Supreme Court rulings on illegal recruitment.DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated August 17, 2014 - 12:00am

The law's protection to OFWs continues to manifest in the form of new laws and labor jurisprudence where illegal recruitment is condemned and penalized with increasing severity. The regulation of recruitment of Filipino workers for deployment abroad is becoming stricter and tighter and the Courts are becoming more and more harsh against illegal recruiters and traffickers. RA 10022, which was approved in 2010, amended substantially amended RA 8042, otherwise known as the MAGNA CARTA FOR FILIPINO MIGRANT WORKERS OF 1995, has added more acts constituting illegal recruitment and increased the penalty for the crime of illegal recruitment.

The Supreme Court has also become very hard on illegal recruitment. In one case, Pp vs Lalli ( GR 195419, 12 Oct 2011 ), the Supreme Court convicted a lady recruiter in Mindanao and sentenced her to LIFE IMPRISONMENT with a fine of two million pesos for the crime of illegal recruitment. The High Court also convicted the same woman of TRAFFICKING IN PERSON, involving the same victim, and sentenced her to another LIFE SENTENCE with another fine of half a million for deploying a young woman to Malaysia and led her to become a prostitute. The victim was also granted Moral and Exemplary Damages in the amount of six hundred thousand pesos to be paid by the convicted recruiter.

The Court held that there was no double jeopardy despite the fact that the recruiter and the victim were the same in both the Illegal Recruitment and the Trafficking cases, because the first crime is a violation of the Labor Code, as amended, and the second was a violation of a special law, R A 9208 or the Anti-Trafficking Law. In the case of Pp vs Ocden (GR 173198, 1 June 2011 ) the court affirmed the conviction of the accused even if the prosecutor did not submit any evidence showing that the accused had no license to recruit. Under the present law, even licensed recruiters may be guilty if they commit any of the acts enumerated in Article 38 of the Labor Code.

Even if the complainant later executed an affidavit of withdrawal and has forgiven the recruiter, the court may still convict her, if the withdrawal is done rather belatedly, after the prosecution has rested its case and after all the witnesses against the accused already testified and all documentary evidence already testified. It was a reiteration of the precedent in Pp vs Romero (GR 10387 to 87, 26 July 1993). The same accused victimizing the same person may be convicted of both illegal recruitment under the Labor Code and also of estafa under the Penal Code, This too was the ruling in Pp vs Yabut ( 373 Phil 575 1999. This does not constitute double jeopardy).

In Pp vs Gallo (G R 187730, 29 June 2010), the crime of illegal recruitment becomes of LARGE SCALE if the victims are at least three or more. It is deemed syndicated if the offenders number at least three. Even if the accused is not affiliated with any licensed recruitment agency, conviction can still be imposed if the elements are present. In the case of Pp Benson Ong, (G R 119594, 18 Jan 2000), even if the accused merely suggested where to apply, and which agency to approach, conviction can also be justified even if there is no money involved.

attyjosephusbjimenez@yahoo.com

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What is legal may not be ethical nor right.DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated August 16, 2014 - 12:00am

In the field of human resource management and labor relations, as well as in government service, decisions should not only be based on whether solutions are legal or not. There are other factors to consider in decision-making. The first dimension is technical feasibility. A solution must be practicable. The second factor is financial soundness. A solution must be affordable. It must pass the cost-benefit analysis, that is: That the prospective benefits should exceed its cost. The third criterion is legal viability, can the solution stand legal test and judicial scrutiny? And fourth, is ethics and moral propriety.

There is no need to dwell on the first and second factors. They are largely self-explanatory. But we need to take a closer look on the third and fourth dimension of effective decision-making. The issue of legality is easier to address because the letter and the spirit of the laws clearly spell out what the law allows and what the law prohibits. The legislative intent also indicates what good and what benefit the law wants to attain, as well as what evil it seeks to avoid. Any confusion or doubt in the interpretation and implementation of the law can be easily resolved by looking at the journal of legislative proceedings.

