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05-31-2019, 01:59 PM

2018 GOLDEN BEACON    LABOR LAW

By: Dean   MANUEL   R.   BUSTAMANTE

1.   SEXUAL   HARASSMENT   LAW    (RA 7877)

To commit sexual harassment, the following elements must be present:

1). the employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach trainer, or any other persons has authority, influence or moral ascendancy over another;

2). the authority, influence or moral ascendancy exists in a working environment:

3). he should have demanded, requested or otherwise required a sexual favor from his employee.

Q: Can greeting by kissing on the cheek, in a beso-beso fashion, be considered as sexual harassment?

A: A mere casual buss on the cheek is not a sexual harassment conduct or favor and does not fall within the purview of the sexual harassment under the Anti-Sexual Harassment Act, otherwise known as RA 7877. (Atty. Susan Aquino vs. Hon. Ernesto Acosta, A.M. No. CTA-01-1, April 2, 2002).

2. EMPLOYER - EMPLOYEE RELATIONSHIP

Four-fold Test

The control test is the most crucial indication of the existence of an employer-employee relationship (The Manila Hotel Corp. vs. NLRC, 343 SCRA 1, 2000). In determining whether a given set of circumstances constitute or exhibit an employer-employee relationship, the accepted rule is that the elements or circumstances relating to the following matters shall be examined and considered:

a. the selection and engagement of the employees

b. the payment of wage

c. the power of dismissal; and

d. the power of control the employees’ conduct

and determinative indicator of the presence or absence of an employer-employee relationship. (Great Pacific Life Assurance Corp. vs. NLRC, 187 SCRA 694, 1990).

The relationship between jeepney owners/operators on one hand and jeepney drivers on the other under the boundary system is that of employer-employee and not of lessor-lessee. (Jardin vs. NLRC, 326 SCRA 299, 2000). By analogy, the doctrine also applies to the relationship between bus owner/operator and bus conductor, auto-calesa owner/operator and driver, taxi owners/operators and taxi drivers.

There is no employer-employee relationship between a resident physician and the training hospital (UERMMC Resident Doctors Union vs. Undersecretary of Labor, G.R. No. 125425-26, November 24, 1993).

Cases where employer-employee relationship exists (Control Test used):

a. Jeepney drivers on boundary system (NLM vs. Dinglasan, 98 Phil. 649)

b. Drivers or helpers of salesmen are employees of the Company (Alhambra Industries vs. CIR, 355 SCRA 553, 1999)

c. Handicraft workers on “pakyaw” system (Dy Keh Beng vs. International Labor, 90 SCRA 161, 1979)

d, Tailors, pressers and stitchers in COD tailoring department (Rosario Bros. vs. Ople, 131 SCRA 72, 1984)

Cases where there is no employer-employee relationship (but one of independent contractor)

a. Insurance company vis-à-vis commission agents (Insular Life vs. NLRC, 179 SCRA 459, 1989)

b. Company vs. collecting agents on commission basis (Singer Sewing Machine vs. Drilon, 193 SCRA 270, 1991).

c. Softdrinks company vs. independent contractors selling softdrinks (Mafinco vs. Ople, 70 SCRA 139, 1976)

d. Shoe shine boys (Besa vs. Trajano, 146 SCRA 501, 1986)

DIFFERENCE BETWEEN AN EMPLOYEE AND INDEPENDENT CONTRACTOR

Of the four elements of the employer-employee relationship, the “control test” is the most important. Compared to an employee, an independent contractor is one who carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof. Hence, while an independent contractor enjoys independence and freedom from the control and supervision of his principal, an employee is subject to the employer’s power to control the means and methods by which the employee’s work is to be performed and accomplished.

ALEXANDER LOPEZ vs. MWSS
G.R. No. 154472, June 30, 2005

The control test merely calls for the existence of the right to control, and not the exercise thereof. It is not essential for the employer to actually supervise the performance of duties of the employee, it is not enough that the former has a right to wield the power. While petitioners were contract-collectors and were even subject to disciplinary measures. Contrary to MWSS’ assertion that petitioners were free to adopt their own method/strategy in the matter of collection, the Agreement clearly provided that the procedure and/or manner of the collection of bills to be followed shall be in accordance with the provisions of the Manual of Procedures.

ABIDING WITH EMPLOYER’S STANDARD

ALLAN BAZAR vs. CARLOS A. RUIZOL
G.R. No. 198782, October 19, 2016, 806 SCRA 496

FACTS: Respondent Carlos Ruizol was a mechanic at Norkis Distributors, Inc. (NDI) and was assigned at the Surigao City Branch.

He filed a complaint for illegal dismissal against petitioner Allan Bazar. He claimed that Bazar came from Tandag branch before he was assigned as a new manager in the Surigao City branch and that he was dismissed by Bazar because the latter wanted to appoint his protégé as a mechanic.

Bazar countered that Ruizol is not an employee but a franchise mechanic of NDI pursuant to a retainership agreement. He averred that Ruizol, being the owner of a motor repair shop, performed repair warranty service, back repair of Yamaha units, and ordinary repair of his own shop and that NDI did not exercise control over respondent Ruizol because he is free to use his own means and methods by which his work is to be accomplished.

Respondent Ruizol asserted that he had to abide by the standard set by NDI in conducting repair work on Yamaha motorbikes done in NDI’s service shop.

ISSUE

Whether abiding by the employer’s standard justify the control test.

RULING

YES, it justifies the control test.

The four-fold test used in determining the existence of employer-employee relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished.

The control test is the most crucial and determinates indicator of the presence or absence of an employer-employee relationship. Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching the end.

Petitioner Bazar asserts that NDI did not exercise the power of control test over respondent Ruizol because he is free to use his own means and method by which his work is to be accomplished.

The records show the contrary. It was shown that respondent Ruizol had to abide by the standards set by NDI in conducting repair work on Yamaha motorbikes done in NDI’s service shop. As a matter of fact, on allegations that respondent failed to live up to the demands of the work, he was sent several memoranda by NDI.

PAKYAW WORKERS ARE REGULAR EMPLOYEES

A. NATE CASKET MAKER et. al. vs. ELIAS V. ARANGO et. al.
G.R. No. 192282, October 5, 2016, 805 SCRA 169

FACTS: Petitioners Spouses Nate are the owners/proprietors of A. Nate Casket Maker. They employed respondents as carpenters, mascilladors and painters in their casket making business from 1998 until their alleged termination in March 2007.

Respondents claimed that they worked from Monday to Saturday, from 7:00 a.m. to 10:00 p.m. with no overtime pay and any monetary benefits.

Sometimes on March 15, 2007, petitioners proposed a “Contract of Employment” but the respondents were adamant and eventually refused to sign said contract as it is unfavorable to them. Later, petitioners told respondents to go home because their employment has been terminated.

Petitioners claimed that respondents are pakyaw workers who are paid per job order. They are “stay-in” workers with free board and lodging.

ISSUE

Whether pakyaw workers are considered regular employees even when their mode of compensation is on a per-piece basis.

RULING

YES, pakyaw workers are considered regular employees for as long as their employers exercise power of control over them.

There is no dispute that the tasks performed by respondents as carpenters, painters and mascilladors were necessary and desirable in the usual business of the petitioners who are engaged in the manufacture and selling of caskets.

