UPDATES Labor Jurisprudence Atty. Marlon J. Manuel.

UPDATES Labor Jurisprudence

Atty. Marlon J. Manuel

Probationary employees can join a union and can vote in a CE Any employee, whether employed for a

definite period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization. In a certification election for the bargaining unit of rank and file employees, all rank and file employees, whether probationary or permanent are entitled to vote. As long as probationary employees belong to the defined bargaining unit, they are eligible to support the petition for certification election.

NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary, July 31, 2009

Confidential Employees Confidential employees are those who (1)

assist or act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two (2) criteria are cumulative, and both must be met

The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the “confidential employee rule.”

Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. Asia Brewery, August 3, 2010

Confidential Employees

Payroll Master and employees who have access to salary and compensation data are NOT Confidential employees. Their position do not involve dealing with confidential labor relations information.

San Miguel Foods v. SMC Supervisors and Exempt Union, August 1, 2011

20% requirement must be at the time of union registration Art. 234(c) requires the list of names of all

the union members of an INDEPENDENT UNION comprising at least 20% of the bargaining unit. This should not be equated with the list of workers who participated in the organizational meetings (par [b]).

Subsequent affidavits of retraction (withdrawal of membership) will not retroact to the time of the application for registration or even way back to the organizational meeting.

Eagle Ridge Golf and Country Club v. CA, March 18, 2010

Charter Certificate NOT required to be certified under oath The charter certificate need not be

certified under oath by the local union’s secretary or treasurer and attested to by its president.

Considering that the charter certificate is prepared and issued by the national union and not the local/chapter, it does not make sense to have the local/chapter’s officers certify or attest to the due execution of such document.

Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp., March 16, 2011

Mixture of R&F and Supervisory employees does not negate the union’s legitimacy

The mixture of rank-and-file and supervisory employees in a union does not nullify its legal personality as a legitimate labor organization.


As amended by R.A. 9481, the Labor Code now allows a R&F union and a Supervisory union of the same company to be part of the same federation.

Voluntary Recognition An employer cannot ignore the existence of a legitimate labor

organization at the time of its voluntary recognition of another union. The employer and the voluntarily recognized union cannot, by themselves, decide whether the other union represented an appropriate bargaining unit.

The employer may voluntarily recognize the representation status of a union in unorganized establishments. SLECC WAS NOT AN UNORGANIZED ESTABLISHMENT WHEN IT VOLUNTARILY RECOGNIZED SMSLEC AS ITS EXCLUSIVE BARGAINING REPRESENTATIVE ON 20 JULY 2001. CLUP-SLECC AND ITS AFFILIATES WORKERS UNION FILED A PETITION FOR CERTIFICATION ELECTION ON 27 FEBRUARY 2001 AND THIS PETITION REMAINED PENDING AS OF 20 JULY 2001. THUS, SLECC’S VOLUNTARY RECOGNITION OF SMSLEC ON 20 JULY 2001, THE SUBSEQUENT NEGOTIATIONS AND RESULTING REGISTRATION OF A CBA EXECUTED BY SLECC AND SMSLEC ARE VOID AND CANNOT BAR CLUP-SLECCWA’S PRESENT PETITION FOR CERTIFICATION ELECTION.

Sta. Lucia East Commercial Corporation v. Hon. Secretary Of Labor, August 14, 2009

Certificate of Non-Forum Shopping NOT required in PCE

There is no requirement for a certificate of non-forum shopping in the Labor Code or in the rules.

A certification proceeding, even though initiated by a “petition,” is not a litigation but an investigation of a non-adversarial and fact-finding character. Such proceedings are not predicated upon an allegation of misconduct requiring relief, but, rather, are merely of an inquisitorial nature.

SAMMA-LIKHA v. SAMMA Corporation, March 13, 2009

Petition for Certification Election The Secretary of Labor and Employment dismissed the

first petition as it was filed outside the 60-day freedom period. Subsequently, another petition for CE was filed, this time within the freedom period. Is this later Petition barred?

At that time therefore, the union has no cause of action since they are not yet legally allowed to challenge openly and formally the status of SMCGC-SUPER as the exclusive bargaining representative of the bargaining unit. Such dismissal, however, has no bearing in the instant case since the third petition for certification election was filed well within the 60-day freedom period. Otherwise stated, there is no identity of causes of action to speak of since in the first petition, the union has no cause of action while in the third, a cause of action already exists for the union as they are now legally allowed to challenge the status of SMCGC-SUPER as exclusive bargaining representative.

Chris Garments Corporation v. Hon. Patricia A. Sto. Tomas and Chris Garments Workers Union-PTGWO, January 12, 2009

Union’s legal personality not subject to collateral attackThe legal personality of petitioner

union cannot be collaterally attacked in the certification election proceedings. A separate action for cancellation of the union’s registration/legal personality must be filed.


As amended by R.A. 9481, the Labor Code now provides that, in certification election cases, the employer shall not be considered a party with a concomitant right to oppose a petition for certification election.

Union’s legal personality not subject to collateral attack

The legal personality of petitioner union cannot be collaterally attacked in the certification election proceedings. A separate action for cancellation of the union’s registration/legal personality must be filed.

Legend International Resorts v. Kilusang Manggagawa ng Legend, February 23, 2011

Employer as Bystander Except when it is requested to bargain collectively,

an employer is a mere bystander to any petition for certification election; such proceeding is non-adversarial and merely investigative, for the purpose thereof is to determine which organization will represent the employees in their collective bargaining with the employer. The choice of their representative is the exclusive concern of the employees; the employer cannot have any partisan interest therein; it cannot interfere with, much less oppose, the process by filing a motion to dismiss or an appeal from it; not even a mere allegation that some employees participating in a petition for certification election are actually managerial employees will lend an employer legal personality to block the certification election. The employer's only right in the proceeding is to be notified or informed thereof.

Republic of the Philippines, represented by DOLE, v. Kawashima Textile, July 23, 2008

Holy Child Catholic School v. HCCS-TELU-PIGLAS, July 23, 2013

Whoever alleges fraud/misrepresentation has burden of proof

The charge that a labor organization committed fraud and misrepresentation in securing its registration is a serious charge that should be clearly established by evidence and the surrounding circumstances.

The petitioner (the party that filed the Petition for Cancellation) has the burden of proof.

Yokohama Tire Phils. v. Yokohama Employees Union, March 10, 2010; Heritage Hotel Manila v. PIGLAS-Heritage, October 30, 2009

Signing of Petition for CE not disloyalty

The mere signing of the authorization in support of a Petition for Certification Election before the “freedom period,” is not sufficient ground to terminate the employment of union members under the Union Security Clause respondents inasmuch as the petition itself was actually filed during the freedom period.

PICOP Resources, Inc. v. Tañeca, August 9, 2010

CBA’s 5-year term While the parties may agree to extend the CBA’s

original five-year term together with all other CBA provisions, any such amendment or term in excess of five years will not carry with it a change in the union’s exclusive collective bargaining status. By express provision of the above-quoted Article 253-A, the exclusive bargaining status cannot go beyond five years and the representation status is a legal matter not for the workplace parties to agree upon. In other words, despite an agreement for a CBA with a life of more than five years, either as an original provision or by amendment, the bargaining union’s exclusive bargaining status is effective only for five years and can be challenged within sixty (60) days prior to the expiration of the CBA’s first five years.

FVC Labor Union-Philippine Transport and General Workers Organization (FVCLU-PTGWO) v. Sama-Samang Nagkakaisang Manggagawa Sa FVC-Solidarity Of Independent And General Labor Organizations (SANAMA-FVC-SIGLO), November 27, 2009

Bargaining UnitThe test of grouping is community or

mutuality of interest.There should be only one bargaining unit

for employees involved in “dressed chicken” processing and workers engaged in “live chicken” operations.

