PRESCRIBES IN FOUR (4) YEARS

PRESENTATIONJURISDICTION OF LABOR ARBITERS

1. UNFAIR LABOR PRACTICE (ULP);

2. TERMINATION DISPUTES;

3. IF ACCOMPANIED WITH CLAIM FOR REINSTATEMENT, THOSE CASES THAT WORKERS MAY FILE INVOLVING WAGE, RATES OF PAY, HOURS OF WORK AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT;

4. CLAIMS FOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF DAMAGES ARISING FROM EMPLOYER-EMPLOYEE RELATIONS;

5. CASES ARISING FROM ANY VIOLATION OF ARTICLE 264 OF THE LABOR CODE, INCLUDING QUESTIONS INVOLVING THE LEGALITY OF STRIKE OR LOCKOUTS; AND

6. EXCEPT CLAIMS FOR EMPLOYEES COMPENSATION, SOCIAL SECURITY, MEDICARE AND MATERNITY BENEFITS, ALL OTHER CLAIMS ARISING FROM EMPLOYER-EMPLOYEE RELATIONS, INCLUDING THOSE OF PERSONS IN THE DOMESTIC OR HOUSEHOLD SERVICE EXCEEDING P5,000.00 REGARDLESS OF WHETHER ACCOMPANIED WITH A CLAIM FOR REINSTATEMENT;7. WAGE DISTORTION DISPUTES IN UNORGANIZED ESTABLISHMENTS NOT VOLUNTARILY SETTED BY THE PARTIES PURSUANT TO RA 6727;

8. ENFORCEMENT OF COMPROMISE AGREEMENTS WHEN THERE IS NON-COMPLIANCE BY ANY OF THE PARTIES PURSUANT TO ARTICLE 227 OF THE LABOR CODE;9. MONEY CLAIMS ARISING OUT OF EMPLOYER-EMPLOYEE RELATIONSHIP OR BY VIRTUE OF ANY LAW OR CONTRACT, INVOLVING FILIPINO WORKERS FOR OVERSEAS DEPLOYMENT, INCLUDING CLAIMS FOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF DAMAGES AS PROVIDED BY SECTION 10 OF RA 8042, AS AMENDED BY RA 10022; AND

10. OTHER CASES AS MAY BE PROVIDED BY LAW.

VENUE: CASES ARE FILED WITH THE LABOR ARBITER IN THE REGIONAL ARBITRATION BRANCH HAVING JURISDICTION OVER THE WORKPLACE OF THE COMPLAINANT OT PETITIONER.

For purposes of venue, the workplace shall be understood as the place or locality where the employee is REGULARLY ASSIGNED at the time the cause of action arose. It shall include the place where the employee is supposed TO REPORT BACK after a temporary detail, assignment, or travel. In case of FIELD EMPLOYEES, as well as AMBULANT or ITINERANT workers, their WORKPLACE is where they are REGULARLY ASSIGNED, or where they are supposed TO REGULARLY RECEIVE THEIR SALARIES AND WAGES OR WORK INSTRUCTIONS FROM, AND REPORT THE RESULTS OF THEIR ASSIGNMENT TO, THEIR EMPLOYERS.Cases involving OFWs may be filed before the Regional Arbitration Branch having jurisdiction over the PLACE where the complainant RESIDES or where the PRINCIPAL OFFICE of ANY OF THE RESPONDENTS is situated, AT THE OPTION OF THE COMPLAINANT.EMPLOYER-EMPLOYEE RELATIONSHIP

A basic factor underlying the exercise of rights under the Labor Code is the status of employment. In this regard, the jurisdiction of the Labor Arbiter to hear and decide a case rests on the proposition that an employer-employee relationship exists between the employer and the employee.

Verily, the element of employer-employee relationship should be first established before resolving the issue of any money claims arising therefrom. The requirement of employer-employee relationship is JURISDICTIONAL for the provisions of the Labor Code to apply. Under the Rules of Court, which is suppletorily applicable to NLRC Rules, it is the duty of the court to dismiss an action whenever it appears that the court has no jurisdiction over the subject matter. Rightly so, as this kind of jurisdiction is conferred by law and not within the courts, let alone the parties, to themselves determine or conveniently set aside. Notably, Article 280 of the Labor Code is not the yardstick to determine the existence of an employer-employee relationship because it merely distinguishes the kinds of employees under the Labor Code for the purpose of determining the right of an employee to certain benefits, to join and form a labor union, or to security of tenure.

While it is true that the existence of employer-employee relationship is a question of fact, it is equally true that such relationship is a question of law which may not be the subject of stipulations. The relationship is defined and prescribed by the law itself.

Thus, where the existence of an employer-employee relationship is in dispute, the so-called four-fold test must be applied, namely: (1) selection and engagement of the employee; (2) payment of wages; (3) power of dismissal; and (4) power to control the employees conduct. Of these four, the last one is the most important. The control test is commonly regarded as the most crucial and determinative indicator of the presence or absence of employer-employee relationship. Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved but also the manner and means to be used in reaching that end. It is a basic rule in evidence that each party must prove his affirmative allegation. If he claims a right granted by law, he must prove his claim by competent evidence, relying on the strength of his own evidence and not upon the weakness of that of his opponent.