For instance, in the matter of hiring people, the law prohibits discrimination on the basis of gender, race, and religion. Also, Labor Law disallows discrimination intended to encourage or discourage union membership. But many companies do make decisions in hiring against women. For female personnel are entitled to too many benefits that are not required for males. There are companies today that, under the guise of exercising management prerogative to choose personnel based on their own discretion, silently they disqualify women purposely mainly because of cost considerations.

It can easily be demonstrated that employers spend more in hiring women. The female personnel enjoy a lot more benefits than men. Examples include maternity benefits of 60 days for normal delivery, and 78 days for delivery by cesarean section, leaves for battered women (RA 9262) of 10 days with full pay, and OB-GYNE leave (RA 9710) of 60 days with full pay, as well as solo parents leave (RA 8972). While it is legal to exercise management prerogative of choice, it is not ethical to shut off women just because of cost consideration.

In transferring personnel, there are many ethical factors to consider. While it is perfectly legal to move people around, provided that transfers do not entail demotion in rank or diminution in salary and benefits, the prerogative to transfer must also consider the grave implications of removing fathers and mothers from their young children, the psychological impact on growing children arising from moving to new homes and schools, disrupting classes and friendships, and creating separation anxieties in the minds of the young. A simple decision to transfer personnel may be legally defensible, and yet, it entails far-reaching effects on the behavior of employees and their family.

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In the private sectors, as well as in government, decisions may pass judicial scrutiny, but may break the unwritten rules of ethics and exceed the bounds of propriety and good customs and morals. In short, one action which may be deemed legal, can be downright unethical, improper and unbecoming. There are decisions that can be defended in Plaza Miranda, but cannot pass the test of good manners, the test of “delicadeza.”

Giant law firms are making labor justice very expensive.DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated August 14, 2014 - 12:00am

This will not endear me to my brothers and sisters in the Integrated Bar. But the truth has to be told. The reason why labor justice is becoming very expensive in this country is because many, if not most of our big law firms, are charging exorbitant attorneys' fees to their clients who are multinationals, conglomerates and giant firms, employing thousands of Filipino employees. These companies, instead of developing their own organic legal teams and learning to fight their own legal battles, are using influential law offices that can ''swing'' the directions of the legal battles. The HR and personnel departments in these corporations have become too dependent on external counsel that they cease to learn the ropes by themselves.

Under the Labor Code, Article 217 (formerly 211 ), the NLRC, like the DOLE, was created precisely for the purpose of expeditious settlement of labor disputes. These are not arenas for the legal minds to use technicalities and legal maneuvers. In fact, under Article 227, in any proceeding before the NLRC and the Labor Arbiters, the rules of evidence prevailing in the courts of law or equity shall not be controlling. It is the spirit and the intention of the Labor Code that should prevail. And the intention is really to promote speedy, expeditious and inexpensive labor justice. Thus, the Labor Arbiters are mandated to use every and all reasonable means to ascertain the facts in each case speedily and objectively, and without regard to the technicalities of law or procedure, all in the interest of due-process.

What is happening however is the complete opposite of this provision. Brilliant legal luminaries often use technicalities to delay the case. Lawyers from Manila come down to Cebu or put up their offices here and charge their clients a bundle of legal fees. Even a telephone conversation with clients is timed and charged. Pleadings and documentations are charged. Appearances are charged even if it is only to ask for postponement or to request for extension of time to file a position paper or a motion. These are matters that border on some possible violations of legal ethics. And the Integrated Bar should take this up objectively because these are some of the reasons why lawyers are looked with contempt by certain quarters in our society.

Lawyers file a hundred pages of pleadings and they call them “brief.” They often ask for more time to confer with clients. And Labor Arbiters, at times, are very liberal in granting extension, in the name of due-process. It is often alleged, that lawyers who are fraternity brothers of some Commissioners and Arbiters are treated with much tolerance and questionable understanding. Meanwhile, workers who are indigents, who still have to ask for a public attorney, are often being pressured and “harassed” to comply with the reglementary periods strictly. These and many other more

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nefarious practices are being whispered about in the corridors of labor justice. Somebody has to raise this matter as an issue of grave concern.

Justice in labor offices should not only be not delayed but also must be accessible to the poorest of the poor. Lawyers should not use their acumen to defeat the noble ends of the wheels of justice. I am a lawyer too and I know there are more good lawyers than undesirable ones. But let us look at ourselves and examine our conscience. Is there truth to all the allegations against us?