The power of control by petitioners over respondents is clearly present in this case. Respondents follow the steps in making a casket, as instructed by the petitioners, like carpentry, mascilla, rubbing and painting. They had their own notebooks where they listed the work completed with their signatures and the date completed. The same could be checked by petitioners as basis for the compensation for the day.

It should be remembered that the control test merely calls for the existence of the right to control, and not necessarily the exercise thereof. It is not essential that the employers actually supervises the performance of duties by the employees. It is enough that the former has a right to wield the power.

Hence, pakyaw workers are considered regular employees for as long as their employers exercise control over them. Thus, while respondents’ mode of compensation was on a per-piece basis, the status and nature of their employment was that of regular employees. As regular employees, respondents were entitled to security of tenure and could be dismissed only for just or authorized causes and after the observance of due process.

3. KINDS OF EMPLOYMENT

Test in determining regular employment; reasonable connection rule

The primary standard of determining a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. (De Leon vs. NLRC, 176 SCRA 615, 1989).

Repeated rehiring and the continuing need for the employee’s services are sufficient evidence of the necessity and indispensability of his services to the employer’s business or trade. (Baguio Country Club Corporation vs. NLRC, 206 SCRA 643, 1992)

PROBATIONARY EMPLOYMENT

Probationary period of employment; general rule and exception

Generally, the probationary period of employment is limited to six months. The exception to this general rule is when the parties to an employment contract may agree otherwise, such as when the same is established by company policy or when the same is required by the nature of work to be performed by the employee. In the latter case, there is recognition of the exercise of managerial prerogatives in requiring a longer period of probationary employment, especially where the employee must learn a particular kind of work such as selling, or when the job requires qualifications, skills, experience or training. (Busier vs. Leogardo, 131 SCRA 151, 1984).

In all cases involving employees on probationary status, the employer shall make known to the employee at the time he is hired, the standards by which he will qualify as a regular employee. (A. M. Oreta & Co. vs. NLRC, 176 SCRA 218, 1989).

During the probationary period, the employee enjoys security of tenure

Jurisprudence is rich in cases guaranteeing the security of tenure, limited thought it may be, of probationary employees. Except for just cause as provided by law or under the employment contract, a probationary employee cannot be terminated. A probationary employee may be terminated on two grounds: (a) for just cause; or (b) when he fails to qualify as regular employee in accordance with reasonable standards made known by the employer at the time of his engagement. (Biboso vs. Victorias Milling, 76 SCRA 250, 1977).

UNIVAC DEVELOPMENT, INC. vs. WILLIAM M. SORIANO
G.R. No. 182072, June 19, 2013, 699 SCRA 88

FACTS: Soriano was hired as legal assistant by Univac on probationary basis. Eight (8) day prior to the completion of his six months probationary period, the employer’s department head informed him that he was being terminated from employment due to the company’s cost cutting expenses.

On the other hand, Univac claimed that during the company’s meeting, Soriano expressed his intention to leave the company because he wanted to review for the bar examinations and also in that meeting, he was informed of his unsatisfactory performance.

ISSUE: Whether the employer is guilty of illegal dismissal of a probationary employee.

HELD: YES. The power of the employer to terminate a probationary employee is subject to three limitations, namely: (1) it must be exercised in accordance with the specific requirements of the contract; (2) the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law; and (3) there must be no unlawful discrimination in the dismissal.

It is undisputed that Soriano was hired as a probationary employee. As such, he did not enjoy a permanent status. Nevertheless, he is accorded the constitutional protection of security of tenure which means that he can only be dismissed from employment for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known to him by the employer at the time of his engagement.

In this case, not only did the employer fail to show that Soriano was apprised of the standards for regularization but it was likewise not shown how these standards had been applied in his case.

JOCELYN HERRERA – MANAOIS vs. ST. SCHOLASTICA’S COLLEGE
G.R. No. 188914, December 11, 2013, 712 SCRA 418

FACTS: Manaois applied for a position as full-time instructor for school year 2000-2001 at SSC. She mentioned in her application letter that she had been taking masteral studies majoring in creative writing at UP Diliman and she was completing her master’s thesis.

SSC approved her application on the basis that she finishes her MA.

At the completion of her third year of probationary employment, SSC terminated her services for failure to finish her master’s degree.

ISSUE: Whether the completion of a master’s degree is required in order for a tertiary level educator to earn the status of permanency in a private educational institution.

HELD: YES. The mere completion of the 3 year probationary period does not guarantee that the employee will automatically acquire a permanent status. Probationer can only qualify upon fulfillment of the reasonable

standards set for permanent employment as a member of the teaching personnel.

Probationary employment refers to the trial stage or period during which the employer examines the competency and qualification of job applicants and determines whether they are qualified to be extended permanent employment status. Such an arrangement allows an employer the ability to scrutinize the fitness and competency of the probationary employee while on the job.

Here, Manaois failed to comply with the stated academic requirements for the position of a permanent full-time faculty member.

PROJECT EMPLOYMENT

Principal test for determining “project employees”

The principal test for determining whether particular employees are properly characterized as “project employees” as distinguished from “regular employees” is whether or not the “project employees” were assigned to carry out a “specific project or undertaking,” the duration (and scope) of which were specified at the time the employees were engaged for that project. (ALU-TUCP vs. NLRC, 234 SCRA 678, 1994).

Project employees who worked for an aggregate period of at least one year are deemed regular employees.

Although the work to be performed is only for a specific project or seasonal, where a person thus engaged has been performing the job for at least one year, “even if the performance is not continuous or is merely intermittent, the law deems the repeated and continuing need for its performance as being sufficient to indicate the necessity or desirability of that activity to the business or trade of the employer. The employment of such person is also then deemed to be regular with

respect to such activity and while such activity exists. (Magsalin vs. National Organization Working Men, May 9, 2003).

Failure of the employer to report to the nearest employment office the termination of workers everytime a project is completed proves that the employees are not project employees (Fernandez vs. NLRC). Contrariwise, the faithful and regular effort of the Company in reporting every completion of its project and submitting the lay-off list of its employees proves the nature of employment of the workers involved therein as project employees.

D.M. CONSUNJI CORPORATION vs. ROGELIO P. BELLO
G.R. No. 159371, July 29, 2013, 702 SCRA 347

FACTS: Bello was employed by DMCI as a mason without any interruption from February 1, 1990 until October 10, 1997. He had been a very diligent and devoted worker and his job as a mason had been necessary and desirable in the usual business or trade of DMCI.

During his employment, he had been diagnosed to be suffering from pulmonary tuberculosis, thereby necessitating his leave of absence.

Upon his recovery, he had reported back to work but DMCI had refused to accept him and instead handed to him a termination paper.

ISSUE: Whether Bello is a regular employee and no longer a project employee.

HELD: YES. Bello has already acquired the status of a regular employee although he had started as a project employee of DMCI by his having been employed as a mason who had performed tasks that had been usually necessary and desirable in the business or trade of DMCI continuously from February 1, 1990 to October 5, 1997. His repeated re-hiring and the continuing need for his services over a long span of time had undeniably made him a regular employee.