LEGITIMATE OR PERMISSIBLE JOB CONTRACTING AND LABOR ONLY CONTRACTING Indeed, it is management prerogative to farm out any of its activities, regardless of whether such activity is peripheral or core in nature. However, in order for such outsourcing to be valid, it must be made to an independent contractor because the current labor rules expressly prohibit labor-only contracting. There is labor-only contracting when the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal, and any of the following elements are present: (i) the contractor or sub-contractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or sub-contractor are performing activities which are directly related to the main business of the principal, or (ii) the contractor does not exercise the right to control over the performance of the work of the contractual employee.

The existence of an independent and permissible contractor relationship is generally established by considering the following determinants: whether the contractor is carrying on an independent business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of a specified piece of work; the control and supervision of the work to another; the employers power with respect to the hiring, firing and payments of the contractors workers; the control of the premises; the duty to supply the premises, tools, appliances, materials and labor; and the mode, manner and terms of payment.

On the other hand, existence of an employer-employee relationship is established by the presence of the following determinants: (1) the selection and engagement of the workers; (2) the power of dismissal; (3) the payment of wages by whatever means; and (4) the power to control the workers conduct, with the latter assuming primacy in the over-all consideration.

Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved but also the manner and means to be used in reaching that end. Control over the performance of the task of one providing service both with respect to the means and manner, and the results of the service is the primary element in determining whether an employment relationship exists. On the other hand, an independent contractor is one who exercises independent employment, contracting to do a piece of work according to his own methods and without subject to the control of hirer, except as to the result thereof.

The Supreme Court has had the occasion to rule that capitalization may be in the form of talents, skills and abilities, and does not necessarily connote money or property. In fact, even if it is the client who provides the tools of trade, the lack of control of the client over the manner the person performs his work will still make the latter an independent contractor.

REGULAR EMPLOYMENT

It is settled that no particular form of employer-employee relationship is required to prove the existence of employer-employee relationship. Any competent and relevant evidence to prove the relationship may be admitted. In fact, testimonial evidence is sufficient to prove employer-employee relationship, and the absence of time sheet, time record or payroll has become inconsequential. This is because if only documentary evidence would be required to show that relationship, no scheming employer would even be brought before the bar of justice, as no employer would wish to come out with any trace of the illegality he has authored considering that it should take much weightier proof to invalidate a written instrument.

The test of whether or not an employee is a regular employee has been laid down in the case of DE LEON vs. NLRC, et al., in which the Supreme Court held:

The primary standard, therefore, of determining whether employment is regular is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exists. (Emphasis supplied)

It has been held that what determines whether a certain employment is regular or otherwise is not the will or word of the employer, to which the worker oftentimes acquiesces. Neither is it the procedure of hiring the employee nor the manner of paying the salary or the actual time spent at work. It is the character of the activities performed by the employer in relation to the particular trade or business of the employer, taking into account all the circumstances, including the length of time of its performance and its continued existence.

It bears stressing that the employment status of a person is defined and prescribed law and not what the parties say it should be.

Thus, as defined under Article 280 of the Labor Code, a regular employee is one who is engaged to perform activities which are usually necessary and desirable in the usual business or trade of the employer as against those which are undertaken for a specific project or seasonal. Even in these latter cases, where such person has rendered at least one year of service, regardless of the nature of the activity performed or of whether it is continuous or intermittent, the employment is considered regular as long as the activity exists, it not being indispensable that he be first issued a regular appointment or be formally declared as such before acquiring a regular status.

Jurisprudentially, Article 280 of the Labor Code does not proscribe or prohibit an employment contract with a fixed period. It does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is nothing essentially contradictory between a definite period of employment and the nature of the employees duties. What Article 280 of the Labor Code, as amended, seeks to prevent is the practice of some unscrupulous and covetous employers who wish to circumvent the law that protects lowly workers from capricious dismissal from their employment. The aforesaid provision, however, should not be interpreted in such a way as to deprive employers of the right and prerogative to choose their own workers if they have sufficient basis to refuse an employee a regular status. Management has rights which should also be protected.

While Article 280 of the Labor Code, as amended, does not forbid fixed term employment, it must, nevertheless, meet any of the following guidelines in order that it cannot be said to circumvent security of tenure: (1) that the fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or (2) it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter.

A project employee is assigned to carry out a specific project or undertaking the duration and scope of which are specified at the time the employee is engaged in the project. A project employee is assigned to a project which begins and ends at determined or determinable times.

In D. M. Consunji, Inc. v. NLRC, the Supreme Court has ruled that the length of service of a project employee is not the controlling test of employment tenure but whether or not the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee.

PROBATIONARY EMPLOYMENT

In Manlimos v. NLRC, it was held that the constitutional protection on the probationary employee ends upon the expiration of the period provided for in the probationary contract of employment. Thus, a probationary employee remains secure in his or her employment during the time that employment contract remains in effect, but the moment the probationary period expires, the employee can no longer invoke the constitutional protection. Thereafter, the parties are free to renew the contract or not; or for the employer to extend to such employee a regular or permanent employment. If the employee is not given a permanent or regular employment contract on account of his unsatisfactory work performance, it cannot be said that he was illegally dismissed. In such case, the contract merely expired.

The employment of a probationary employee may only be terminated either: (1) for a JUST CAUSE; or (2) when the employee FAILS TO QUALIFY to qualify as a regular employee in accordance with the REASONABLE STANDARDS made known to him by the employer AT THE START OF HIS EMPLOYMENT.