Job security and management prerogatives.DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated August 12, 2014 - 12:00am

Ignorance of our labor laws should never excuse any employer or employee from compliance. That is why we are advocating for workers' and employers' education as a proactive strategy. And, by this column, we are trying to help prospective complainants and respondents in labor litigation, by sharing with them the fundamentals in labor-management relations. The reason why there are thousands of labor cases pending in the dockets of our Labor Arbiters, in the National Labor Relations Commission and the DOLE is largely because of ignorance of the law. The big law firms are earning millions in attorney's fees due to this endemic lack of proper and adequate knowledge. The HR and personnel managers should undertake some draconian measures, like a series of learning sessions, to help both personnel and management.

Let us start with the fundamental concepts of job security and management prerogatives. It is basic that under our laws, regular workers enjoy tenurial security, that is: they cannot be dismissed unless management can prove, by substantial evidence, that the employees have committed acts that may constitute as just causes for termination. That is the substantive element. The procedural part is called due-process, that is: first, the employee must be issued a written charge which specifies the act constituting the offense; second, he or she must be given an opportunity to be heard, including the right to be assisted by a lawyer of his/her choice and the right to present evidence to support his/her defense. Third, the employee must be given a written notice of the decision, either finding guilt or absolving from any liability.

While employees have job security, management has the inherent prerogative to hire, assign, transfer, promote, discipline or dismiss any of them for cause and after due process. Management prerogative is an essential component of the employers' rights to manage their business. Thus, the government cannot just deprive management of these prerogatives, otherwise, the rights of employers may also be violated. Under our system of labor laws, the mandate to afford full protection to labor does not mean that employers should be oppressed or deprived of their fundamental rights to manage their business in a manner that they best think is for the attainment of profits. Therefore, it can be said, and rightly so, that labor laws demand a delicate balancing act on the part of government.

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The prerogative of employers to hire means that they can choose the best from among job applicants, and their choice cannot be attacked as a form of discrimination, except if the discrimination is based on gender, religion or marital status. Employers can not disqualify one because she is a woman or LGBT, or that she is not a Catholic, or that he is married or is a single parent. But certainly, employers can disqualify applicants because of age, lack of education, limited height or excessive weight, or is diagnosed to be hypertensive, or she has a tattoo, or wears a ring in his nose. These are valid disqualifying criteria, in the exercise of management prerogatives. In fact, it is perfectly legal for an employer to state that only applicants from UV, Gullas Law School or the Vicente Gullas School of Medicine may apply. That is the right of the employer. No union or government agency can tell employers otherwise.

Also, employees cannot refuse any valid assignment or transfers. For such would constitute insubordination. Any form of willful disobedience to a lawful order given by a superior in relation to work, may be a just cause to dismiss. The Supreme Court has consistently upheld the right of employers to dismiss disobedient employees, most especially managerial personnel. To whom much has been given, much is expected. Thus managers must be the first to obey. However, the prerogative to transfer must not be abused nor be used to harass, persecute or ease out personnel. Any transfer that carries a demotion in rank or a diminution in salaries may be questioned as a form of constructive dismissal, or a disguised form of transfer that can be construed (hence, constructive) as illegal dismissal.

Any victim of illegal dismissal may be ordered reinstated with full backwages, or if reinstatement is no longer feasible, to a payment of separation pay of one month pay for every year of service, a fraction of at least six months being considered as one year, (in addition to backwages). If the dismissal was done in a manner that violates the basic rights of the employee, and when he suffers mental anguish, serious anxiety, wounded feelings or social humiliation (say, his photo was published unduly in the newspapers), then moral damages may be awarded as well, exemplary damages may also be awarded if the manner of termination was high-handed, abusive and insulting.

Attorney's fees are also given for compelling the personnel to spend legal fees to fight for his/her right.

By the way, employers cannot terminate employees. They can only terminate the services. To terminate personnel is murder.