A project employee is one who is hired for specific project or undertaking and the completion or termination of such project or undertaking has been determined at the time of engagement of the employee.

It is settled that the extension of the employment of a project employee long after the supposed project has been completed removes the employee from the scope of a project employee and makes him a regular employee.

FAILURE TO INFORM DURATION OF EMPLOYMENT

ISIDRO QUEBRAL et. al. vs. ANGBUS CONSTRUCTION, INC.
G.R. No. 221897, November 7, 2016, 807 SCRA 176

FACTS: Petitioners Quebral et. al. are allegedly employed as construction workers of respondent Angbus Construction, Inc. from 2008 to 2011. They alleged that they are regular employees since they were engaged to perform tasks necessary and desirable to the usual business of Angbus and that they rendered their services for several years already.

They were, however, summarily dismissed without just or authorized cause and due process thus the filing of the complaint for illegal dismissal.

Angbus maintains that Quebral et. al. were first employed by Angelfe Management & Consultancy for a one-time project only. Two or three years after the completion of the project, they were hired by Angbus.

However, no employment contracts with respect to Angelfe was produced allegedly because these were destroyed by a flood.

The LA gave credence to the Establishment Employment Report submitted to the DOLE which showed that the cause of petitioners’ termination was project completion.

ISSUE

Whether petitioners be considered regular employees based on the evidence submitted.

RULING

YES. A project based employee is assigned to a project which begins and ends at determined or determinable period of time.

In the case of Omni Hauling Services, Inc. vs. Bon, the Court ruled that employers claiming that their workers are project based employees have the burden to prove that (a) the employees were assigned to carry out a specific project or undertaking and (b) the duration and scope of which were specified at the time they were engaged for such project.

In this case, Angbus did not state the specified project or undertaking to petitioners. As to the second requirement, not only was Angbus unable to produce petitioners’ employment contract, it also failed to present other evidence to show that it informed petitioners the duration and scope of their work.

Although the absence of a written contract does not by itself grant regular status to the employees, it is evidence that they were informed of the duration and scope of their work and their status as project employees at the start of their engagement. When no other evidence is offered, the absence of employment contract raises a serious question of whether employees were sufficiently apprised at the start of their employment and their status as project employees.

Absent such proof, it is presumed that they are regular employees, thus can only be dismissed for just or authorized causes upon compliance with procedural due process.

ROY D. PASOS vs. P N C C
G.R. No. 192394, July 3, 2013, 700 SCRA 608

When the services of a project employee is extended without any specification of as to the duration, he becomes a regular employee.

SUCCESSIVE REHIRING OF PROJECT EMPLOYEE

E. GANZON, INC. (EGI) vs. FORTUNATO B. ANDO, JR.
G.R. No. 214183, February 20, 2017, 818 SCRA 165

FACTS: Respondent Ando alleged that he was a regular employee working as a finishing carpenter in the construction business of EGI. He was repeatedly hired from January 21, 2010 until April 30, 2011 when he was terminated without prior notice and hearing.

EGI countered that Ando was engaged as a project worker as evidenced by three (3) project employment contracts. He was paid the correct salary based on regional based wage order. He was adequately notified of his employment status at the time of his services were engaged by EGI.

ISSUE

Whether the repeated hiring of Ando confers him a regular employee of EGI.

RULING

NO, the length of service through repeated and successive rehiring is not the controlling determinant of the employment tenure of a project employee. The rehiring of construction workers on a project – to - project basis does not confer upon them regular employment status as it is only dictated by the practical consideration that experienced workers are more preferred.

Ando’s tenure as a project employee remained because there was certainty of completion or termination of the projects. The project employment contracts sufficiently apprised him that his security of tenure with EGI would only last as long as the specific projects he was assigned to were subsisting. When the projects were completed, he was

validly terminated from employment since his engagement was co-terminus thereto.

The fact that Ando was required to render services necessary or desirable in the operation of EGI’s business for more than a year does not in any way impair the validity of his project employment contracts. Ando was rehired precisely because of his previous experience working with the other phase of the project. EGI took into account similarity of working environment.

Finally, the second paragraph of Article 280 stating that an employee who has rendered service for at least one (1) year shall be considered a regular employee, is applicable only to a casual employee and not to a project or a regular employee referred to in paragraph one thereof.

SEASONAL EMPLOYMENT

Seasonal workers who work for more than one season are deemed to have acquired regular employment. (Hacienda Fatima vs. National Federation of Sugarcane Workers, January 28, 2003).

Seasonal workers during the off-season are merely considered on leave. (Hacienda Fatima, supra).

Effect of repeated re-hiring and length of service upon status of seasonal employee

In this case, it may appear that the work in the company is seasonal, however, the records reveal that the employee was repeatedly re-hired, sufficiently evidencing the necessity and indispensability of her services to the former’s business or trade. Owing to her length of service, she became a regular employee, by operation of law, one year after she was employed. Being a regular employee, she enjoys security of tenure in the sense that she cannot be dismissed from employment except for just and authorized cause. (Gaco vs. NLRC, 230 SCRA 260, 1994).

JAIME N. GAPAYAO vs. ROSARIO FULO & SSS
G.R. No. 193493, June 13, 2013, 698 SCRA 485

FACTS: Jaime Fulo had been in the employ of Gapayao for 14 years, from 1983 to 1997 until his death while doing repairs at the residence and business establishment of the latter. During that period, he was made to work as a laborer in the agricultural landholdings, a harvester in the abaca plantation and a repairman/utility worker in several establishments owned by Gapayao.

On the other hand, Gapayao alleges that the deceased Fulo is a freelance worker. Since he was engaged on a pakyaw basis and worked for a short period of time, in the nature of a farm worker every season, he was not precluded from working with other persons and in fact worked for them. Citing Article 280 of the Labor Code, “seasonal employees are not covered by the definition of regular and casual employees.”

ISSUE: Whether the deceased Jaime Fulo be considered a regular employee despite being a pakyaw worker.

HELD: YES. Pakyaw workers are considered employees for as long as their employers exercise control over them. Here, Gapayao wielded control over the deceased in the discharge of his functions. Being the owner of the farm on which the deceased worked, Gapayao, on his own or through his overseer, necessarily had the right to review the quality of work produced by his laborers. It matters not whether the deceased conducted his work inside Gapayao’s farm or not because the latter retained the right of control him in his work.

Farm workers generally fall under the definition of seasonal employees. Regular seasonal employees are those called to work from time to time. The nature of their relationship with the employer is 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.

Indeed the deceased was a farm worker who was in the regular employ of Gapayao. From year to year, starting January 1983 up until his death, the deceased had been working on Gapayao’s land by harvesting abaca and coconut, processing copra and cleaning weeds. His employment was continuous in the sense that it was done for more than one harvesting season. Moreover, no amount of reasoning could detract from the fact that these tasks were necessary or desirable in the usual business of Gapayao.

CASUAL EMPLOYMENT

Seafarers are contractual employees for a fixed term, governed by the contracts they sign; an exception to Art. 280 of Labor Code. It is clear that seafarers are considered contractual employees. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280 whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. (Millares vs. NLRC, 385 SCRA 306, 2002).