Unlike the first ground (just cause), the termination of probationary employee under the second ground (failure to qualify) does not require notice and hearing (Philippine Daily Inquirer, Inc. v. Leon Magtibay, Jr., et al., G.R. No. 164532, 27 July 2007). Due process of law for this second ground consists of making the REASONABLE STANDARDS expected of the employee during his probationary period KNOWN to him at the time of his probationary employment. By the very nature of a probationary employee, the employee KNOWS from the very start that he will be under close observation and continuous scrutiny by his superiors. It is in APPRAISING him of the STANDARDS against which his performance shall be CONTINUOUSLY ASSESSED where due process regarding the second ground lies, and NOT in notice and hearing as in the case of first ground.TERMINATION DISPUTES

The statutory rule is that in illegal dismissal, the burden of proof rests on the employer to show that the employee was dismissed on a valid and just cause, and failing to discharge such burden, the employer should be adjudged guilty of illegal dismissal. After all, dismissal connotes a permanent severance or complete separation from the service on the initiative of the employer regardless of the reasons therefor.

This legal principle, nevertheless, presupposes that the employer has committed a positive and overt act of dismissal, without which the complaint for illegal dismissal must be dismissed outright. Moreover, it has been held that absent any showing that the employer intended to dismiss the employee, there can be no dismissal.

The rule that the employer bears the burden of proof in illegal dismissal cases finds no application where the employer denies having dismissed the employee. While the employer bears the burden in illegal dismissal cases to prove that the termination was for a valid or authorized cause, the employee must first establish the fact of dismissal. In other words, in illegal dismissal cases, it is incumbent upon the employees to first establish the fact of their dismissal before the burden is shifted to the employer to prove that the dismissal was legal. It is a BASIC PRINCIPLE that in the dismissal of employees, the BURDEN OF PROOF rests upon the employer to show that the dismissal is for a JUST CAUSE and FAILURE to do so would necessarily mean that the dismissal is NOT JUSTIFIED.

The principle echoed and reechoed in jurisprudence is that the ONUS of proving that the employee was dismissed for a JUST CAUSE rests on the employer, and the latters FAILURE to discharge that burden would result in a finding that the dismissal is UNJUSTIFIED.

To discharge the BURDEN OF PROOF, the EMPLOYER must present SUBSTANTIAL EVIDENCE to substantiate the CAUSE of a workers dismissal. Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, even if other equally reasonable minds might conceivably opine otherwise.

Case law holds that constructive dismissal occurs when there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is demotion in rank or diminution in pay or both; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee. Constructive dismissal is a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not.

In cases of transfer of an employee, the rule is settled that the employer is charged with burden of proving that its conduct and action are for valid and legitimate grounds, such as genuine business necessity. The employer must demonstrate that the transfer is not unreasonable, inconvenient, or prejudicial to the employee and that the transfer does not involve a demotion in rank or diminution in salary and other benefits, and the action is not motivated by discrimination, bad faith or effected as a form of punishment or demotion without sufficient cause. If the employer fails to overcome this burden of proof, the employees transfer is tantamount to unlawful constructive dismissal.

Demotion involves a situation in which 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. When there is a demotion in rank and/or a diminution in pay, when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee, or when continued employment is rendered impossible, unreasonable or unlikely, the transfer of an employee may constitute constructive dismissal.

An employee FORCED TO RESIGN is considered to have been ILLEGALLY DISMISSED.

DOUBT IN THE DISMISSAL OR TERMINATION OF EMPLOYMENT RESOLVED IN FAVOR OF LABOR. When there is no showing of any clear, valid, and legal cause for the termination of employment, the law considers the matter a case of illegal dismissal. Furthermore, Article 4 of the Labor Code expresses the basic principle that all doubts in the interpretation and implementation of the Labor Code should be interpreted in favor of the workingman. This principle has been extended to cover doubts in the evidence presented by the employer and the employee. Thus, the Supreme Court have held that if the evidence presented by the employer and the employee are in equipoise, the scales of justice must be tilted in favor of the latter. The law looks tenderly on the laborers. Where the evidence may be interpreted in two divergent ways, one prejudicial and the other favorable to him, the balance must be tilted in his favor considering the principle of social justice.Unsubstantiated suspicions, accusations and conclusions of employers do not provide legal justifications for dismissing employees. Bare and unsubstantiated allegations do not constitute substantial evidence and have no probative value. Consequently, having been illegally dismissed, the period of complainants preventive suspension shall be included in computing the time when compensation was withheld from him. The law, under Article 279 of the Labor Code, intends the award of backwages and similar benefits to accumulate past the date of the Labor Arbiters decision. But, if reinstatement is no longer possible, the Supreme Court has consistently ruled that backwages should be computed from the time of illegal dismissal until the date the decision in this case becomes final and executory. The same goes true with the separation pay which should be computed from the time complainant was employed until the finality of this Decision.

EXCEPTIONS to computation up to finality of decision: (1) The award of backwages should be computed from the time the employee was illegally dismissed until the time when he was required by the employer to report for work, but he refused to do so. (where reinstatement is not the fault of the employer but of the employee); (2) where the employee illegally dismissed is a project employee, the backwages should be computed from the date of illegal dismissal until the date of completion of the project. The base figure in computing the award of backwages to an illegally dismissed employee is the employees basic salary plus regular allowances and benefits received at the time of dismissal, unqualified by any wage and benefit increases granted in the interim.