Although they seem separate and distinct from each other, the tasks of each division are actually interrelated and there exists mutuality of interests which warrants the formation of a single bargaining unit.

San Miguel Foods v. San Miguel Corp. Supervisors and Exempt Union, August 1, 2011

1 Union; 2 Bargaining Units

An academic institution should have two bargaining units: one for academic personnel; and another for non-academic personnel.

The differences, however, between the two categories of employees are no substantial enopugh to warrant a dismissal of a petition for certification election, seeking an election for only one unit.

The solution should be to hold two certification elections.

Holy Child Catholic School v. HCCS-TELU-PIGLAS, July 23, 2013

ULP Violation of the union shop agreement in

the CBA, even assuming it was malicious and flagrant, is not a violation of an economic provision in the agreement. Hence, not ULP.

An outsourcing program that would not result to any transfer or dismissal of the employees who are members of the bargaining unit cannot be considered as a “reduction of positions in the collective bargaining unit” and cannot be considered as interference with the right to self-organization.

BPI Employees Union-Davao v. BPI, July 24, 2013

ULPRetrenchment in good faith is not ULP.The fact that the retrenchment program

was implemented on a company-wide basis shows that the scheme was not calculated to stymie union activities.

Absent any perceived threat to the union’s existence or a violation of the employees’ right to self-organization, the company cannot be said to have committed ULP.

Pepsi Cola Products v. Molon et al., February 18, 2013

ULPRemoval of chairs, which had been

provided for more than three decades, was not ULP. The rights of the Union under any labor law were not violated.

Since the CBA stated that any benefit not expressly provided for in the CBA shall be deemed as purely voluntary acts, and shall not be construed as obligation of the company, its subsequent removal was valid. The long practice did not convert it into an obligation or a vested right in favor of the union.

Chairs not “benefits”, hence, not covered by the prohibition against diminution.

Royal Plant Workers Union v. Coca Cola Bottlers, April 15, 2013

ULP In Silva v. National Labor Relations Commission, we explained

the correlations of Article 248 (1) and Article 261 of the Labor Code to mean that for a ULP case to be cognizable by the Labor Arbiter, and for the NLRC to exercise appellate jurisdiction thereon, the allegations in the complaint must show prima facie the concurrence of two things, namely: (1) gross violation of the CBA; and (2) the violation pertains to the economic provisions of the CBA.

This pronouncement in Silva, however, should not be construed to apply to violations of the CBA which can be considered as gross violations per se, such as utter disregard of the very existence of the CBA itself, similar to what happened in this case. When an employer proceeds to negotiate with a splinter union despite the existence of its valid CBA with the duly certified and exclusive bargaining agent, the former indubitably abandons its recognition of the latter and terminates the entire CBA.

Employees Union of Bayer v. Bayer Phils., December 6, 2010

ULP A CBA which prescribes three categories of

employees (probationary, regular, casual) and provides for the definition, functions and duties of each, serves as a limitation on management’s prerogative of outsourcing parts of its operations, particularly if it involves functions or duties specified under the CBA.

While the engagement of a contractor was not ULP, it was not in keeping with the intent and spirit of the CBA. With the provision on casual employees, the hiring of contractual employees was not in keeping with the spirit and intent of the CBA.

The CBA delimit the free exercise of management prerogative pertaining to the hiring of contractual employees.

Goya v. Goya Employees Union, January 21, 2013

ULP For a charge of unfair labor practice to prosper,

it must be shown that the employer was motivated by ill-will, bad faith or fraud, or was oppressive to labor. The employer must have acted in a manner contrary to morals, good customs, or public policy causing social humiliation, wounded feelings or grave anxiety. While the law makes it an obligation for the employer and the employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement.

Manila Mining Corporation Employees Association v. manila Mining Corp., September 29, 2010

ULP Basic is the principle that good faith is presumed

and he who alleges bad faith has the duty to prove the same. By imputing bad faith to the actuations of CAB, CABEU-NFL has the burden of proof to present substantial evidence to support the allegation of unfair labor practice. Apparently, CABEU-NFL refers only to the circumstances mentioned in the letter-response, namely, the execution of the supposed CBA between CAB and CABELA and the request to suspend the negotiations, to conclude that bad faith attended CAB’s actions. The Court is of the view that CABEU-NFL, in simply relying on the said letter-response, failed to substantiate its claim of unfair labor practice to rebut the presumption of good faith.

Central Azucarera de Bais Employees Union v. Central Azucarera de Bais, November 17, 2010

Bonus in the CBA Generally, a bonus is not a demandable and

enforceable obligation. For a bonus to be enforceable, it must have been promised by the employer and expressly agreed upon by the parties. Given that the bonus in this case is integrated in the CBA, the same partakes the nature of a demandable obligation. Verily, by virtue of its incorporation in the CBA, the Christmas bonus due to respondent Association has become more than just an act of generosity on the part of the petitioner but a contractual obligation it has undertaken.

Lepanto Ceramics v. Lepanto Ceramics Employees Association, March 2, 2010; Eastern Telecoms v. Eastern Telecoms Employees Union, February 8, 2012

Grievance Petitioners clearly and consistently questioned

the legality of RGMI’s adoption of the new salary scheme (i.e., piece-rate basis), asserting that such action, among others, violated the existing CBA. Indeed, the controversy was not a simple case of illegal dismissal but a labor dispute involving the manner of ascertaining employees’ salaries, a matter which was governed by the existing CBA.

Article 217(c) of the Labor Code requires labor arbiters to refer cases involving the implementation of CBAs to the grievance machinery provided therein and to voluntary arbitration.

Moreover, Article 260 of the Labor Code clarifies that such disputes must be referred first to the grievance machinery and, if unresolved within seven days, they shall automatically be referred to voluntary arbitration.

Santuyo v. Remerco Garments, March 22, 2010

Grievance

Individual employees cannot raise a grievance.

Only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators.

A FEDERATION cannot raise a grievance on behalf of members of its local/chapter.

Insular Hotel Employees Union v. Waterfront Insular Hotel, September 22, 2010

Arbitral Award While an arbitral award cannot per se be

categorized as an agreement voluntarily entered into by the parties because it requires the intervention and imposing power of the State thru the Secretary of Labor when he assumes jurisdiction, the arbitral award can be considered an approximation of a collective bargaining agreement which would otherwise have been entered into by the parties, hence, it has the force and effect of a valid contract obligation.

Cirtek Employees Labor Union v. Cirtek Electronics, November 15, 2010

Arbitral Award The hold-over principle, i.e., the duty of the

parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing CBA until a new agreement is reached by the parties applies to an imposed CBA (i.e., an arbitral award).

The law does not provide for any exception nor qualification on which economic provisions of the existing agreement are to retain its force and effect. Likewise, the law does not distinguish between a CBA duly agreed upon by the parties and an imposed CBA.

General Milling Corporation-ILU v. General Milling Corp., June 15, 2011

Union Security Clause Another cause for termination is dismissal from

employment due to the enforcement of the union security clause in the CBA.

A stipulation in the CBA authorizing the dismissal of employees are of equal import as the statutory provisions on dismissal under the Labor Code, since “a CBA is the law between the company and the union and compliance therewith is mandated by the express policy to give protection to labor.”

In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the decision of the union to expel the employee from the union. These requisites constitute just cause for terminating an employee based on the union security provision of the CBA.