JOB CONTRACTING AND LABOR-ONLY CONTRACTING

Permissible job contracting or subcontracting

Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period regardless of whether such job, work or service is be performed within or outside the premises of the principal. (Vinoya vs. NLRC, 324 SCRA 469, 2000).

Effect of a finding that a contractor is a “labor-only” contractor

A finding that a contractor is a “labor-only” contractor is equivalent to declaring that there is an employer-employee relationship between the principal and the employees of the “labor-only” contractor. (Associated Anglo-American Tobacco Corp. vs. Clave, 189 SCRA 127). In such cases, the person or intermediary shall be considered merely as an agent of the employer, who shall be responsible to the workers in the manner and extent as if the latter were directly employed by him. (Sandoval Shipyards vs. Pepito, 359 SCRA 555, 2001).

Liability of principal in legitimate job contracting
vis-à-vis employees of job contractor

In legitimate job contracting, the law creates an employer-employee relationship for a limited purpose, i.e., to ensure that the employees are paid their wages. The principal employer becomes jointly and severally liable with the job contractor only for the payment of the employees’ wages whenever the contractor fails to pay the same. Other than that, the principal employer is not responsible to any claim made by the employees. (San Miguel Corporation vs. MAERC-Integrated Services, Inc.)

4. MANAGEMENT PREROGATIVE

Exercised in good faith

The free will of management to conduct its own affairs to achieve its purpose cannot be denied. (San Miguel Brewery Sales Force Union vs. Ople, 170 SCRA 25, 1989).

Although the employer has the prerogative to discipline or dismiss its employee, such prerogative cannot be exercised wantonly, but must be controlled by substantive due process and tempered by the fundamental policy of protection to labor enshrined in the Constitution.

As a general rule, the employer has the inherent right to transfer or assign an employee (PT&T vs. Laplana, 199 SCRA 485, 1991). The employer has the inherent right to transfer or assign an employee in the pursuance of its legitimate business interest subject only to the condition that it not motivated by discrimination or bad faith.

Where transfer may constitute constructive dismissal

To say that the employees were not constructively dismissed inasmuch as the transfer was effected without demotion in rank or diminution of salary benefits is, in this case, inaccurate. It is well to remember that constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefits and privileges. For an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. (Zafra vs. Court of Appeals, 389 SCRA 200, 2002)

Employment contracts providing for disclosure of marriages

An employment contract providing for a disclosure to management of any existing or future relationship with competitor company is valid exercise of management prerogatives. A company’s policy prohibiting an employee from having relationship with an employee of a competitor company is a valid exercise of management prerogative. The company has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors. (Duncan Association of Detailman-PTGWO vs. Glaxo Wellcome Philippines, Inc. G. R. 162994, September 17, 2004).

ALILEM CREDIT COOPERATIVE, INC. vs. SALVADOR BANDIOLA, JR.
G.R. No. 173489, February 25, 2013, 691 SCRA 533

FACTS: Bandiola carried an illicit relationship with a married woman, not his fellow worker in the office. He was dismissed based on one of the grounds under Personnel Policy.

ISSUE: Whether Bandiola is validly dismissed.

HELD: YES. An employer is free to regulate all aspects of employment it may make reasonable rules and regulations for the government of its employees which become part of the contract of employment provided they are made known to the employees.

6. SEPARATION PAY

Q: Will an employee who voluntarily resigns be granted separation pay?

A: An employee who voluntarily resigns may not be granted separation pay as a general rule, however, there is an exception, that is, when it is stipulated in the employment contract or CBA or such payment is authorized by the employer’s practice or policy, as in this case (Hanford Philippines, Inc. and Victor Te vs. Shirley Joseph, G.R. No. 158251, March 31, 2005).

Q: What are the instances when award of separation pay is proper?

A: Under the Code, separation pay may be awarded only in cases when the termination of employment is due to:

a) installation of labor saving devices;

b) redundancy;

c) retrenchment;

d) closing or cessation of business operations;

e) disease of an employee and his continued employment is

prejudicial to himself or his co-employees; and

f) when an employee is illegally dismissed but reinstatement is

no longer feasible.

Q: When may an employer refuse to provide separation pay?

A: Separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is an offense involving moral turpitude, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice. (Alan D. Gustilo vs. Wyeth Philippines, Inc., G.R. No. 149629, October 4, 2004)

UNILEVER PHILIPPINES, INC. vs. MARIA RUBY M. RIVERA
G.R. No. 201701, June 3, 2013, 697 SCRA 136

FACTS: Rivera was dismissed from work because she intentionally circumvented a strict company policy, manipulated another entity to carry out her instructions without company’s knowledge and approval and directed the diversion of funds, which she even admitted doing under the guise of shortening laborious process of securing funds for promotional activities from the head office. These transgressions were serious offenses that warranted her dismissal from employment and proved that her termination from work was for a just cause.

ISSUE: Whether she is entitled for separation pay.

HELD: YES. She was granted separation pay as an act of “social justice” or on “equitable” grounds taking into considerations two (2) criteria that it is required that a dismissal for a just cause (1) was not for serious misconduct and (2) did not reflect on the moral character of the employee.

7. RIGHT TO SELF - ORGANIZATION

Existence of employer-employee relationship is necessary

Existence of employer-employee relationship is essential for the determination of whether or not one may exercise right of self-organization for purposes of collective bargaining. It is a condition sine qua non for a bargaining unit that it be composed of employees, failing which affects the legality of the union itself and means the ineligibility of union membership to present a petition for certification election, as well as to vote therein. (La Suerte Cigar & Cigarette Factory vs. Director of BLR, 123 SCRA 769, 1983).

Who may unionize for purposes of collective bargaining negotiations?

General Rule: Any employee may be eligible to join and be a member of a labor union, beginning on his first day of service, whether employed for a definite period or not. (UST Faculty Union vs. Betonio, 318 SCRA 185, 1999).

Test to determine the constituency of a bargaining unit

The “community or mutuality of interests” test has provided the standard in determining the proper constituency of a collective bargaining unit.

However, where the employer operates two enterprises engaged in two different kinds of business (e.g., garment factory and cinema), the employees may be separated into two (2) distinct bargaining units for purposes of certification election. This is so because the employees in the two businesses do not share community of interest as the work they perform are different from each other. (Cruzvale vs. Laguesma, 238 SCRA 389, 1994).

8. CERTIFICATION ELECTION

Nature of Certification Election

A certification election is not a litigation but merely an investigation of a non-adversarial fact-finding character in which the BLR plays the part of a disinterested investigator seeking merely to ascertain the desires of the employees as to the matter of their representation. (Airline Pilots Association vs. CIR, 76 SCRA 274, 1977).

Role of employer in certification election

General Rule: The employer is not a party in a certification election, which activity is the sole concern of the workers.

Exception: Where the employer has to file a petition for certification election pursuant to Art. 258 of the Labor Code because it was requested to bargain collectively. Even then, it becomes a neutral bystander. (Asian Design and Mfg. Corp. vs. Calleja, 174 SCRA 477, 1989).

Petition to cancel/revoke registration is not a prejudicial question to petition for Certification Election

An order to hold a certification election is proper despite the pendency of the petition for cancellation of the registration certificate of the union. The rationale for this is that at the time the union filed its petition, it still had the legal personality to perform such act absent an order directing the cancellation. (Pepsi-Cola Products Phil. vs. Secretary of Labor, 312 SCRA 104, 1995).