Under existing jurisprudence, SEPARATION PAY is made an alternative relief in lieu of reinstatement in certain circumstances, like: (1) when reinstatement can no longer be effected in view of a long period of time or because of the realities of the situation; (b) reinstatement is inimical to the employers interest; (c) reinstatement is no longer feasible; (d) reinstatement does not serve the best interests of the parties involved; (e) the employer is prejudiced by the workers continued employment; (f) facts that make execution unjust or inequitable have supervened; or (g) strained relations between the employer and employee.

An employee who is illegally dismissed is entitled to: (1) either reinstatement, if viable, or separation pay, if reinstatement is no longer viable; and (2) backwages. These two reliefs are separate and distinct from each other and are awarded conjunctively.

Dismissals have two facets: the legality of the act of dismissal which constitutes substantive due process, and the legality of the manner of dismissal which constitutes procedural due process. Hence, employers are barred from arbitrarily removing their workers whenever and however they want. The law sets the valid grounds for termination as well as the proper procedure to take when terminating the services of an employee.It should be emphasized at this point that the burden of proving the legality of an employees dismissal lies with the employer. The burden of proof rests on the employer to establish that the dismissal is for a cause prescribed by law in view of the security of tenure that employees enjoy under the Constitution and the Labor Code. The employers evidence must clearly and convincingly show the facts on which the employees dismissal may be fairly made to rest. It must be adequately proven by substantial evidence. Substantial evidence is such relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might opine otherwise. It is not the burden of the employee to prove his innocence but the law reposed that burden on the part of the employer. The employers case succeeds or fails on the strength of its evidence and not on the weakness of that adduced by the employee, in keeping with the principle that the scales of justice should be tilted in favor of the latter in case of doubt in the evidence presented by them. Pryce Plaza failed to discharge this burden.

The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. The only condition is that the exercise of management prerogatives should not be done in bad faith or with abuse of discretion. Truly, while the employer has the inherent right to discipline, including that of dismissing its employees, this prerogative is subject to the regulation by the State in the exercise of its police power.

The rule is that the act, misconduct or omission imputed to an employee should merit only the CORRESPONDING PENALTY demanded by the circumstances. It is cruel and unjust to impose the DRASTIC PENALTY OF DISMISSAL if not commensurate to the gravity of the misdeed. The SUPREME PENALTY OF DISMISSAL is the DEATH PENALTY to the working man. Thus, extreme care should be exercised by employers in imposing dismissal to erring employees. The penalty of dismissal should be availed of as a last resort.

It is a hornbook doctrine that infractions committed by an employee should merit only the corresponding penalty demanded by the circumstances. The penalty must be commensurate with the act, conduct or omission imputed to the employee and must be imposed in connection with the disciplinary authority of the employer. Thus, where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe.

The magnitude of the infraction committed by an employee must be weighed and equated with the penalty prescribed and must be commensurate thereto, in view of the gravity of the penalty of dismissal or termination from the service. The employer should bear in mind that in termination dispute, what is at stake is not simply the employees job or position but his very livelihood.

Indeed, the immortal words of former Chief Justice Enrique Fernando ring true then as it they do now: where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the laws concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wag-earner.

In any event, the Supreme Court, in a number of cases, has granted financial assistance to separated or dismissed employees as a measure of social and compassionate justice and as an equitable concession. The Supreme Court held that, by way of exception, the grant of separation pay or financial assistance may be allowed to an employee dismissed for just causes on the basis of equity. This concept has been thoroughly discussed in Solid Bank Corp. v. NLRC.

The right of an employer to dismiss an employee differs from and should not be confused with the manner in which such right is exercised. Under Article 277 (b) of the Labor Code, the employer must send the employee who is about to be terminated, a written notice specifying the particular acts or omissions for which the employer seeks his termination, and must give the employee ample opportunity to be heard and to defend himself before serving a second written notice informing the employee of the employers decision to terminate him. Moreover, the law casts the burden on the employer to prove that the employee has been served two (2) written notices and given ample opportunity to be heard before he is dismissed. Notice of the charges, ample opportunity to be heard, and notice of termination.As to the first notice requirement, this Office is guided by the jurisprudence in Maquiling v. Philippine Tuberculosis Society, Inc. where the Supreme Court held that the first notice must inform the employee outright that an investigation will be conducted on the charges specified in such notice, which if proven, will result in the employees dismissal. Said the Supreme Court in explaining the rationale for this rule:This notice will afford the employee an opportunity to avail all defenses and exhaust all remedies to refute the allegations hurled against him for what is at stake is his very life and limb and his employment. Otherwise, the employee may just disregard the notice as warning without any disastrous consequence to be anticipated. Absent such statement, the first notice falls short of the requirement of due process. Ones work is everything, thus, it is too exacting to impose this strict requirement on the part of the employer before the dismissal process be validly effected. This is in consonance with the rule that all doubts in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, shall be resolved in favor of labor. [Emphasis supplied]

Jurisprudentially, as defined, ample opportunity connotes every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense, including legal representation. The opportunity to be heard afforded by law to the employee is qualified by the word ample, which ordinarily means considerably more than adequate or sufficient. In this regard, the phrase ample opportunity to be heard can be reasonably interpreted as extensive enough to cover actual hearing or conference. On the other hand, the reasonable opportunity for an employee to explain his side as contemplated in the implementing rules and regulations of the Labor Code is construed in King of Kings Transport, Inc. v. Mamac as a period of at least five (5) calendar days from receipt of the notice.As held in Felix Perez, et al. v. PTTC, et al., a formal hearing or conference becomes mandatory when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it.