General Milling Corporation v. Casio, March 10, 2010

Union Security Clause “Union security” is a generic term, which is applied to and

comprehends “closed shop,” “union shop,” “maintenance of membership,” or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. There is union shop when all new regular employees are

required to join the union within a certain period as a condition for their continued employment.

There is maintenance of membership shop when employees, who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated.

A closed shop, on the other hand, may be defined as an enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part.


Union Security Clause The power to dismiss is a normal prerogative of the

employer. However, this is not without limitations. The employer is bound to exercise caution in terminating the services of his employees especially so when it is made upon the request of a labor union pursuant to the Collective Bargaining Agreement. x x x.

While respondent company may validly dismiss the employees expelled by the union for disloyalty under the union security clause of the collective bargaining agreement upon the recommendation by the union, this dismissal should not be done hastily and summarily thereby eroding the employees’ right to due process, self-organization and security of tenure. The enforcement of union security clauses is authorized by law provided such enforcement is not characterized by arbitrariness, and always with due process. Even on the assumption that the federation had valid grounds to expel the union officers, due process requires that these union officers be accorded a separate hearing by respondent company.


Union Security Clause The Union Shop Clause in the CBA simply states

that “new employees” who during the effectivity of the CBA “may be regularly employed” by the Bank must join the union within thirty (30) days from their regularization. There is nothing in the said clause that limits its application to only new employees who possess non-regular status, meaning probationary status, at the start of their employment. Petitioner likewise failed to point to any provision in the CBA expressly excluding from the Union Shop Clause new employees who are “absorbed” as regular employees from the beginning of their employment. What is indubitable from the Union Shop Clause is that upon the effectivity of the CBA, petitioner’s new regular employees (regardless of the manner by which they became employees of BPI) are required to join the Union as a condition of their continued employment.

BPI v. BPI employees Union-Davao, August 10, 2010

Union Security ClauseTheoretically, there is nothing in law

or jurisprudence to prevent an employer and a union from stipulating that existing employees (who already attained regular and permanent status but who are not members of any union) are to be included in the coverage of a union security clause. Even Article 248(e) of the Labor Code only expressly exempts old employees who already have a union from inclusion in a union security clause.

BPI v. BPI employees Union-Davao, August 10, 2010, October 19, 2011

STRIKE Article 212 of the Labor Code, as amended, defines strike

as any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. A labor dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employers and employees.

The term “strike” shall comprise not only concerted work stoppages, but also slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage plant equipment and facilities and similar activities. Thus, the fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation, and not its appearance, will be deemed to be controlling.

Solidbank Corp. v. Gamier, November 15, 2010

STRIKE

“Mass leave” refers to a simultaneous availment of authorized leave benefits by a large number of employees in a company.

If only 5 employees were absent on the same day, and they went on leave for various reasons, they cannot be considered to have gone on “mass leave”. They did not go on strike.

“Concerted” is defined as “mutually contrived or planned” or “performed in unison”

Naranjo v. Biomedica Heath Care, September 19, 2012

STRIKE & PICKETING

To strike is to withhold or to stop work by the concerted action of employees as a result of an industrial or labor dispute. The work stoppage may be accompanied by picketing by the striking employees outside of the company compound. While a strike focuses on stoppage of work, picketing focuses on publicizing the labor dispute and its incidents to inform the public of what is happening in the company struck against. A picket simply means to march to and from the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. It is a strike activity separate and different from the actual stoppage of work.

PHIMCO Industries v. PHIMCO Industries Labor Association, August 11, 2010

STRIKE & PICKETING While the right of employees to publicize their

dispute falls within the protection of freedom of expression and the right to peaceably assemble to air grievances, these rights are by no means absolute. Protected picketing does not extend to blocking ingress to and egress from the company premises. That the picket was moving, was peaceful and was not attended by actual violence may not free it from taints of illegality if the picket effectively blocked entry to and exit from the company premises.


PICKETING As we have stated, while the picket was moving, the movement

was in circles, very close to the gates, with the strikers in a hand-to-shoulder formation without a break in their ranks, thus preventing non-striking workers and vehicles from coming in and getting out. Supported by actual blocking benches and obstructions, what the union demonstrated was a very persuasive and quietly intimidating strategy whose chief aim was to paralyze the operations of the company, not solely by the work stoppage of the participating workers, but by excluding the company officials and non-striking employees from access to and exit from the company premises. No doubt, the strike caused the company operations considerable damage, as the NLRC itself recognized when it ruled out the reinstatement of the dismissed strikers.


STRIKE

Employees’ refusal to work on three consecutive holidays, prompted by their disagreement with the management-imposed new work schedule, was considered a strike that was grounded on a non-strikeable issue, and a violation of the No-Strike Clause in the CBA.

A. Soriano Aviation v. Employees Association of A. Soriano Aviation, August 14, 2009

Placards/Banners may make strike illegal The display of placards and banners imputing

criminal negligence on the part of the employer and its officers, apparently with the end in view of intimidating the employer’s clientele, are, given the nature of its business, that serious as to make the strike illegal. The putting up of those banners and placards, coupled with the name-calling and harassment, indicates that it was resorted to to coerce the resolution of the dispute. That the alleged acts were committed in nine non-consecutive days during the almost eight months that the strike was on-going does not render the violence less pervasive or widespread to be excusable. Art. 264 does not require that violence must be continuous or that it should be for the entire duration of the strike.

A. Soriano Aviation v. Employees Association of A. Soriano Aviation, August 14, 2009

In Pari Delicto rule When management and union are in

pari delicto, the contending parties must be brought back to their respective positions before the controversy, i.e., before the strike.

Automotive Engine Rebuilders v. Progresibong Unyon ng mga Manggagawa sa AER, July 13, 2011

Termination of Strikers Strikers who were not covered by the

charges for illegal strike cannot be among those found guilty of illegal strike. They cannot be considered in pari delicto. They should be reinstated and given their backwages.

Automotive Engine Rebuilders v. Progresibong Unyon ng mga Manggagawa sa AER, January 16, 2013

Termination of Strikers Union members who were illegally dismissed for

mere participation in an illegal strike are entitled to separation pay (in lieu of reinstatement) but not to backwages.

The principle of a "fair day’s wage for a fair day’s labor" remains as the basic factor in determining the award thereof. If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working. For this exception to apply, it is required that the strike be legal.

VCMC v. Yballe, January 15, 2014

LIABILITY OF OFFICERS The effects of illegal strikes, outlined in Article 264

of the Labor Code, make a distinction between participating workers and union officers. The services of an ordinary striking worker cannot be terminated for mere participation in an illegal strike; proof must be adduced showing that he or she committed illegal acts during the strike. The services of a participating union officer, on the other hand, may be terminated, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike.


Employer may dismiss employees for illegal acts during a strike even if there is no petition to declare a strike illegal

The use of unlawful means in the course of a strike renders such strike illegal. The filing of a petition to declare the strike illegal is thus unnecessary. Article 263 provides that an employer may terminate employees found to have committed illegal acts in the course of a strike.

Jackbilt Industries v. Jackbilt Employees Union, March 20, 2009

Illegal Strike

A strike conducted by a union which acquired its legal personality AFTER the filing of its Notice of Strike and the conduct of the Strike Vote is ILLEGAL.

Magdala Multipurpose & Livelihood v. KMLMS, October 19, 2011

Termination Due to Strikes Conformably with the long honored

principle of a fair day’s wage for a fair day’s labor, employees dismissed for joining an illegal strike are not entitled to backwages for the period of the strike even if they are reinstated by virtue of their being merely members of the striking union who did not commit any illegal act during the strike.