Jurisdiction in determining employer-employee relationship in certification election cases

The Med-Arbiter or the Secretary of Labor has the authority to determine the existence of an employer-employee relationship between the parties in a petition for certification election. (M.Y. San Biscuits, Inc. vs. Laguesma, 198 SCRA 256, 1991).

However, the decision of the Med-Arbiter or the Secretary of Labor in this regard will not constitute res judicata in an illegal dismissal case., i.e., the principle of bar by prior judgment will not apply. (Manila Golf and Country Club, Inc. vs. IAC, 237 SCRA 207, 1994).

Disaffiliation of the local union from the mother union

Generally, a labor union may disaffiliate from the mother union to form a local union or independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. Even before the onset of the freedom period (and despite the closed-shop provision in the CBA between the mother union and management) disaffiliation may still be carried out, but such disaffiliation must be affected by a majority of the members in the bargaining unit. This happens when there is a substantial shift in allegiance on the part of the majority of the member of the union. (Associated Labor Union-PTGWO vs. NLRC, 188 SCRA 123, 1990).

Date of acquisition of legal personality of a union

The issuance of the certificate of registration by the Bureau or Regional Office is not the operative act that vests legal personality upon a local/chapter under Department Order No. 9. Such legal personality is acquired from the filing of the complete documentary requirements enumerated in Section 1, Rule VI. It could be discerned that the intention of the Labor Code and its Implementing Rules that only those labor organizations that have acquired legal personality are capacitated to file petitions for certification elections. Such is the general rule. (SMC – Mandaue Packaging Products Plants vs. Mandaue Packing Plants- San Packaging Products – SMC Monthlies Rank and file Union-FFF, G.R. No. 152356, August 16, 2005).

HERITAGE HOTEL MANILA vs. SECRETARY OF LABOR
G.R. No. 172132, July 23, 2014, 730 SCRA 400

FACTS: On October 11, 1995, National Union of Workers (NUWHRAIN) filed a petition for certification election seeking to represent all the supervisory employees of Heritage Hotel Manila.

On February 14, 1996, Heritage Hotel Manila filed an opposition on the conduct of the certification election on the ground that the membership of NUWHRAIN consisted of managerial, confidential and rank-in-file employees.

On May 12, 2000, Heritage Hotel filed a petition for the cancellation of NUWHRAIN’s registration as a labor union for failure to submit its annual financial reports and an updated list of members as required by articles 238 and 239 of the Labor Code.

The opposition by the Heritage Hotel was denied by the Labor Med-arbiter and finally DOLE directed the certification elections on June 23, 2000.

The certification election proceeded as scheduled and NUWHRAIN obtained the majority votes of the bargaining unit.

ISSUES

(1) Whether the employer has the legal right to oppose the certification election on the ground that the membership of the union consisted of managerial, confidential and rank-and-file employees.

(2) Whether the filing of the petition for the cancellation of union’s registration bar the conduct of the certification election.

RULINGS

(1) NO. Basic is the realm of labor union rights is that the certification election is the sole concern of the workers, and the employer is deemed an intruder as far as certification election is concern.

Thus, Heritage Hotel Manila lacked the legal personality to assail the proceeding for the certification election, and should stand aside as a mere bystander who could not oppose the petition, or even appeal the Med-Arbiter’s order to the conduct of the certification election.

Except when it is requested to bargain collectively, an employer is a mere bystander to any petition 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.

The employer’s meddling in the conduct of the certification election among its employees unduly gave rise to the suspicion that it intended to establish a company union.

(2) NO. Under the long established rule, the filing of the petition for the cancellation of NUWHRAIN’s registration should not bar the conduct of the certification election.

In that respect, only a final order for the cancellation of the registration would have prevented NUWHRAIN from continuing to enjoy all the rights conferred on it as a legitimate labor union, including the right to the petition for the certification election.

The employer’s petition for cancellation of union registration can be accused of interfering union activities.

Article XIII, Section 3 of the Constitution enumerates the fundamental rights of the employees such as (1) the right of all workers to self-organization, (2) collective bargaining and negotiations and (3) peaceful concerted activities.

Thus, the cancellation of a certificate or registration is the equivalent of snuffing out the life of a labor organization. For without such registration, it loses as a rule - its right under the Labor Code.

Under RA 9481, it amended and inserted in the Labor Code Article 242-A on reportorial requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership or any appropriate penalty.

9. COLLECTIVE BARGAINING

The CBA is the law between the contracting parties and compliance therewith is mandated by the express policy of the law. (Marcopper Mining Corp. vs. NLRC, 255 SCRA 322).

Collective Bargaining Agreements are unenforceable against persons not parties thereto. (Razon vs. Secretary of Labor, 222 SCRA 1, 1993).

The union representative need not be an employee of the company. However, the union officer must be an employee in the bargaining unit of the company. (Sec. 4(f), Rule III of the implementing rules of PD 1391).

The fundamental factors in determining the appropriate collective bargaining unit are:

(1) will of the employees (Globe Doctrine)

(2) affinity and unity of the employees’ interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Interests Rule)

(3) prior collective bargaining history;

(4) similarity of employment status.

(San Miguel Corporation vs. Laguesma, 236 SCRA 595, 1994)

The grievance handling and grievance procedure stipulated and provided for in the collective bargaining agreement are binding upon both the contracting parties. (Elizalde Rope Factory, Inc. vs. CIR, 8 SCRA 67, 1963)

GOOD    FAITH    BARGAINING    AND    CBA    DEADLOCK   MAY    CO-EXIST

TABANGAO   SHELL   REFINERY   EMPLOYEES   ASSOCIATION   vs.    PILIPINAS   SHELL    PETROLEUM   CORPORATION
G.R.   No.   170007,    April   7,   2014,    720    SCRA    631

FACTS: The company and the union started negotiation for a new CBA. After several negotiation, the company proposed the declaration of a deadlock and recommended that the help of a third party be sought.

On that same day, the union filed a Notice of Strike in the NCMB alleging bad faith bargaining on the part of the company. The NCMB immediately summoned the parties for the mandatory conciliation mediation proceedings but the parties failed to reach an amicable settlement.

During the cooling off period, the union conducted the necessary strike vote. The members of the union, who participated in the voting, unanimously voted for the holding of a strike.

Upon being aware of this development, the company filed a petition for Assumption of Jurisdiction with the Secretary of Labor and Employment.

ISSUE: Whether there is an absence of good faith on the part of the company.

HELD: NO. While the purpose of collective bargaining is the reaching of an agreement between the employer and the employees’ union resulting in a binding contract between the parties, the failure to reach an agreement after negotiation continued for a reasonable period does not mean lack of good faith.

The laws invite and contemplate a collective bargaining contract but do not compel one. For after all, a CBA, like any contract is a product of mutual consent and not of compulsion. As such, the duty to bargain does not include the obligation to reach an agreement.

As there was no bad faith on the part of Shell in its bargaining with the union, deadlock was possible and did occur.

Each party found the other’s offer unacceptable and neither party was willing to yield.

The company suggested seeking the assistance of a third party to settle the issue but the union preferred the remedy of filing a notice of strike. Each party was adamant in its position.