In Felix Perez, et al. v. PTTC, et al., the following GUIDING PRINCIPLES in connection with the HEARING REQUIREMENT in DISMISSAL CASES:1. AMPLE OPPORTUNITY means ANY MEANINGFUL OPPORTUNITY (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way;

2. a FORMAL HEARING or CONFERENCE becomes MANDATORY ONLY (a) when requested by the employee in writing or (b) substantial evidentiary disputes exist or (c) a company rule or practice requires it, or (d) when similar circumstances justify it;

3. the AMPLE OPPORTUNITY TO BE HEARD STANDARD in the Labor Code prevails over the hearing or conference requirements in the implementing rules and regulations.

While the TWIN REQUIREMENTS of NOTICE AND HEARING are INDISPENSABLE for a VALID DISMISSAL, failure to observe these requirements does not necessarily operate to invalidate or nullify the DISMISSAL for a JUST AND VALID CAUSE. A distinction should be made between the LEGALITY of the ACT of DISMISSAL and the LEGALITY of the MANNER by which the act of dismissal was performed. The first refers to the SUBSTANTIVE requirement of VALID CAUSE, the second involves the observance of the PROCEDURAL requirement of DUE PROCESS. It is now settled that where the dismissal of an employee is proven to be for a just and valid cause, but he is not accorded his right to procedural due process, the dismissal shall be upheld, but the employer must be SANTIONED for NON-COMPLIANCE with the requirements of due process. The SANCTION, which is in the nature of INDEMNIFICATION or PENALTY, depends on the facts of each case and the gravity of the omission by the employer.

It is an INDEMNITY, not separation pay, that is imposed on the employer for FAILURE TO OBSERVE THE PROCEDURAL REQUIREMENTS of notice and hearing.

The current prevailing jurisprudence in VALID DISMISSAL for JUST CAUSE but WITHOUT DUE PROCESS is Agabon v. NLRC, while VALID DISMISSAL for AUTHORIZED CAUSE but WITHOUT DUE PROCESS is Jaka Food Processing Corp. v. Darwin Pacot, et al.

Agabon pointed out, where the dismissal is for a JUST CAUSE, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employers violation of the employees RIGHT TO STATUTORY DUE PROCESS warrants the payment of INDEMNITY in the form of NOMINAL DAMAGES. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances.

The difference between Agabon and Jaka is that in the former, the DISMISSAL was for a JUST CAUSE (abandonment) under Article 282 of the Labor Code, while in the latter case, the DISMISSAL was for an AUTHORIZED CAUSE (retrenchment) under Article 283 of the Labor Code.

A dismissal for just cause under Article 282 implies that the employee concerned has committed, or is guilty of, some violation against the employer, or, as in Agabon, he has neglected his duties. Thus, the EMPLOYEE himself INITIATED the DISMISSAL PROCESS.

On the other hand, a DISMISSAL for an AUTHORIZED CAUSE under Article 283 does not necessarily imply delinquency or culpability on the part of the employee. Instead, the DISMISSAL PROCESS is INITIATED by the EMPLOYER in the EXERCISE of MANAGEMENT PREROGATIVE, i.e. when the employer opts to install labor saving devices, when he decides to cease business operations, or when, as in Jaka, he undertakes to implement a retrenchment program.

The clear-cut distinction between a DISMISSAL for JUST CAUSE under Article 282 and a DISMISSAL for AUTHORIZED CAUSE under Article 283 is the fact that in the first, PAYMENT OF SEPARATION PAY, as a rule, is NOT required, while in the second, the LAW requires PAYMENT of SEPARATION PAY.

As held in Jaka, for these distinctions, there ought to be a DIFFERENCE in the TREATMENT when the ground for dismissal is one of the JUST CAUSES under Article 282 and when based on one of the AUTHORIZED CAUSES under Article 283. Thus, the Supreme Court held that: (1) if the dismissal is based on a JUST CAUSE under Article 282 but the employer failed to comply with the notice requirement, the SANCTION to be imposed upon him should be TEMPERED because the DISMISSAL PROCESS was, in effect, INITIATED by an ACT imputable to the EMPLOYEE; and (2) if the dismissal is based on an AUTHORIZED CAUSE under Article 282 but the employer failed to comply with the notice requirement, the SANCTION should STIFFER because the DISMISSAL PROCESS was initiated by the EMPLOYERs exercise of his management prerogative.

In Agabon, the NOMINAL DAMAGES imposed against the employer is P30,000.00, while in Jaka, P50,000.00. (WITH JUST/AUTHORIZED CAUSE BUT WITHOUT DUE PROCESS)This DISTINCTION appears, however, to have been abandoned by the Supreme Court in its FRESH RULING in the case of Culili v. Eastern Telecommunications Phils., Inc., where the Supreme Court, citing Agabon v. NLRC, reverted back to the doctrine in Wenphil Corp. v. NLRC a that where the dismissal is due to JUST or AUTHORIZED CAUSE, but without observance of the due process requirements, the dismissal may be upheld but the employer must pay an INDEMNITY to the employee. The sanction/indemnity (nominal damages) imposed in Wenphil in the amount of P10,000.00 was made stiffer in Agabon where it was increased to P30,000.00 to achieve a result fair to both the employers and the employees. Thus, in Culili, the Supreme Court imposed P50,000.00 as nominal damages for the employers non-compliance with statutory due process. This FRESH RULING in Culili v. Eastern Telecommunications was subsequently reiterated in Lynvil Fishing Enterprises, Inc. v. Ariola, et al., where the Supreme Court awarded P50,000.00 as nominal damages, citing the FRESH RULING in Culili v. Eastern Telecommunication. This was again reiterated in the very recent case of De Jesus v. NLRC, where the dismissal was valid due to just cause, but without observance of procedural due process.(Wenphil (dismissal is valid [just cause/authorized cause], with payment of indemnity of P10,000.00) Serrano (dismissal is ineffectual) Agabon (dismissal is valid, with payment of indemnity in increased amount, P30,000.00) - Jaka (dismissal is valid due to authorized cause, with payment of P50,000.00 indemnity) Culili (dismissal is valid [just cause/authorized cause], with P50,000.00 indemnity).