Escario v. NLRC, Pinakamasarap Corp., September 27, 2010

Assumption of Jurisdiction Article 263(g) is both an extraordinary and a preemptive power to

address an extraordinary situation – a strike or lockout in an industry indispensable to the national interest. This grant is not limited to the grounds cited in the notice of strike or lockout that may have preceded the strike or lockout; nor is it limited to the incidents of the strike or lockout that in the meanwhile may have taken place.

As the term “assume jurisdiction” connotes, the intent of the law is to give the Labor Secretary full authority to resolve all matters within the dispute that gave rise to or which arose out of the strike or lockout; it includes and extends to all questions and controversies arising from or related to the dispute, including cases over which the labor arbiter has exclusive jurisdiction.

Bagong Pagkakaisa ng Manggagawa sa Triumph v. Secretary, July 5, 2010

Serious Misconduct A series of irregularities when put together

may constitute serious misconduct which is a just cause for dismissal.

An employer’s Code of Discipline which provides that an employee who commits three different acts of misconduct within a twelve-month period commits serious misconduct is valid.

SAMASAH-NUWHRAIN v. VA Magsalin, June 6, 2011

Serious Misconduct Theft committed against a co-employee

(missing cellphone was found in the employee’s locker) is considered as a case analogous to serious misconduct, for which the penalty of dismissal from service may be meted out to the erring employee.

Cosmos Bottling Co. v. Fermin, June 20, 2012

Serious Misconduct Reckless driving by a bus driver

constitutes serious misconduct, or, at the very least, conduct analogous to serious misconduct.

Sampaguita Auto Transport v. NLRC & Sagad, January 30, 2013

Willful Disobedience An employee’s act of lending his I.D. card to

another employee who used the said I.D. in entering the compound of the company is NOT willful disobedience when the employee did not benefit from such act, nor prejudiced the business interests of the employer. The employee acted in good faith and with the sole intention of facilitating deliveries for the employer when he allowed his co-employee to use his company I.D.

Dongon v. Rapid Movers, Augsut 28, 2013

Confidential Employee; Breach of Trust

Loss of confidence should ideally apply to employees holding a position of trust and confidence, and to employees routinely charged with the care and custody of the employer’s money or property.

The position of Programmer is analogous to the second category, i.e., employees having care and custody of money or property.

Prudential Guarantee & Assurance Labor Union v. NLRC, June 13, 2012

Confidential Employee; Breach of Trust A driver assigned with a specific

vehicle, and entrusted with the transportation of the employer’s goods and property, and consequently, with its handling and protection, can be said to beholding a position of responsibility.

His attempt to smuggle out the scrap iron belonging to the company is work-related willful breach of trust.

Lopez v. Altruras Group of Companies, April 11, 2011

Extramarital Affairs

While the employee’s act of engaging in extra-marital affairs may be considered personal to him and does not directly affect the performance of his assigned task as bookkeeper, it can be a ground for dismissal. Aside from the fact that the act was specifically provided for by the employer’s Personnel Policy as one of the grounds for termination of employment (“act that brings discredit to the cooperative”) , said act raised concerns to the employer as its Board received numerous complaints and petitions from the cooperative members themselves asking for the removal of employee because of his immoral conduct.

Alilem Credit Cooperative v. Bandiola, February 25, 2013

Neglect of Duties

Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence implies want of care in the performance of one’s duties. Habitual neglect imparts repeated failure to perform one’s duties for a period of time, depending on the circumstances.

The employee’s four absences spread out over a six-month period, and which was the employee’s only recorded infraction in six years cannot be considered a just cause for dismissal. The termination of employment is unreasonable, especially since the first three absences had already been penalized, and the fourth absence was due to illness.

Cavite Apparel v. Marquez, February 6, 2013

Redundancy Is not enough for a company to merely

declare that it has excess personnel. It must produce adequate proof of such redundancy to justify the dismissal of the affected employees.

Evidence must be presented to substantiate redundancy such as but not limited to the new staffing pattern, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring.

General Milling Corp. v. Viajar, January 30, 2013

Suspension of Operations/Termination

An employment should be deemed terminated, should the suspension of operation go beyond six (6) months, even if the continued suspension is due to a cause beyond the control of the employer.

The decision to suspend operation ultimately lies with the employer, who in its desire to avert possible financial losses, declares suspension of operations.

Article 283 is emphatic that an employee, who was dismissed due to cessation of business operation, is entitled to the separation pay equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. And it is jurisprudential that separation pay should also be paid to employees even if the closure or cessation of operations is not due to losses.

Manila Mining Corporation Employees Association v. manila Mining Corp., September 29, 2010

Suspension of Operations/Termination

Suspension of operations is bona fide when it is due to a fire that caused substantial losses to the employer and damaged its factory.

However, the employees should be considered illegally dismissed after the employer failed to recall them after six months, when its bona fide suspension of operations lapsed.

SKM Art Corp. v. Bauca, November 27, 2013

Intent to Terminate Need Not Be in the 1st Notice

The law does not require that an intention to terminate one’s employment should be included in the first notice. It is enough that employees are properly apprised of the charges brought against them so they can properly prepare their defenses; it is only during the second notice that the intention to terminate one’s employment should be explicitly stated.

Esguerra v. Valle Verde, June 13, 2012

No Need for Hearing or Conference in Termination Process

Art. 227 (b) of the Labor Code provides that, in cases of termination for a just cause, an employee must be given “ample opportunity to be heard and to defend himself.” This right to be heard is satisfied not only by a formal face to face confrontation but by any meaningful opportunity to controvert the charges against him and to submit evidence in support thereof. It does not mean verbal argumentation alone inasmuch as a person may be heard just as effectively through written explanations, submissions or pleadings. “Ample opportunity to be heard” 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.

Perez v. PT&T, April 7, 2009; Esguerra v. Valle Verde, June 13, 2012

When is a formal hearing or conference mandatory?

A formal hearing or conference becomes mandatory only 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.

Perez v. PT&T, April 7, 2009

Termination Due to Strikes Article 277(b), in relation to Article

264(a) and (e) of the Labor Code recognizes the right to due process of all workers, without distinction as to the cause of their termination, even if the cause was their supposed involvement in strike-related violence prohibited under Article 264(a) and (e) of the Labor Code.


Notice of Closure The mere posting on the company bulletin

board or in conspicuous places within the business premises, does not, meet the requirement under the law of "serving a written notice on the workers.“ The purpose of the written notice is to inform the employees of the specific date of termination or closure of business operations, and must be served upon them at least one month before the date of effectivity to give them sufficient time to make the necessary arrangement. In order to meet the foregoing purpose, service of the written notice must be made individually upon each and every employee of the company.

Sangwoo Phil. v. Sangwoo Phils. Employees Union, December 9, 2013

Nominal Damages - Reduction

In instances where the payment of nominal damages becomes impossible, unjust, or too burdensome, modification becomes necessary in order to harmonize the disposition with the prevailing circumstances.

In the determination of the amount of nominal damages which is addressed to the sound discretion of the court, several factors are taken into account: (1) the authorized cause invoked, whether it was a retrenchment or a closure or cessation of operation of the establishment due to serious business losses or financial reverses or otherwise; (2) the number of employees to be awarded; (3) the capacity of the employers to satisfy the awards, taken into account their prevailing financial status as borneby the records; (4) the employer’s grant of other termination benefits in favor of the employees; and (5) whether there was a bona fide attempt to comply with the notice requirements as opposed to giving no notice at all.