Because of the unresolved issue on wage increase, there was actually a complete stoppage of the ongoing negotiation between the parties.

The absence of the parties’ mutual declaration of deadlock does not mean that there was no deadlock. At most, it would have been simply a recognition of the prevailing status quo between the parties.

What was lacking was the formal recognition or the existence of such a deadlock because the union refused a declaration of deadlock.

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 give 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.

The employer, by its refusal to bargain, is guilty of violating the duty to bargain collectively in good faith. Hence, the Union’s draft CBA proposal may unilaterally be imposed upon the employer as the collective agreement to govern their relationship. (Divine Word vs. Secretary of Labor, 213 SCRA 759, 1992).

Although a CBA has expired, it continues to have legal effects as between the parties until a new CBA has been entered into. (Pier 8 Arrastre & Stevedoring, Inc. vs. Roldan-Confesor, 241 SCRA 294, 1995).

10. UNFAIR LABOR PRACTICE

Test to determine whether or not employer is guilty of ULP

The test of whether an employer has interfered with and coerced employees within the meaning of Art. 248 (a) of the Labor Code is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of employee’s right to self-organization and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statement of threats of the employer if there is a reasonable interference that anti-union conduct of the employer does not have and adverse effect of self-organization and collective bargaining. (Insular Life Assurance Co. Ltd. Employees Association-NATU vs. Insurance Life Insurance Co., 37 SCRA 244, 1971).

ULP of Labor Organization

Unions are not entitled to arbitrarily exclude qualified applicants for membership, and a closed-shop provision would not justify the employer in discharging, or a union in insisting upon a discharge of an employee whom the union thus refuses to admit to membership, without any reasonable ground therefore. Needless to say, if said unions may be compelled to admit new members, who have requisites qualifications, with more reason may the law and the courts exercise coercive power when the employee involved is a long standing union member, who, owing to provocations of union officers, was impelled to tender his resignation, which he forthwith withdrew or revoked. (Salunga vs. CIR, 21 SCRA 216, 1967)

Union Security Clause

Union Security clauses are also governed by law and by principles of justice, fair play, and legality. Union security clauses cannot be used by union officials against an employer, much less their own members, except with a high sense of responsibility, fairness, prudence, and judiciousness. A union member may not be expelled from her union, and consequently from her job, for personal or impetuous reasons or for causes foreign to the closed-shop agreement and in a manner characterized by arbitrariness and whimsically. (Manila Mandarin Employees Union vs. NLRC, 154 SCRA 368, 1987).

11. STRIKES AND LOCKOUTS

Good faith no longer a defense
if no procedural compliance for valid strike

A union’s claim of good faith is not a valid excuse to dispense with the procedural steps for a lawful strike. The Supreme Court’s previous rulings in People’s Industrial & Commercial Employees & Workers Organization vs. PICC did not rule that procedural requirements can be dispensed with, even if the Union believed in good faith that ULP was being committed. The good faith defense invoked in the Philippine Metal Foundries vs. CIR case had been decided in 1979, but with the enactment of RA 6715, compliance with the procedural requirements for the validity of a strike is now mandatory. (Grand Boulevard Hotel vs. Genuine Labor Organizations in Hotel Restaurant & Allied Industries, G.R. No. 153654, July 18, 2003).

Lawful means in conducting strike

A strike though valid may be declared invalid where the means employed are illegal. (Association of Independent Unions in the Philippines vs. NLRC, 305 SCRA 219, 1999).

Seven-day strike ban

The seven-day strike ban starts from the day after the results of the strike vote is submitted to the Department of Labor. In computing the period for the seven-day strike ban, the first day shall be excluded and the last day included. A deficiency of one-day from the mandatory seven-day strike ban is a fatal defect which renders the strike illegal -- strict adherence to the mandate of the law is required as substantial compliance with a mandatory provision will not suffice. (CCBPI Postmix Workers Union vs. NLRC, 299 SCRA 410, 1998).

Compensation of striking workers

The union members who were merely instigated to participate in the illegal strike should be treated differently from their leaders. Part of the benign consideration for labor is the policy of reinstating rank-and-file workers who were merely misled in supporting illegal strikes. Nonetheless, these reinstated workers shall not be entitled to backwages as they should not be compensated for services skipped during the illegal strike. (Lapanday Workers Union vs. NLRC, 248 SCRA 97, 1995).

Requisites for a valid lockout

All the requisites for a valid strike likewise apply for a lockout to be valid. Thus, it must be for a lawful purpose, undertaken through lawful means, and in compliance with the procedural requirements of law such as: notice of lockout, cooling-off period, taking and filing of lockout vote, and seven-day lock-out ban. (Association of Independent Unions in the Philippines vs. NLRC, 305 SCRA 219, 1999).

12. ASSUMPTION OF JURISDICTION BY THE SECRETARY OF LABOR

The Secretary of Labor is not precluded from assuming jurisdiction over a labor dispute in a vital industry even if there is no notice of strike or a formal complaint. He need not wait for a notice of strike or a formal complaint about a strike already in progress before he could exercise the powers given him by law to avoid the strikes, picketing or lockouts contemplated in the grant of power. (Saulog Transit vs. Lazaro, 128 SCRA 591, 1984).

While termination by reason of an illegal strike requires hearing, replacement by reason of violation of a return-to-work order does not need one. (Free Telephone Workers Union vs. PLDT, 113 SCRA 663, 1982).

The authority of the Secretary of Labor to assume jurisdiction in accordance with Art. 263 (g) of the Labor Code necessarily includes and extends to all questions and controversies arising from the labor dispute, including cases over which the labor arbiter has exclusive jurisdiction. (International Pharmaceuticals, Inc. vs. Secretary of Labor, 205 SCRA 59, 1992).

13. TERMINATION OF EMPLOYMENT

As an Exercise of Management Prerogative

The discipline of employees is a management prerogative. If this prerogative is exercised in good faith for the advancement of employer’s interest and need not for the purpose of defeating the rights of the employees by law or contract, the court will uphold it. (SMB Sales Force Union vs. Ople, 170 SCRA 25, 1989).

Illegality in the Manner of Dismissal
(Dismissal without Due Process)

The Supreme Court has apparently abandoned the Serrano ruling and reverted to the Wenphil ruling. In so far as it ruled that in cases where there was substantial evidence proving just cause BUT that due process was not followed, the termination will be upheld but the employer will be penalized the amount of P30,000.00. The Supreme Court stated that “it would not be right to order either reinstatement of the dismissed employee or payment of backwages to the employee. But for failing to comply with the procedure prescribed by law in terminating the services of an employee, the employer should be made liable for payment of separation pay. (Agabon vs. NLRC, G.R. No. 158693, November 17, 2004).

If the dismissal is based on a just cause under Article 282 but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee; and

If the dismissal is based on an authorized cause under Article 283 but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of his management prerogative. (Jaka Food Processing Corporation vs. Darwin Pacot, G.R. No. 151378, March 28, 2005).

Constructive Dismissal

After 30-day period of preventive suspension, the employee must be reinstated to his former position because suspension beyond this maximum period amounts to constructive dismissal. (Hyatt Taxi Services vs. Catinoy, 359 SCRA 686, 2001).