NOTE that in Armando Aliling v. Jose B. Feliciano, et al., the Supreme Court, speaking through Justice Presbitero J. Velasco, Jr., also awarded P30,000.00 as nominal damages to an employee who was illegally dismissed for lack of just cause and procedural due process. (NO JUST CAUSE AND DUE PROCESS)An employee dismissed for a valid cause is not, therefore, entitled to reinstatement and backwages. Nor is he entitled to any separation pay as a measure of equity or compassionate social justice, if dismissed for serious misconduct arising from acts of gross indiscipline or for cause reflecting on his moral character. This doctrine is emphatically reiterated by the Supreme Court in Toyota Motors Phils. Corp. Workers Association (TMPCWA) v. NLRC and reaffirmed subsequently in Central Bandag Retreaders, Inc. v. Diasnes. It cannot award any financial assistance in his favor because it is not only against the law but also a regressive public policy.

TOTALITY OF THE INFRACTIONS RULE

An employees propensity to commit repetitious infractions evinces wrongful intent, making him undeserving of the compassion accorded by law to labor.

In any event, the company infractions committed by the employee should not be taken singly and separately but in their totality. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct and ability separate and independent of each other. It is the totality, not the compartmentalization, of such company infractions that complainant had consistently committed during his employment that justified his dismissal.

Although the employee already suffered the corresponding penalties for his past misconduct, those infractions are still relevant and should be considered in assessing his liability for his present infraction as held in Philippine Rabbit Bus Lines, Inc. v. NLRC.

The fact that an employee had worked for the company for ten (10) years, if it is to be considered at all, should be taken against him, especially so where he is a member of the companys labor union who ought to know the specific company rules pertaining to collection of fares from the riding public which is the lifeblood of the company. The longer an employee stays in the service of the company, the greater is his responsibility for knowledge and compliance with the norms of conduct and the code of discipline of the company. The serious infraction that he committed vis--vis his length of service tarnished by his previous similar and other company infractions, reflects a regrettable lack of loyalty. Loyalty that he should have strengthened instead of having taken for granted and abused. If an employees length of service is to be regarded as a justifying circumstance in moderating the penalty of dismissal, it will actually become a prize for disloyalty, perverting the meaning of social justice and undermining the efforts of labor to cleanse its ranks of all undesirables.

ARTICLE 282 OF THE LABOR CODE JUST CAUSES or acts or omissions attributable to the employee: (1) serious misconduct; (2) willful disobedience of the lawful order of the employer; (3) gross and habitual neglect of duty; (4) fraud; (5) willful breach of trust and confidence; (6) commission of a crime or offense against the person of his employer or duly authorized representative; (7) the basket or catch-all provision, that is, other causes analogous to the enumerated just causes, namely: (a) abandonment; (b) poor performance; (c) inefficiency; (d) incompetence; (e) imprisonment of the employee; (f) instigating a labor unrest; (g) fighting with a supervisor or superior; (h) unreasonable behavior or unpleasant deportment; (i) immorality, in case it is required as a standard by the employer, like in the case of teachers.

ARTICLE 283 AUTHORIZED CAUSES or acts initiated by the employer in the exercise of management prerogative: (1) installation of labor saving devices; (2) redundancy; (3) retrenchment to prevent losses; and (4) closure or cessation of operation of establishment or undertaking not due to serious business losses or financial reverses.

ARTICLE 284 DISEASE AS A GROUND OF TERMINATION. Elements: (1) The employee is found suffering from any disease; and (2) his continued employment is prohibited by law or is prejudicial to his health, as well as to the health of his co-employees.END OF THE PRESENTATION

THANK YOU AND GOD BLESS.

GOOD LUCK!

Sy v. CA, 446 Phil. 404, 413 [2003].

Uy v. Bueno, 484 SCRA 628, 14 March 2006.

Section 3, Rule I, 2005 Revised Rules of Procedure of the NLRC.

Section 2, Rule 9, Revised Rules of Court.

De Rosssi v. NLRC, 373 Phil. 17, 26-27 (1999), citing La Naval Drug Corp. v. CA, 236 SCRA 78.

Abante, Jr. v. Lamadrid Bearing and Parts Corp., et al. G.R. No. 159890, 28 May 2004.

PCI Automation Center v. NLRC, 252 SCRA 493.

PAL v. NLRC, 296 SCRA 214.

Singer Sewing Machine Co. v. Drilon, 193 SCRA 270, 24 January 1991.

Corporal v. NLRC, 341 SCRA 658, 666, 2 Oct. 2000.