Sangwoo Phil. v. Sangwoo Phils. Employees Union, December 9, 2013 (citing Industrial Timber Corporation v. Ababon, 2006)

No Need for Writ of Execution Before Labor Arbiter’s Order of Reinstatement Can Be Made Executory

The reinstatement aspect of the Labor Arbiter’s order is self-executory. The employee need not file a motion for the issuance of the writ of execution. Under the NLRC Rules of Procedure, the employer is required to submit a report of compliance within 10 calendar days from receipt of the Labor Arbiter’s decision. If the employer disobeys the directive or refuses to reinstate the dismissed employee, the Labor Arbiter shall immediately issue a writ of execution, i.e., motu propio. If the employer disobeys the writ, the employer may be cited for contempt.

Garcia v. Philippine Airlines, January 20, 2009

If there is no finding of illegal dismissal and the reinstatement was ordered “as a measure of equitable and compassionate relief,” the employee is not entitled to reinstatement pending appeal.

The provision mandating the immediate execution of the reinstatement order of the Labor Arbiter pending appeal applies only if there is a finding of illegal dismissal. Article 223 gives an interim relief, granted to an employee while the case for illegal dismissal is pending appeal. Where there is no finding of illegal dismissal, such interim relief does not apply.

Lansangan v. Amkor Technology Philippines, January 30, 2009

No Reimbursement of Amount Received Under Payroll Reinstatement Even if the order of reinstatement of the Labor Arbiter is

reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. The Labor Arbiter’s order of reinstatement is immediately executory and the employer has to either re-admit the employee to work under the same terms and condition prevailing prior to the dismissal, or to reinstate the employee in the payroll, and that failing to exercise the options in the alternative, employer must pay the employee’s salaries. If the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. The social justice principles of labor outweigh or render inapplicable the civil law doctrine of unjust enrichment.


If no actual or payroll reinstatement was effected during the period of appeal despite the Labor Arbiter’s reinstatement order, can the employee still collect the wages due him for the period of the supposed reinstatement even after the Labor Arbiter’s decision has already been reversed by the NLRC?

Yes. The reinstatement aspect of the Labor Arbiter’s order is self-executory. The salary automatically accrued from notice of the Labor Arbiter’s order of reinstatement until its ultimate reversal by the NLRC or a higher court. Hence, even after the Labor Arbiter’s order has been reversed, the employee can still collect the wages due for the period of the reinstatement pending appeal. The employee may be barred from collecting the accrued wages, however, if it is shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer.


Two-fold test in determining whether an employee is barred from collecting the accrued wages:

There must be an actual delay, i.e., the order of reinstatement pending appeal was not executed prior to its reversal.

The delay was not due to the employer’s unjustified act or omission.

Islriz Trading v.Capada, January 31, 2011 (citing Garcia v. Philippine Airlines, January 20, 2009)

Reinstatement

A transfer of work assignment without any justification therefor, even if the employee would be presumably doing the same job with the same pay cannot be deemed as faithful compliance with a reinstatement order.

Pfizer v. Velasco, March 9, 2011

Recomputation of Backwages & Separation Pay Recomputation of the amount of backwages and

separation pay due an illegally dismissed employee, after the resolution has attained finality, is a necessary consequence that flows from the nature of the illegality of dismissal.

A recomputation is part of the law that is read into the decision. By the nature of an illegal dismissal case, the reliefs continue to add up until full satisfaction.

The recomputation does not amount to an alteration or amendment of the final decision being implemented.

Nacar v. Gallery Frames, August 13, 2013

Backwages The computation of backwages of a probationary employee

should not cover the entire period from the time her compensation was withheld up to the time of her actual reinstatement. The computation of backwages shall end upon the end of the probationary employment.

The lapse of the probationary employment without any appointment as a regular employee of the employer effectively severed the employer-employee relationship between the parties.

NOTE: In this case, the SC said that the employer cannot be expected to retain the employee as a regular employee after she lost P20,000 while acting as cashier.

Robinsons Galleria/Robinsons Supermarket Corp. v. Ranchez, January 19, 2011.

Financial Assistance

Even if there is a finding that the employee indeed resigned and was not dismissed, the employee may still be granted financial assistance on equity considerations.

Luna v. Allado Construction, May 30, 2011; Villaruel v. Yeo Han Guan, June 1, 2011

Separation Pay/Financial Assistance In addition to serious misconduct, in dismissals based on

other grounds under Art. 282 like willful disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, and commission of a crime against the employer or his family, separation pay should not be conceded to the dismissed employee.

In analogous causes for termination like inefficiency, drug use, and others, the NLRC or the courts may opt to grant separation pay anchored on social justice in consideration of the length of service of the employee, the amount involved, whether the act is the first offense, the performance of the employee and the like.

International School v. ISAE, February 5, 2014

Reinstatement without Backwages An employee’s act of lending his I.D. card to a

relative who was an applicant at the employer company (to allow the relative to have free pass for the shuttle bus) was considered as insufficient ground for termination, despite the guilt of the employee.

Reinstatement WITHOUT backwages was ordered, because: (1) dismissal of the employee was too harsh a penalty; (2) the employer was in good faith in terminating the employee.

Integrated Microelectronics v. Pionilla, August 28, 2013

Dismissal – Criminal case

The employer may validly dismiss for loss of trust and confidence an employee who commits an act of fraud prejudicial to the interest of the employer.

Neither a criminal prosecution nor a convicton beyond reasonable doubt for the crime is a requisite for the validity of the dismissal.

The dismissal for a just cause must still be made upon compliance with the requirements of due process, otherwise, the employer is liable to pay nominal damages.

Concepcion vs. Minex Import Corp., January 24, 2012

Dismissal – Criminal case A first notice which stated that the employment

contract had expired but likewise made general references to alleged criminal suits filed against the employee is non-compliant with the twin-notice requirement.

An employee’s guilt or innocence in a criminal case is not determinative of the existence of a just or authorized cause for the employee’s dismissal. The pendency of a criminal suit against an employee does not, by itself, sufficiently establish a ground for an employer to terminate the employee’s servcies.

United Tourist Promotion v. Kemplin, February 5, 2014

Suspension for Failure to Remit Boundary The employer’s policy of suspending drivers

who fail to remit the full amount of the boundary was fair and reasonable under the circumstances.

An employer has free rein and enjoys a wide latitude of discretion to regulate all aspects of employment, including the prerogative to instill discipline on the employees.

Since the case involved a suspension, not a termination, the strict application of the twin-notice rule is not warranted.

Caong v. Regualos, January 26, 2011.

Constructive Dismissal Constructive Dismissal occurs when there is

cessation of work because continued employment is rendered impossible, unreasonable, or unlikely as when there is a demotion in rank or diminution in pay or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee, leaving the latter with no other option but to quit.

If there is no quitting (as when the employee had returned to work), there can be no constructive dismissal.

The University of the Immaculate Conception v. NLRC, January 26, 2011.

Constructive Dismissal The employer’s non-payment of the

employee’s salaries for three months constituted constructive dismissal, even if it was the employee who resigned, since the employee clearly cited in the resignation letter the non-payment of salaries as the reason for the resignation.

Dreamland Hotel v. Johnson, March 12, 2014

Constructive Dismissal There is constructive dismissal when the employer pre-

judged the employee’s guilt without proper investigation, and instantly reported her to the police as the suspected thief, after the employee herself (a cashier) reported the loss of money. (The employee languished in jail for two weeks.)

The due process requirements under the Labor Code are mandatory and may not be supplanted by police investigation or court proceedings. The criminal aspect of the case is considered independent of the administrative aspect. Employers should not rely solely on the findings of the Prosecutor’s Office. They are mandated to conduct their own separate investigation, and to accord the employee every opportunity to defend himself/herself.

Robinsons Galleria/Robinsons Supermarket Corp. v. Ranchez, January 19, 2011.