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Love, sex, romance, and harassment in the workplace.DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated August 11, 2014 - 12:00am

One of the most attended and most often demanded among the many seminars and workshops that I conduct every week for so many companies and conglomerates, as in-house learning sessions for managers, supervisors, HR, and personnel staff and even union leaders and employees, in general, is the session on Love, Sex, Romance, and Sexual Harassment in the Work Place. The approach that we use is both legal and behavioral. We always explain that human behavior in corporate settings and in inter-personal relationships are brought about by behavioral causes that impinge on human psychology. But the effects and implications have definite relation to law and the legal principles of offenses and penalties. People learn a lot and enjoy the sessions immensely. My hands are full and my schedules are nerve-wracking. But I enjoy doing what I do.

In this column, we shall focus on the legal dimension of it. We stress that the Labor Code considers it a just cause to terminate employment for employees to commit SERIOUS MISCONDUCT. One offense that falls under this just cause is sexual misconduct, immorality, and sexual harassment. The Supreme Court has allowed the dismissals of business executives and managers, and even rank-and-file workers for committing some sex-related offenses, like acts of lasciviousness, attempted rape, seduction of minors, and violations of the Ant-Sexual Harassment Law. As long as the erring employee is granted due-process, when found guilty, he will surely lose his job, forfeit all benefits and exit dishonorably. Even if the victim does not complain, when done inside company premises, management can initiate charges based on facts.

In the leading case, involving famous food chain, a top manager lost his job for his impropriety in driving to a motel a young subordinate and her boyfriend, against the girl's will. In a pharma company, a sales manager was kicked out from his job for sexually assaulting an attractive medical representative who boldly defended herself against the sexual attack of her boss. The woman filed her complaint and her erring

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boss was dismissed into ignominy. In an electronic manufacturing firm in Laguna, a male superior and his female subordinate committed sexual act inside the room of his boss, at a time when the two should be working in the graveyard shift. They were both married but not to each other, and they did it on top of the office table, after drinking liquor to perk up their sexual appetite. What is more blatant was that they did it while a third employee witnessed the act, from the time it commenced until it was consummated. All of them lost their jobs.

The law is even stricter when it comes to teachers and employees in the academe. Two teachers in a technical school in Bulacan were both dismissed because of their amorous, if scandalous, romantic relationships inside the campus, which scandalized the students and aroused the anger and resentment of both the owners and other faculty members. They both filed cases of illegal dismissals. But the case was dismissed. In Bohol, there was a Catholic school, where its principal was sexually and romantically involved with a pretty minor pupil. He was forthwith kicked out. His wife who was also teaching there was not given any teaching load for trying to cover up the impropriety of her husband. There are many sexual offenses involving even the top state university in the country when one of its professors lured young girls into his house and raped them, one after the other, after taking nude photos of his hapless victims.

The latest Supreme Court decisions on labor contractingDIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated August 6, 2014 - 12:00am

After all the seminars, the conferences and the workshops, it is sad to note that employers still keep on committing the same mistakes. Company owners do not listen to their personnel and HR managers. Management seems never to learn. The companies always take the risks as business judgment, so to say. They use labor-only contracting and project employment as a scheme to save money. Then they end up spending a lot of more money in litigation and in attorney's fees. They try to save on a few thousands in terms of labor cost, and yet, when the adverse decisions come, the good name and reputation of the company is ruined, or besmirched, and they end up losing millions in legal expenses. The workers are paid pittance and the giant law firms end up collecting fat attorney's fees. This is a phenomenon that we need to rectify. And do it fast.

The Supreme Court has never wavered in its consistent array of labor decisions. Labor-only contracting is absolutely prohibited. Employers must deal only with legitimate job contractors that have substantial capital (at least, 3 million paid-up), and the work to be contracted should not be usually necessary or desirable to the usual or main business or trade of the employer. In A S Alilin vs PC (name of a big oil firm is withheld to protect its reputation), GR 177592, the Supreme Court on 09 June 2014, again ruled against the principal employer for dealing with a labor-only contractor since the 1990's. The Court held the company liable for all the benefits and wages of the workers who worked for so long and uninterrupted. The nature of work done was part of the essential work related to the oil industry.