Temporary Lay-off

There is no specific provision of law which treats of a temporary retrenchment or lay-off and provides for the requisites in effecting it or a period or duration therefore. These employees cannot however be forever “temporary” laid-off. To remedy this situation, Article 286 may be applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in a floating status for only a period of six months. After six months, the employees should either be recalled to work or permanently retrenched in accordance with the requirements of law. Failing to comply with this would be tantamount to dismissing the employees without cause, and holding employer liable for such illegal dismissal. (Sebuguero vs. NLRC, 245 SCRA 532, 1995)

Suspension of operations

Article 286 of the Labor Code is clear -- there is termination of employment when an otherwise bona fide suspension of work exceeds 6 months. The cessation of employment for more than six months was patent and the employer has the burden of proving that the termination was for a just or authorized cause. (Mayon Hotel & Restaurant vs. Rolando Adana, G.R. No. 157634, May 16, 2005).

14. JURISDICTION
Money Claim

The “money claims of workers” referred to in par. 3 of Article 217 embraces money-claims which arises out of or in connection with the employer-employee relationship, or some aspect or incident of such relationship. (San Miguel Corp. vs. NLRC, 161 SCRA 719, 1988)

Factors in determining jurisdiction

It is the character of the principal relief sought that appears essential in this connection. Where such principal relief is to be granted under labor legislation or a collective bargaining agreement, the case should fall within the jurisdiction of the Labor Arbiter and NLRC. (San Miguel Corp. vs. NLRC, 161 SCRA 719, 1988).

The general rule is that an employer-employee relationship must exist between the party litigants for the labor courts to exercise jurisdiction over a particular case. The exception to the rule is found in Article 212 (i) of the Labor Code where a labor dispute can nevertheless exist regardless of whether the disputants stand in the proximate relationship of employer and employee provided the controversy concerns, among others, the terms and conditions of employment or a change or arrangement thereof. The existence of a labor dispute is not negatived by the fact that the plaintiffs and defendants do not stand in the proximate relation of employer and employee. (San Miguel Corporation Employees Union-PTGWO vs. Bersamira, 186 SCRA 496)

Jurisdiction of Labor Arbiters

Complaints for illegal dismissal filed by the employees who were terminated pursuant to the CBA’s union security clause falls within the jurisdiction of the Labor Arbiter and not the Grievance Machinery. (Sanyo Phil. Workers Union-PSSLU vs. Cañizares, 211 SCRA 361, 1994).

Jurisdiction of Regional Director

The Regional Director exercises both visitorial and enforcement power over labor standard cases, and is therefore empowered to adjudicate uncontested money claims of persons still employed. (Maternity Children’s Hospital vs. Secretary of Labor, 174 SCRA 632, 1989).

15. REMEDIES
Appeal

The requirement to perfect the appeal from the Labor Arbiter to the NLRC within 10 calendar days (Art. 223) is mandatory and jurisdictional. Failure to do so renders the questioned decision final and executory, and is deprive the appellate court or body of the legal authority to alter the final judgment, much less to entertain, the appeal. (Sublay vs. NLRC, 324 SCRA 188, 2000).

An appeal is perfected to the NLRC once an appellant files the memorandum of appeal, pays the required appeal fee and, where an employer appeals and a monetary award is involved, the latter posts an appeal bond or submits a surety bond issued by a reputable bonding company. (Soliman Security Services, Inc. vs. Court of Appeals, 384 SCRA 514, 2000)

Where the decision of the Labor Arbiter involves a monetary award, the appeal is deemed perfected only upon the posting of a cash or surety bond but also within ten (10) days from receipt to such decision in an amount equivalent to the monetary award. (Mary Abigalis Food Services vs. Court of Appeals, G. R. No. 140294, May 9, 2005)

Motion for Reconsideration

Before a petition for certiorari under Rule 65 of the Rules of Court may be availed of, the filing of a motion for reconsideration is a condition sine qua non to afford an opportunity for the correction of the error or mistake complained of (ABS-CBN Supervisors Employees Union Members vs. ABS CBN Broadcasting Corp., 304 SCRA 199). However, as an exception, the failure of an appellant to file a motion for reconsideration may be excused where the error sought to be reviewed is a patent nullity. (Zurbano vs. NLRC, 228 SCRA 556, 1993)

A second motion for reconsideration is a prohibited pleading which should not be entertained at all. (Jardin vs. NLRC, 326 SCRA 299, 2000)

Petition for Certiorari under Rule 65

The period or manner of appeal from the NLRC to the Court of Appeals is governed by Rule 65 pursuant to the ruling in the case of St. Martin Funeral Homes vs. NLRC, 295 SCRA 494, 1998. It states that the petition may be filed not later than 60 days from notice of the judgment, or resolution sought to be assailed.

The fact that the assailed decision becomes final and executory after a ten-day period does not preclude the adverse party from challenging it by way of an original action for certiorari under Rule 65 of the Rules of Court. He may even further pray for the issuance of a restraining order or a temporary injunction to prevent the immediate execution of the assailed decision. (Caramol vs. NLRC, 225 SCRA 582, 1993).

Petition for Review under Rule 45

From the Court of Appeals, the aggrieved party may appeal to the Supreme Court thru a verified petition for review on certiorari under Rule 45 of the Rules of Court. Questions of facts cannot be raised in a petition for review on certiorari. (Abalos vs. Philex Mining Corp., November 27, 2002).

Review of decision of Secretary of Labor

In conformity with the case of St. Martin Funeral Homes vs. NLRC, the remedy of an aggrieved party is to timely file a motion for reconsideration with the Office of the Secretary of Labor as a precondition for any further or subsequent remedy, and then seasonably file a special civil action for certiorari to the Court of Appeals under Rule 65 of the Rules of Court.

Finality of BLR decision in petitions for cancellation of union registration

If the petition for cancellation is directly filed with BLR, its decision canceling union registration is not yet final and executory as it may still be appealed to the Office of the Secretary. However, if the petition for cancellation was filed with the Regional Office, the decision of the BLR resolving an appeal of the said Regional Office is final and executory. (Abbot Laboratories Philippines, Inc. vs. Abbot Laboratories Employees Union, 323 SCRA 392, 2000).

Review of decision of Voluntary Arbitrators

Sections 1, 3 and 4 of the Rule 43 of the 1997 Rules of Civil Procedure provides the rule on appeals. In consonance with Rule 43, the petitioner, upon receipt of a copy of the Voluntary Arbitrator’s Decision, should have filed with the CA, within the 15-day reglementary period, a petition for review, not a petition for certiorari, which is not a substitute for a lapsed appeal. Without an appeal (petition for review) seasonably filed, the questioned Decision of the Voluntary Arbitrator became final and executory after ten calendar days from notice. Moreover, Article 262-A of the Labor Code provides that the award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrator shall be final and executory after ten calendar days from receipt of the copy of the award or decision by the parties. Indeed, once a decision or resolution becomes final and executory, it is the ministerial duty of the court or tribunal to order its execution. Such order is not appealable. (Manila Midtown Hotel vs. Voluntary Arbitrators Borromeo, G. R. No. 138305, September 22, 2004).