Floating Status

“Off-detailing” or “Floating status” is not dismissal unless it lasts for more than six months.

A complaint for illegal dismissal filed prior to the lapse of the six-month period and/or the actual dismissal of the employee is generally considered premature.

Nippon Housing v. Leynes, August 3, 2011

Disease

Separation pay under Article 284 presupposes that it is the employer who terminates the services of the employee found to be suffering from disease. It does not apply to a situation where it is the employee who severe his or her employment ties.

Villaruel v. Yeo Han Guan, June 1, 2011 Padillo v. Rural bank of Nabunturan,

January 21, 2013

Retirement Retirement is the result of a bilateral act of the

parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age, agrees to sever his or her employment with the former.

A retirement plan giving the employer the option to retire its employees below the ages provided by law must be assented to and accepted by the latter, otherwise, its adhesive imposition will amount to a deprivation of property without due process of law.

Cercado v. Uniprom, October 13, 2010

Secondment The continuity, existence or termination of an

employer-employee relationship in a typical secondment contract is measured by the FOUR FOLD TEST.

If the acceptance of the new “assignment” required the abandonment of the employee’s permanent position with the former employer, in order for him to assume a position in an entirely different company, the “permanent transfer or assignment” constituted a severance of employment with the former employer.

Intel Technology v. NLRC & Cabiles, February 5, 2014

Control The main issue of whether an agency or an

employment relationship exists depends on the incidents of the relationship. The Labor Code concept of “control” has to be compared and distinguished with the “control” that must necessarily exist in a principal-agent relationship. The principal cannot but also have his or her say in directing the course of the principal-agent relationship, especially in cases where the company-representative relationship in the insurance industry is an agency.

Tongko v. Manufacturers Life Insurance (GR 167622, June 29, 2010 & January 25, 2011)

Control Guidelines indicative of labor law

“control,”, should not merely relate to the mutually desirable result intended by the contractual relationship; they must have the nature of dictating the means or methods to be employed in attaining the result, or of fixing the methodology and of binding or restricting the party hired to the use of these means.

Tongko v. Manufacturers Life Insurance (GR 167622, June 29, 2010 & January 25, 2011)

Officer vs. Employee Conformably with Section 25, a position must be expressly

mentioned in the By-Laws in order to be considered as a corporate office. Thus, the creation of an office pursuant to or under a By-Law enabling provision is not enough to make a position a corporate office.

The criteria for distinguishing between corporate officers who may be ousted from office at will, on one hand, and ordinary corporate employees who may only be terminated for just cause, on the other hand, do not depend on the nature of the services performed, but on the manner of creation of the office.

Matling Industrial v. Coros, October 13, 2010

Officer vs. Employee

The contents of the General Information Sheets, which identifies the employee as an “officer” of the company could neither govern nor establish the nature of the office held by the employee and his appointment thereto.

The mere fact that the complainant employee was a stockholder of the company does not necessarily make the action an intra-corporate cotroversy.

Cosare v. Broadcom Asia, February 5, 2014

Two-Tier Test: Officer vs. Employee The fact that the parties involved in the

controversy are all stockholders or that the parties involved are the stockholders and the corporation does not necessarily place the dispute within the ambit of the jurisdiction of the RTC.

Two-tier Test: (1) the status or relationship of the parties; (2) the nature of the question that is the subject of the controversy.

If the worker was not appointed by the Board of Directors, there is no intra-corporate relationship. If what is involved is termination of employment, it is a labor controversy, and not an intra-corporate dispute.

Real v. Sangu Phils., January 19, 2011

PBA Referees NOT Employees

The contractual stipulations do not pertain to, much less dictate, how and when the referees will blow the whistle and make calls.

They merely serve as rules of conduct or guidelines in order to maintain the integrity of the professional basketball league.

Bernante v. PBA, September 14, 2011

Talents

Production assistants, drivers/cameramen, security guards, are NOT “talents”

They are employees

Fulache v. ABS-CBN, January 21, 2010; Television and Production Exponents v. Servaña, January 28, 2008; ABS-CBN Broadcasting Corp. v. Nazareno, Sept. 26, 2006

Job Contracting A person is considered engaged in legitimate job contracting

or subcontracting if the following conditions concur: (a) The contractor carries on a distinct and independent

business and undertakes the contract work on his account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of his work except as to the results thereof;

(b) The contractor has substantial capital or investment; and (c) The agreement between the principal and the contractor

or subcontractor assures the contractual employees' entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social welfare benefits.

Babas v. Lorenzo Shipping, December 15, 2010 (citing Vinoya)

Job Contracting A contractor’s Certificate of Registration is

not sufficient proof that it is an independent contractor. A Certificate of Registration issued by the Department of Labor and Employment is not conclusive evidence of such status.

The fact of registration simply prevents the legal presumption of being a mere labor-only contractor from arising.

Babas v. Lorenzo Shipping, December 15, 2010 (citing San Miguel Corporation v. Vicente B. Semillano, Nelson Mondejas, Jovito Remada, Alilgilan Multi-Purpose Coop (AMPCO), and Merlyn N. Policarpio)

Possession by contractor of substantial capital NOT ENOUGH

Mere compliance with substantial capital requirement will not suffice for a contractor to be considered a legitimate contractor. If the workers supplied by the contractor work alongside the principal’s regular employees who are performing identical work, such is an indicium of labor-only contracting.

It is the totality of the facts and the surrounding circumstances of the case which is determinative of the parties’ relationship. Several factors may be considered, such as, whether the contractor was 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 specified pieces of work; the control and supervision of the workers the power of the employer with respect to the hiring, firing and payment of the workers of the contractor; the control of the premises; the duty to supply premises, tools, appliances, materials and labor; and the mode, manner and terms of payment.

Coca-Cola Bottlers v. Agito, February 13, 2009

Solidary Liability of Principal and Labor-Only Contractor

A labor-only contractor is solidarily liable with its principal. Article 106 provides that in cases of labor-only contracting, the intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.

Since the contractor is solidarily liable with its principal, the releases, waivers and quitclaims executed by the employees in favor of the contractor already expunged the liability of the principal.

Vigilla v. Philippine College of Criminology, June 10, 2013

Probationary & Fixed-Term Contracts for Teachers

In a situation where the probationary status overlaps with a fixed-term contract not specifically used for the fixed term it offers, Article 281 should assume primacy and the fixed-period character of the contract must give way.

The fixed-term character of employment essentially refers to the period agreed upon between the employer and the employee; employment exists only for the duration of the term and ends on its own when the term expires. In a sense, employment on probationary status also refers to a period because of the technical meaning “probation” carries in Philippine labor law – a maximum period of six months, or in the academe, a period of three years for those engaged in teaching jobs. Their similarity ends there, however, because of the overriding meaning that being “on probation” connotes, i.e., a process of testing and observing the character or abilities of a person who is new to a role or job.

Mercado v. AMA Computer College, April 13, 2010; Colegio del Santisimo Rosario v. Rojo, September 4, 2013

Probationary Employees Mere completion of the three-year probation, even with an

above-average performance, does not guarantee that the teacher will automatically acquire a permanent employment status. The probationer can only qualify upon fulfillment of the reasonable standards set for permanent employment as a member of the teaching personnel.

The requirement of a master’s degree for ataining permanent full time faculty member status is a reasonable qualification.

A school CBA must be read in conjunction with statutory and administrative regulations governing faculty qualifications.

University of the East v. Pepanio, January 23, 2013 Herrera-Manaois v. St. Scholastica’s College, December 11, 2013

Termination of Employment of probationary employees Section 2, Rule I, Book VI: If the

termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee, within a reasonable time from the effective date of termination.