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The High Court quoted its ruling in the case of Digitel Telecom ( GR 184903-94, 10 Dec 2012, 683 SCRA 466 ), and also the ruling in the case of Garden of Memories Park and Life Plan, GR 160778, 08 Feb 2012, 665 SCRA 293. The Supreme Court held that the principal employer bears the burden of proof when it alleges that its contractor is legitimate. It is not the duty of the workers to prove that the contractor is a labor-only contractor. It is rather the duty of the principal employer that the contractor has substantial capital. The lawyers know all about this case. The personnel managers also know this. Then why are the companies still practicing this legally denounced activity? Is it only a matter of saving labor cost, which, in many cases is being justified as a legitimate business judgment?

In another new case, decided on 26 February 2014, the Supreme Court ruled in the case of MacArthur Malicdem vs MIC, GR 204206 that a project employment that has been repeated and repeated involving the same workers for a regular work, which is not really a project, is really a REGULAR JOB. The employers cannot hide under the scheme of Project employment in order to deprive the workers from the wages and salaries and benefits of regular employees. The High Court explained the philosophy of these rulings, quoting Maraguinot vs NLRC (348 Phil 580), is to implement Article 286 of the Labor Code. The Court could not allow circumvention of the law by allowing employers' scheme to prevent workers from acquiring regular status. The Court and the DOLE, as instrumentality of the State has the mandate and the duty to afford full protection to labor.

Job order workers: The modern “aliping saguiguilids.”DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated July 18, 2014

There is a great hypocrisy on the part of government, if we may say so, with all due respect, when it pressures private sector employees to pay minimum wages, all the statutory benefits and enroll their workers with the SSS, PhilHealth, Pap-Ibig, ECC and give them a set of truly just and humane conditions of work. And yet, government itself employs hundreds of thousands of lowly JOB ORDER WORKERS, who are not even called employees since their work arrangement explicitly denies employer-employee relationship. These people do not have benefits. If they get sick, they have no medicare benefits. They are not covered by the government's socialized housing program. If and when they are injured or die in the course of their employment, they are not covered by workmen's compensation. They will just lie there and die there.

These JOB ORDER WORKERS are much lower in category compared to the CASUALS and CONTRACTUALS. At least the latter have employer-employee relationships with the government. They have rights and benefits, albeit limited and often delayed. The J. O. workers do not even exist in the legal documents. The term does not exist in the Civil Service Law. Thus the Civil Service regulations neither cover nor protect them. They are simply outside the coverage of law. They are non-entities and, in the eyes of the law, they do not exist. And yet, government agencies do hire them by the

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hundreds and even by the thousands. Their labor is being used at the lowest cost in order to do the most difficult, dirty, dangerous, and degrading jobs. How dare the government say that they are not its employees.

It is thus a major irony which the DOLE, the CSC, and the Commission on Human Rights should look into, and even Congress itself, in aid of legislation. After all, the overall vision of the sovereign Filipino people, and the corresponding mandate upon government, as postulated in the Preamble of our Constitution, is to build a just and humane society. How can we pursue social justice and a humanistic society when right there in the echelons of our government bureaucracies, we are promoting discrimination in the workplace. This is plain and blatant discrimination because these job order workers perform their tasks, side by side with better paid, well-provided personnel who are, by the way, not necessarily more productive than these lowly workers. They are required to report on time, prepare time records, obey rules. And they are NOT deemed employees.

In the olden times, when slavery was not yet outlawed in our homeland, there were maharlikas, who were the freemen, the controlling elite and the wielders of both social and economic powers. But, on the other hand, there were two kinds of serfs or slaves: first, the ALIPING NAMAMAHAYS who were allowed to live in their own dwelling places, no matter how lowly. And second, the ALIPING SAGUIGUILIDS, the even lower kind of serfs who just slept around the houses of the masters and the maharlikas. They just wait to be called, to be ordered, to be sent on errands, to be directed to help in tribal battles and expeditions. They are the ones who carried heavy burdens, they even carried the children of the masters in hammocks and serve as their stepping stairs when masters wished to go higher in many journeys and travels along jungles and rivers.

Today, the job order workers in government are the nearest approximation of the aliping saguiguilids. They clean stinking toilets that not even the casuals and the contractuals would dare touch. They are asked to run and buy supplies and foods for the more privileged sectors among the civil service personnel.