Abante v. Lamadrid Bearing and Parts Corp., 430 SCRA 368.

Martinez v. NLRC, 339 Phil. 176, 183 [1997].

Rufina Patis Factory v. Alusitain, 434 SCRA 418, 428, 14 July 2004

See Joeb Aliviado, et al. v. Procter & Gamble Phils., Inc., et al., G.R. No. 160506, 9 March 2010.

DOLE Phils., Inc. v. Esteva, et al., 509 SCRA 332, 376, 30 November 2006.

Corporal v. NLRC, 341 SCRA 658, 666, 2 October 2000.

Abante v. Lamadrid Bearing and Parts Corp., 430 SCRA 368.

Villuga v. NLRC, 225 SCRA 527, 23 Aug. 1993.

Sonza v. ABS-CBN Broadcasting Corp., G.R. No. 138051, 10 June 2004.

Cesar C. Lirio v. Wilmer Genovia, G.R. No. 169757, 23 November 2011, citing Opulencia Ice Plant and Storage v. NLRC, 228 SCRA 473, 478, 15 December 1993.

Id.

SSS v. CA, G.R. No. 100388, 14 December 2000, citing Opulencia Ice Plant and Storage v. NLRC, id..

SSS v. CA, id.

G.R. No. 70705, August 21, 1989

Bienvenido D. Goma vs. Pamplona Plantation, Inc., G.R. No. 160905, July 4, 2008.

Pedro Chavez v. NLRC, et al., G.R. No. 146530, 17 January 2005.

Article 280 of the Labor Code.

Rowell Industrial Corp. v. CA, 167714, 7 March 2007.

Integrated Contractor and Plumbing Works, Inc. v. NLRC and Glen Solon, G. R. No. 152427; Palomares v. NLRC, 277 SCRA 439.

Id.

348 SCRA 441, 447.

242 SCRA 145, 156, 2 March 1995.

Collegio de San Agustin v. NLRC, 201 SCRA 398, 403, 6 September 1991.

Industrial & Transport Equipment, Inc. and/or Raymond Jarina v. Tomas Tugade, et al., G.R. No. 158539, 15 Jan. 2009, citing Joe Cinema Corp. v. Abellana, 360 SCRA 142.

Veterans Phils. Scout Security v. NLRC; Robert delos Santos v. NLRC, G.R. Nos. 78062 and 83927, respectively, 28 June 1989; Security and Credit Investigation v. NLRC, G.R. No. 114316, 26 January 2001; CALS Poultry Supply v. NLRC, G.R. No. 150660, 30 July 2002.

Chong Guan Trading v. NLRC, et al., 172 SCRA 831

Portuguez v. GSIS Family Bank, G.R. No. 169570, 2 March 2007, citing Machica v. Roosevel Center, Inc., 489 SCRA 534, 544-545, 4 May 2006.

Romeo Basay, et al. v. Hacienda Consolacion, et al., G.R. No. 175532, 19 April 2010.

Exodus Intl. Construction Corp. and Antonio Javellara v. Guillermo Biscocho, et al., G.R. 166109, 23 February 2011.

Philippine Manpower Services, Inc. v. NLRC, 224 SCRA 691 (1993).

De Jesus v. NLRC, 530 SCRA 489, 498, 17 Aug. 2007.

Eastern Overseas Employment Center, Inc. v. Bea, 476 SCRA 384, 393-394, 22 Nov. 2005.

Section 5, Rule 133 of the Revised Rules of Court.

Uniwide Sales v. NLRC, G.R. No. 154503, 29 February 2008.

Mendoza v. Rural Bank of Lucban, 7 July 2004, 433 SCRA 756; Lanzaderas v. Amethyst Security and General Services, Inc. 452 Phil. 621 (2003).

Merck Sharp and Dohme (Philippines) v. Robels, 25 November 2009, 605 SCRA 488, 500.

Norkis Trading Co., Inc. v. Gnilo, 11 February 2008, 544 SCRA 279, 291.

Benguet Electric Cooperative v. Fianza, 468 Phil. 980, 992 (2004).

Guatson Intl. Travel & Tours, Inc. v. NLRC, 230 SCRA 301.

Vinta Maritime Co. Inc. v. NLRC, 348 Phil. 714, Jan. 23, 1998

Penaflor v. Outdoor Clothing Manufacturing Corp., 21 January 2010, G.R. 177114, citing Fujitsu Computer Products Corp. of the Philippines v. CA, 494 Phil. 697, 728 (2005).

See Mendoza v. NLRC, et al., G.R. No. 131405, 20 July 1999.

LNS Intl. Manpower Services v. Armando Padua, Jr., G.R. No. 179792, 5 March 2010.

Buhain v. CA and Swift Foods, Inc., 383 SCRA 602, 2 July 2002.

Daniel P. Javellana, Jr. v. Albino Belen/Albino Belen v. Javellana Farms, Inc., et al., G.R. No. 181913/G.R. No. 182158, 5 March 2010; Petron Corp. v. NLRC, 505 SCRA 596, 616, 27 Oct. 2006.

Daniel P. Javellana, Jr. v. Albino Belen/Albino Belen v. Javellana Farms, Inc., et al., supra.

Bank of Lubao, Inc. v. Manabat, G.R. No. 188722, 1 February 2012.