Tamson’s Enterprises v. CA, November 16, 2011; Abbot Laboratories vs. Alcaraz, July 23, 2013

Termination of Employment of probationary employees

The adequate performance of one’s duties is, by and of itself an inherent and implied standard for a probationary employee to be regularized; such is a regularization standard which need not be spelled out or mapped into technical indicators in every case.

Abbot Laboratories vs. Alcaraz, July 23, 2013

Termination of Employment of probationary employees

The employer’s violation of its own company procedure for termination renders the termination procedurally infirm, warranting the payment of nominal damages.

Abbot Laboratories vs. Alcaraz, July 23, 2013

Project Employment “Project” could refer to one or the other of at least two

(2) distinguishable types of activities. Firstly, a project could refer to a particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times.

The term “project” could also refer to, secondly, a particular job or undertaking that is not within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined or determinable times.

Leyte Geothermal Power Progressive Employees Union v. PNOC, March 30, 2011

Project Employment The principal test used to determine whether

employees are project employees is whether or not the employees were assigned to carry out a specific project or undertaking, the duration or scope of which was specified at the time the employees were engaged for that project.

When the employee’s Project Employment Contract allowed an extension of the three-month duration but there was no subsequent contract or appointment that specified a particular duration for the extension, and the services were just extended indefinitely until termination, the employee should be considered regular. While for the first three months, the employee can be considered a project employee, his employment thereafter, made him a regular employee.

Asos v. PNCC, July 3, 2013

Project Employment Where the only stipulations in the contracts were the

dates of their effectivity, the duties and responsibilities of the employees, the rights and obligations of the parties, and the employees’ compensation and allowances, there is no actual project. As there was no specific project or undertaking to speak of, the company cannot invoke the exception in Article 280 of the Labor Code.

Granting that they were project employees, the employees could only be considered as regular employees as the two factors enumerated in Maraguinot, Jr., are present. It is undisputed that the petitioners were continuously rehired by the same employer for the same position. Hence, their work was vital, necessary and indispensable to the usual business or trade of the employer.

Malicdem v. Marulas Industrial Corp., February 26, 2014

Project Employment

If there is continuous rehiring for the same tasks or nature of tasks under different projects, which tasks are vital, necessary and indispensable to the usual business or trade of the employer, an employee who was initially hired as a project employee may eventually acquire regular status.

Exodus International Construction v. Biscocho, February 23, 2011

Project Employment The second paragraph of Art. 280 demarcates as

“casual” employees, all other employees who do not fall under the definition of the preceding paragraph. The proviso, in said second paragraph, deems as regular employees those “casual” employees who have rendered at least one year of service regardless of the fact that such service may be continuous or broken.

The proviso is applicable only to the employees who are deemed “casuals” but not to the “project” employees nor the regular employees treated in paragraph one of Art. 280.

Leyte Geothermal Power Progressive Employees Union v. PNOC, March 30, 2011

Termination of Project Employees Completion of the work or project automatically

terminates the employment. Prior or advance notice of termination is not part of

procedural due process if the termination is brought about by the completion of the contract or phase thereof for which the employee was engaged.

There is no violation of any requirement of procedural due process by failing to give the project employees advance notice of their termination; thus, there is no basis for the payment of nominal damages (Agabon).

DM Consunji v. Gobres, August 8, 2010

Seasonal Employment Seasonal employees may be considered as regular

employees. Regular seasonal employees are those called to work from time to time. The nature of their relationship with the employer is such that during the off season, they are temporarily laid off; but reemployed during the summer season or when their services may be needed. They are in regular employment because of the nature of their job, and not because of the length of time they have worked.

The rule, however, is not absolute. Seasonal workers who have worked for one season only may not be considered regular employees. Similarly, when seasonal employees are free to contract their services with other farm owners, then the former are not regular employees.

Gapayao v. Fulo, June 13, 2013

Regular Seasonal Employees

The regular and repeated hiring of the same workers (two different sets) for two separate seasons has put in place, principally through jurisprudence, the system of regular seasonal employment in the sugar industry and other industries with a similar nature of operations.

However, regular seasonal employees should not be confused with the regular employees of the sugar mill such as the administrative or office personnel who perform their tasks for the entire year regardless of the season.

The regular seasonal employees should not be entitled to the benefits granted, under the CBA, to the sugar mill’s regular employees.

Universal Robina Sugar Milling Corp. v. Acibo, January 15, 2014

Foreign “Employee” An foreigner who alleged illegal dismissal

and sought to claim under our labor laws is required to establish first that he was qualified and duly authorized to obtain employment within our jurisdiction. A requirement for foreigners who intend to work within the country is an employment permit.

The failure of the foreigner to obtain an employment permit, by itself, necessitates the dismissal of his labor complaint.

McBurnie v. Ganzon, EGI-Managers, Inc., October 17, 2013

Appeal Bond The filing of a motion to reduce appeal bond shall be

entertained by the NLRC subject to the following grounds: (1) There is a meritorious ground; and (2) a bond in a reasonable amount is posted.

For item 2, 10% should be posted together with the motion to reduce (exclusive of damages and attorney’s fees)

Compliance with the 10% requirement will suspend the running of the 10 day period for appeal

The NLRC retains its authority and duty to resolve the motion and determine the final amount of bond

If the NLRC denies the motion, or requires a higher amount of bond, the appellant shall have a fresh period of 10 days from notice of the order.

McBurnie v. Ganzon, EGI-Managers, Inc., October 17, 2013

NLRC Decision – Finality

The finality of the NLRC’s decision does not preclude the filing of a petition for certiorari under Rule 65 of the Rules of Court. That the NLRC issues an entry of judgment after the lapse of ten (10) days from the parties’ receipt of its decision will only give rise to the prevailing party’s right to move for the execution thereof but will not prevent the CA from taking cognizance of a petition for certiorari on jurisdictional and due process considerations.

Since an appeal to this Court is not an original and independent action but a continuation of the proceedings before the CA, the filing of a petition for review under Rule 45 cannot be barred by the finality of the NLRC’s decision in the same way as a petition for certiorari under Rule 65.

Sarona v. NLRC, January 18, 2012.

Appeal Even if the petitioner workers did not specifically

question the award of separation pay, and did not ask for reinstatement, the court can grant reinstatement as a remedy for the illegal dismissal.

A court can grant the relief warranted by the allegation and the proof even if it is not specifically sought by the injured party. The inclusion of a general prayer may justify the grant of a remedy different from or together with the specific remedy sought, if the facts alleged in the complaint and the evidence introduced so warrant.

Prince Transport v. Garcia, January 12, 2011.

Appeal A party who does not appeal, or file a petition for

certiorari, is not entitled to any affirmative relief. Due process prevents the grant of additional awards to parties who did not appeal. An appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment, but he cannot seek modification or reversal of the judgment or claim affirmative relief unless he has also appealed.

The CA cannot grant an affirmative relief to an employee who did not ask for it.

Unilever v. Rivera, June 3, 2013.

Secretary of Labor has NO jurisdiction to determine the existence of employer-employee relationship in the exercise of the visitorial & enforcement powers.

Article 128’s grant of visitorial and enforcement powers is for the purpose of determining violations of, and enforcing, the Labor Code and any labor law, wage order, or rules and regulations. If there is no employer-employee relationship in the first place, the duty of the employer to adhere to labor standards with respect to the non-employees is questionable.

The Secretary’s power under Art. 128 does not apply in two instances: (a) where the employer-employee relationship has ceased; and (b) where no such relationship has ever existed. If there is a prima facie showing of the absence of employer-employee relationship, the Secretary is precluded from exercising the visitorial and enforcement powers.