The latest Supreme Court decisions on illegal dismissal.DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated June 21, 2014 - 12:00am

The dockets of the highest court of the land, even with its fifteen justices, is clogged with thousands of cases that require careful analysis and deliberations before each one is resolved with finality. The cases include criminal, civil, tax, immigration, administrative and the most numerous are the labor disputes, earlier decided by the labor arbiters, the NLRC (National Labor Relations Commission), and the Court of Appeals. The Supreme Court is divided into three divisions with five Justices each. An ordinary case is resolved by a division but those that are precedent-setting and landmark cases are decided by all the Justices, or the Court En Banc. It is important for all of us to be updated on the latest rulings by the High Tribunal.

As a Law Professor and Bar Reviewer, this writer is going on a lecture caravan in twelve universities all over the land, in preparation for the 2014 Bar examinations in October. Lately, the High Court has come up with important decisions that need to be

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discussed and analyzed for the guidance of all concerned, including students, employers, unions and employees. One of these rulings was promulgated on 29 January 2014, in the case of Grand Asian Shipping Lines (GR 178184). In this case the Supreme Court has come up with many important pronouncements that we should all be aware of. This involves a ship captain, a chief engineer, and many crew members who were dismissed due to pilferage of fuel and anomalies involving a big sum of money.

In this case, the court approved the dismissal of the ship captain and the chief engineer based on loss of trust and confidence but disapproved the termination of employment of the crew members for lack of substantial evidence. The court stressed the well-settled principle in labor law that the employer bears the burden of proof in cases of termination of employment. The degree of proof required to justify dismissal is only substantial evidence. There is no need to have proof beyond reasonable doubt, which is required in criminal cases, nor preponderance of evidence which is needed in civil cases. Substantial evidence is that quantum of proof which a reasonable mind might accept as enough to support a logical conclusion. These are principles that are cast in stone in labor jurisprudence.

What is new in this case is that the Supreme Court held that, in loss of trust and confidence, a distinction should be made between managerial employees, where the law is more strict, and rank-and-file, where the law is rather more lenient. In the case of rank-and-file, loss of trust and confidence, as a just cause for valid dismissal, requires proof of actual involvement in the acts or series of acts that led to such breach of trust. With respect to managerial personnel, the mere existence of some basis for believing that such personnel has exceeded the bounds of confidence of his employer would suffice for his dismissal. For this reason, the Court held as valid the dismissal of the Captain and the Chief Engineer (their positions were deemed managerial) but exonerated the mere crew members.

As to the money claims, the High Tribunal ruled that managerial employees are not entitled, under Article 82 of the Labor Code, to holiday pay, service incentive leave with pay, or of premium pay for work done on holidays and rest days. Field personnel (those who perform duties outside the company premises and whose actual working hours in the field cannot be determined with reasonable certainty) are also not entitled to such benefits. Whilst the ship's crew members are not deemed field personnel, because their working hours are, in fact, closely monitored by the captain and the chief engineer, nonetheless, in this case, they are not entitled to such benefits. The reason is simple. Management is using 365 as divisor in paying their monthly salary. Thus, all the 365 days in the whole year are deemed fully paid.

Violations of the Minimum Wage Law is subject to criminal prosecution, under the Labor Code, as amended by RA 6727 and RA 8188. In addition, the erring employers are liable to pay double indemnity or twice as much as the amount unpaid to the workers. Moreover, the court also affirmed the award of attorney's fees at ten per cent of the total monetary award. This is because the employees were compelled to spend money in order to recover what were denied to them by the employer. Actual and compensatory damages were not allowed for lack of factual basis. Neither was there any basis for an award of moral damages because there was no evidence of bad faith. Finally, exemplary damages could not be granted either because there was no proof that the dismissal was done in a wanton, oppressive or malevolent manner.

Indeed, The High Court, beset as it is with thousands of cases, involving all sorts of conflicts, from the most earth-shaking to the most trivial and mundane, involving the rich and most powerful, as well as the humblest and marginalized, from senators to

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janitors, ship captains and the lowest-ranking crew, continues to rule on cases that reflect the daily struggles of men and conglomerates. It is important that we, however humble we are, should know what the High Court says on such cases. And knowing, we shall, in our own daily struggles, decide with wisdom and reason.