BPI Employees Union Metro Manila and Zenaida Uy v. BPI; BPI v. BPI Employees Union Metro Manila and Zenaida Uy, G.R. Nos. 178699 & 178735, 21 September 2011.

Escario v. NLRC (Third Division), G.R. No. 160302, 27 September 2010, 631 SCRA 261, 275.

Siemens v. Domingo, 560 SCRA 86, 100, 28 July 2008.

Tirazona v. CA, G.R. No. 169712, 14 March 2008.

Abel v. Philex Mining Corp. 594 SCRA 683, 692, 31 July 2009.

Vertudes v. Buenaflor, 478 SCRA 200, 230, 16 December 2005.

Article 277 (b) of the Labor Code, as amended.

PLDT v. Tiamson, 511 Phil. 384, 394 (2005).

Triple Eight Integrated Services, Inc. v. NLRC, 359 Phil. 955, 964 (1998).

Hongkong and Shanghai Banking Corp. Employees Union v. NLRC, 281 SCRA 509, 6 Nov. 1997; Almodiel v. NLRC, 223 SCRA 341, 14 June 1993; San Miguel Brewery Sales Force Union (PTGWO) v. Ople, 170 SCRA 25, 8 Feb. 1989.

Aparente, Sr. v. NLRC, 331 SCRA 82, 27 April 2000; Caltex Refinery Employees Association (CREA) v. NLRC, 316 Phil. 335 (1995); Maya Farms Employees Organization v. NLRC, 293 SCRA 508.

Pantranco North Express, Inc. v. NLRC, 314 SCRA 740, 21 Sept. 1999; Palomares v. NLRC, 277 SCRA 439, 449; Union Carbide Labor Union v. Union Carbide Phils., Inc., 215 SCRA 554.

Manila Trading and Supply Co. v. Zulueta, 69 Phils. 485 (1940).

Caltex Refinery Employees Association (CREA) v. NLRC (Third Division) 316 Phil. 335 (1995), note 62, at p. 343; Radio Communications of the Phils., Inc. v. NLRC, 223 SCRA 656, 25 June 1993.

Julito Sagales v. Rustans Commercial Corp., G.R. No. 166554, 27 November 2008.

Caltex Refinery Employees Association (CREA) v. NLRC, supra note 62, at 343.

Nelson Zagala, et al. v. Mikado Phils. Corp., G.R. No. 160863, 27 September 2006.

PLDT v. Berbano, Jr., G.R. No. 165199, 27 September 2006.

Almira v. B.F. Goodrich Philippines, Inc., 58 SCRA 120, 131, 25 July 1974, cited in the case of Julito Sagales v. Rustans Commercial Corp., G.R. No. 166554, 27 Nov. 2008.

Solidbank Corporation v. NLTC, G.R. No. 165951, 30 March 2010

G.R. No. 165951, 30 March 2010, citing Philippine Commercial International Bank v. Abad, 492 Phil. 657, 663-664 (2005).

Globe Mackay Cable and Radio Corp. v. CA, 176 SCRA 778 [1989]

450 SCRA 465

Abiera v. NLRC, et al., G.R. No. 10223, Nov. 6, 1992

Felix Perez, et al. v. Philippine Telegraph & Telephone Co., et al., G.R. No. 152048, 7 April 2009.

526 SCRA 116, 29 June 2007.

G.R. No. 152048, 7 April 2009.

Falguera v. Linsangan, 251 SCRA 364.

Grepalife v. NLRC, 187 SCRA 694.

442 SCRA 573, 610-611, 17 Nov. 2004.

G.R. No. 154378, 28 March 2005.

(First Division, thru Justice Teresita J. Leonardo-De Castro) G.R. No. 165381, 9 February 2012. Note that this case involved valid dismissal due to authorized cause of redundancy, but without observance of procedural due process.

442 SCRA 573, 17 November 2004.

252 Phil. 73 (1989).

(Second Division, thru Justice Jose Portugal Perez) G.R. No. 181974, 1 February 2012. This case involved valid dismissal for just cause (serious misconduct/theft), but without observance of procedural due process.

Maria Lourdes C. De Jesus v. Hon. Raul T. Aquino, et al. (First Division, Justice Lucas P. Bersamin), G.R. No. 164662, 18 February 2013. This involved valid dismissal due to loss of trust and confidence but without observance of procedural due process.

Serrano v. NLRC, 387 Phil. 345 (2000)

G.R. No. 185829, 25 April 2012.

San Miguel v. Lao, 384 SCRA 504, 11 July 2002; Central Phils. Bandag Retreaders, Inc. v. Prudencio J. Diasnes, G.R. No. 163607, 14 Jul 2008

537 SCRA 171, 222-223 [2007]

G.R. No. 163607, 14 July 2008

Reno Foods, Inc. and/or Vicente Khu v. Nagkakaisang Lakas ng Manggagawa (NLM) - KATIPUNAN on behalf of its member, Nenita A. Capor, G.R. No. 164016, 15 March 2010, citing San Miguel Corp. v. NLRC, 325 Phil. 940, 952 (1996).

Jerry Mapili v. Philippine Rabbit Bus Lines, Inc./Natividad Nisce, G.R. No. 172506, 27 July 2011.

Challenge Socks Corp. v. CA, et al., G. R. No. 165268, 8 Nov. 2005

344 Phil. 522, 531 (1997).

Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, 395 SCRA 720, 22 January 2003.

Flores v. NLRC, et al., G.R. No. 96969, 2 March 1193.

PAGE 1