People’s Broadcasting v. Secretary, May 8, 2009

Labor Arbiter & Voluntary Arbitrator Under Art. 217, it is clear that a labor arbiter has

original and exclusive jurisdiction over termination disputes. On the other hand, under Article 261, a voluntary arbitrator has original and exclusive jurisdictionover grievances arising from the interpretation or enforcement of company policies.

As a general rule then, termination disputes should be brought before a labor arbiter, except when the parties, under Art. 262, unmistakably express that they agree to submit the same to voluntary arbitration.

Negros Metal v. Lamayo, August 25, 2010

VA decision subject to MR The VA’s decision may still be reconsidered

on the basis of a motion for reconsideration seasonably filed within 10 days from receipt thereof. The seasonable filing of a motion for reconsideration is a mandatory requirement to forestall the finality of such decision.

The absence of a categorical language in Article 262-A does not preclude the filing of a motion for reconsideration of the VA’s decision within the 10-day period.

Albert Teng Fish Trading v. Pahagac, November 17, 2010

VA Jurisdiction The voluntary arbitrator had plenary jurisdiction and authority

to interpret the agreement to arbitrate and to determine the scope of his own authority – subject only, in a proper case, to the certiorari jurisdiction of this Court.

The failure of the parties to specifically limit the issues to that which was stated allowed the arbitrator to assume jurisdiction over the related issue.

While voluntary arbitrators are generally expected to decide only those questions expressly delineated by the submission agreement; nevertheless, they can assume that they have the necessary power to make a final settlement on the related issues, since arbitration is the final resort for the adjudication of disputes.

Manila Pavillion v. Delada, January 25, 2012

VA Jurisdiction and Employer’s Disciplinary Powers

An employee cannot hide under the legal cloak of the grievance machinery of the CBA or the voluntary arbitration proceedings to disobey a valid order of transfer from the management of the hotel. While it is true that the employer’s transfer of assignment is the subject of the grievance machinery in accordance with the provisions of their CBA, the employee is expected to comply first with the said lawful directive while awaiting the results of the decision in the grievance proceedings.

Unless the order of the employer is rendered invalid, there is a presumption of the validity of that order. The employer had the authority to continue with the administrative proceedings for insubordination and willful disobedience against the employer and to impose the penalty of suspension despite the case before the grievance machinery and the panel of voluntary arbitrators.

Manila Pavillion v. Delada, January 25, 2012

Release, Waiver & Quitclaim

As a rule, deeds of release and quitclaim cannot bar employees from demanding benefits to which they are legally entitled or from contesting the legality of their dismissal. The acceptance of those benefits would not amount to estoppel. To excuse employees from complying with the terms of their waivers, they must prove any of three grounds: (1) the employer used fraud or deceit in obtaining the waivers; (2) the consideration the employer paid is incredible and unreasonable; or (3) the terms of the waiver are contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with a right recognized by law.

As the ground for termination of employment was illegal, the quitclaims are deemed illegal as the employees’ consent had been vitiated by mistake or fraud. The circumstances show that petitioner’s misrepresentation led its employees to believe that the company was suffering losses which necessitated the implementation of the voluntary retirement and retrenchment programs, and eventually the execution of the deeds of release, waiver and quitclaim.

Phil. Carpet Manufacturing Corp. v. Tagyamon, December 11, 2013

OFWs entitled to salary for UNEXPIRED PORTION of contract An OFW dismissed from overseas

employment without just, valid or authorized cause as defined by law or contract, is entitled to:

Full reimbursement of the placement fee with interest at 12% per annum

His salary for the UNEXPIRED PORTION of his employment contract

NOTE: The 3-month limit in the law is INVALID

Serrano vs. Gallant Doctrine (2009)

Operative Fact The doctrine is applicable when a

declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law.

It does not apply to a situation where the declaration of unconstitutionality of Sec. 10. R.A. 8042 happened while the illegal dismissal case was pending before the Supreme Court.

Yap v. Thenamaris Ship’s Management, May 30, 2011

3-Month Limitationin RA 8042

The declaration in March 2009 of the unconstitutionality of the clause “or for three months for every year of the unexpired term, whichever is less” in RA 8042 shall be given retroactive effect to the termination that occurred in January 1999 because an unconstitutional clause in the law confers no rights, imposes no duties and affords no protection. The unconstitutional provision is inoperative, as if it was not passed into law at all.

Skippers United v. Doza, February 8, 2012

Money claims of seafarers

Article 291 is the law governing the prescription of money claims of seafarers, a class of overseas contract workers. This law prevails over Section 28 of the Standard Employment Contract for Seafarers which provides for claims to be brought only within one year from the date of the seafarer’s return to the point of hire.

Section 28 of the Standard Employment Contract for Seafarers, insofar as it limits the prescriptive period within which the seafarers may file their money claims, is null and void. The applicable provision is Article 291 of the Labor Code, it being more favorable to the seafarers and more in accord with the State’s declared policy to afford full protection to labor.

The prescriptive period in the present case is thus three years from the time the cause of action accrues.

Southeastern Shipping v. Navarra, June 22, 2010

Commencement of Relationship

The commencement of the employment relationship must be treated separately from the perfection of an employment contract.

The perfection of the contract, which (as a general rule) coincides with the date of execution, occurred when the parties agreed on the object and the cause, and the terms and conditions. Despite the non-deployment (which caused the non-commencement of the employment relationship), rights have arisen based on the perfected conract.

C.F. Sharp v. Pioneer Insurance, February 15, 2012, citing Santiago v. C.F. Sharp, July 10, 2007

Non-Deployment Without Just Cause Section 10 of Republic Act No. 8042 (Migrant Workers

Act) which provides for money claims by reason of a contract involving Filipino workers for overseas deployment applies to a case of non deployment without valid reasons – claims arising out of an 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.

Following the law, the claim is still cognizable by the labor arbiters of the NLRC.

Stolt-Nielsen v. Medequillo, January 18, 2011

CBA of OFWs

Disputes involving the interpretation or implementation of CBA provisions applicable to seafarers should be covered by Art. 261 and 262 of the Labor Code, not by Section 10 of R.A. 8042.

Voluntary Arbitrator has jurisdiction.

Estate of Nelso Dulay v. Aboitiz Jebsen Maritime, June 13, 2012

Withholding of Wages Management prerogative refers “to the right of

an employer to regulate all aspects of employment, such as the freedom to prescribe work assignments, working methods, processes to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of work.” Although management prerogative refers to “the right to regulate all aspects of employment,” it cannot be understood to include the right to temporarily withhold salary/wages without the consent of the employee. To sanction such an interpretation would be contrary to Article 116 of the Labor Code.

SHS Perforated Materials v. Diaz, October 13, 2010

Writ of Habeas Data

The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty and security against abuse in this age of information technology.

The writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution.

Manila Electric Company v. Gopez Lim, October 5, 2010

Apprenticeship The fact that the workers were already rendering service

to the company when they were made to undergo apprenticeship renders the apprenticeship agreements irrelevant as far as the employees are concerned, especially since, prior to the apprenticeship, the employees performed tasks that were usually necessary and desirable to the company’s usual business.

Even assuming there was a valid apprenticeship, the expiration of the first agreement and the retention of the employees was a recognition by the employer of their training and acquisition of a regular employee status.

The second apprenticeship agreement for a second skill which was not even mentioned in the agreement is a violation of the Labor Code’s implementing rules.

Atlanta Industries v. Sebolino, January 26, 2011.

UPDATES Labor Jurisprudence Atty. Marlon J. Manuel.

Documents

Transcript of UPDATES Labor Jurisprudence Atty. Marlon J. Manuel.