Loss of confidence due to conflict of interests.DIRECT FROM THE LABOR FRONT By Atty. Josephus B. Jimenez (The Freeman) | Updated June 7, 2014 - 12:00am

The Supreme Court recently decided a case involving a big university in Baguio and its college dean, who was "compelled" to resign due to conflict of interests, when the latter formed a corporation of his own, for the purpose of conducting board review classes and tutorial center. The act of the dean was deemed a case of conflict of interests because it was in direct competition with the university. The highest court of the land considered the "forced resignation" as a virtual dismissal, but a valid one and a legitimate exercise of the university administration's management prerogative. This was in the case of Baguio Central University versus Dean I.G, ( name withheld to protect his reputation), in case numbered GR 188267, decided by the High Court on 02 December 2013 through Justice Arturo D. Brion.

The dean was hired by the university in 1991 but in 2005, he organized a review and language center, using the university's main campus as the official address stated in the articles of incorporation. The incorporation documents stated that the center's primary purpose was to conduct review classes for the board exams for teaching, nursing and engineering, and its secondary purpose was to offer tutorials and proficiency training for foreign languages. The dean also caused the putting up just outside the university campus of a big streamer inviting enrollees to the center. The university president called the dean's attention. Thereafter, the dean tendered his ''resignation'' and forthwith filed a case of illegal dismissal before the Labor Arbiter on 08 December 2005. He alleged constructive dismissal and asked for reinstatement and damages.

On 30 June 2006, the labor arbiter decided in favor of the dean and ordered the university to pay him separation pay, in lieu of reinstatement and granted all money claims and the plea for tax refund. On appeal, the NLRC reversed the decision on 28 November 2007, ruling that there was a just cause to terminate the dean's services. The dean elevated the case to the Court of Appeals, which, on 12 March 2009, decided in the Dean's favor agreeing with the labor arbiter's original judgment. The Supreme Court, however, in turn, reversed the Court of Appeals and agreed with the NLRC. The highest court ruled that the university acted correctly in terminating the employment of the dean. The main reason for so deciding was conflict of interests, resulting to loss of confidence. The law on the matter is well-settled in the annals of our labor jurisprudence.

Loss of trust and confidence is a just cause for dismissal under Article 282 ( now Article 288 ) of the Labor Code. The Supreme Court held that, first of all, the position of dean is a position of trust and confidence. Secondly, the act of putting up a review center, in direct competition with the university, was a clear case of conflict of interests. The High Court approved the decision of the university because the act of the dean was clearly proven by competent evidence, including admission. The Supreme Court stressed that, as applied to the dismissal of managerial employees, the employer (University) enjoys a wider latitude of discretion. To drive home its point, the court said: " Employers are not required to present proof beyond

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reasonable doubt as mere existence of some basis for believing that such employee has breached the trust of the employer would suffice for dismissal."

As long as the employer ''has reasonable ground to believe that the employee concerned is responsible for the purported misconduct, and the nature of his participation therein rendered him unworthy of the trust and confidence demanded of his position, the dismissal on such ground would be valid.'' It is not a valid defense that the university did not suffer any damage or that the dean did not gain anything because the venture did not materialize at all. The heart of the principle of loss of confidence is that the dean did, in fact, breach the forbidden line of expected propriety and fidelity to trust. The court only focused on the fact that he was the dean and that he violated his employer's trust by trying to engage in business, which was in direct competition with that of his employer, the university.

The Supreme Court concluded its decision by reiterating what is now a settled doctrine: An employer may not be compelled to continue in its employ a person whose continuance in the service would patently be inimical to its interests. The Court however, awarded the dean the amount of thirty thousand pesos, by way of nominal damages, because the university failed to afford him due-process, as required by the Labor Code. This is in consonance with the Agabon doctrine (485 Phil 248, and Concepcion versus Minex, 663 SCRA 496, 24 January 2012). This case should serve as a warning to all deans and school administrators who are similarly situated. HR managers of educational institutions may get in touch with this columnist as president of People Management Association of the Philippines and enjoy the privilege of free consultations on the matter.

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