16. EXECUTION OF JUDGMENTS

The general rule is that when a decision becomes final and executory, it is the ministerial of the court to issue a writ of execution to enforce the judgment. (Torres vs. NLRC, 330 SCRA 311, 2000). As an exception to the rule, a writ of execution may be refused on equitable grounds as when there was a change in the situation of the parties that would make execution inequitable or when certain circumstances, which transpired after judgment became final, rendered execution of judgment unjust. (Baclayan vs. Court of Appeals, 181 SCRA 761, 1990).

Under Rule 39, Section 6 of the 1997 Rules of Civil Procedure, a final and executory judgment may be executed on motion within 5 years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. This rule applies to labor cases as the Rules of Court are applicable to labor cases in a suppletory capacity. (Tag Fibers vs. NLRC, 344 SCRA 29, 2000).

17. DOCTRINES

Q: Explain the principle of “A Fair day’s wage for a fair day’s labor”?

A: The age-old rule governing the relation between labor and capital, or management and employee of a “fair day’s wage for a fair day’s labor” remains as the basic factor in determining employees’ wages. 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 (Caltex Refinery Employees Association (CREA) vs. Brillantes, 279 SCRA 218), a situation which we find is not present in the instant case. It would neither be fair nor just to allow private respondents to discover something they have not earned and could not have earned because they did not render services at the Kalibo office during the stated period. ( Aklan Electric Cooperative vs. NLRC, G.R. No. 121439, January 25, 2000.)

Q: What is the “Equal pay for equal work” principle?”

A: Persons who work with substantially equal qualifications, skills, effort and responsibility, under similar conditions should be paid similar salaries. (International School Alliance of Educators vs. Quisumbing, 333 SCRA 13, 2000).

Q: What is a “Red Circle Rate?”

A: Red Circle Rate allowance is an amount, not included in the basic salary, that is granted by the company to an employee who is promoted to a higher position grade but whose equal actual basic salary at the time of the promotion already exceeds the maximum salary for the position to which he or she is promoted. It applies to specific individuals whose salary levels are unique with respect to their new and higher positions. (Meralco vs. Secretary of Labor).

Q: Are non-Muslim entitled to Muslim Holiday pay?

A: Yes. While Article 3 (3) of the Code of Muslim Laws provides that the provisions of the Code shall be applicable only to Muslims, there should no distinction between Muslims and non-Muslims as regard the payment of benefits of Muslim Holidays. Otherwise, Muslims throughout the Philippines are also not entitled to holiday pays on Christian Holidays as declared by law as regular holidays. (San Miguel Corp. vs. Court of Appeals, 30 January 2002).

Q: What is “surface bargaining” or “blue sky bargaining?”

A: Surface Bargaining as defined as “going through the motions of negotiating” without any legal intent to reach an agreement. (Standard Chartered Bank Employees Union vs. Confesor, G.R. No. 114974, June 16, 2004).

Q: What is a yellow dog contract?

A: It is a promise exacted from workers as a condition of employment that they are not to belong to or attempt to foster a union during their period of employment.

Q: What is a substitutionary doctrine?

A: This doctrine holds that since the CBA is binding on the parties for the period therein specified, the employees cannot validly revoke the same by the simple expedient of changing their bargaining representative. If the employees do change their representative, the CBA nonetheless continues to bind the parties, though the new agent may bargain for the shortening of the contract period.

Q: What is the Doctrine of INNOCENT BY-STANDER?

A: The right to picket is not absolute. The courts can confine the sphere of communication or demonstration to the disputants and insulate establishments or persons with no industrial connection or interest to the dispute.

Q: What is the Successor-in-interest Doctrine?

A: The rule is that employment contracts and collective bargaining agreements are not enforceable against a transferee of an enterprise, labor contracts being in personal, thus binding only between the parties.

Exceptions:

(1) When expressly assumed by the transferor;

(b) When transfer was done with intent to circumvent the law;

© When transfer was clothed with bad faith.

Q: What is the Doctrine of MEANS and PURPOSES?

A: A strike is legal when lawful means concur with lawful purpose or a strike may be legal at the start but it may be declared illegal when the means used in attaining the same are illegal.

Q: What is “featherbedding”?

A: Featherbedding refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of an action, for services which are not performed or not to be performed. The essence of featherbedding is the exaction of money, or other things of value from the employer by the union. It is not featherbedding where work is performed no matter how unnecessary or useless it may be.

SOCIAL   SECURITY   ACT   OF   1997   (R.A.   8282)

YOLANDA   SIGNEY   vs.   SOCIAL SECURITY SYSTEM
G.R.   No.   173582,   January   28,   2008,   542   SCRA   629

FACTS: Rodolfo Signey died on May 21, 2001, in his SSS member records, he had designated his common-law wife, Yolanda as primary beneficiaries and his four illegitimate children as secondary beneficiaries. The deceased had a legal wife, Editha, while their only legitimate child predeceased him.

ISSUE: Who is entitled to the death benefits?

HELD: YOLANDA is disqualified to be a beneficiary being a common-law wife while it follows that the dependant illegitimate minor children of the deceased, because the legitimate child of the deceased predeceased him, as the only qualified primary beneficiaries of the deceased, are entitled to 100% of the death benefits.

PREMIUM PAYMENTS OF PERIOD OF SERVICE TO GSIS INCLUDED IN THE RETIREMENT COMPUTATION

G.S.I.S. vs. APOLINARIO C. PAUIG
G.R. No. 210328, January 30, 2017, 816 SCRA 200

FACTS: Pauig was the Municipal Agriculturist of San Pedro, Isabela. He started in the government service as Emergency Laborer on casual status. Later, he became a temporary employee from 1972 to 1977. He thereafter became a permanent employee and he also became a GSIS employee as indicated in his information for membership.

On November 3, 2004, he retired from the service upon reaching the mandatory retirement age of sixty five (65) years old. But when he filed his retirement papers with the GSIS, the latter processed his claim based on a Record of Creditable Service (RCS) and a total length of service of only 27 years.

Disagreeing with the computation, Pauig wrote a letter-complaint to the GSIS arguing that his first fourteen (14) years in the government service had been erroneously omitted.

The GSIS ratiocinated that Pauig’s fourteen (14) years in the government were excluded in the computation of his retirement benefits because during those years, as no premium payments were remitted to it.

ISSUE

Whether Pauig is correct in asserting that his first fourteen (14) years of service should be included to the computation of his retirement benefits.

RULING

NO. Based on the records, Pauig began his career in the government as Emergency Laborer on a casual status. Then he became a temporary employee from 1972 to 1977. The Court noted that it was not until 1997 that the compulsory membership in the GSIS was extended to employees other than those on permanent status.

The law provides under Sec. 3 of RA 4968 that membership in the GSIS shall be compulsory for all employees receiving compensation who have not reached the compulsory retirement age irrespective of employment status.

The primordial reason why there were no deductions during the fourteen (14) years was because Pauig was not yet a GSIS member at that time. There was thus no legal obligation to pay the premium as no basis for the remittance of the same existed. And since only periods of service when premium payments were actually made and duly remitted to the GSIS shall be included in the computation of retirement benefits, said period of fourteen (14) years must necessarily be excluded from Pauig’s creditable service for retirement purposes.

WHEN   EMPLOYMENT   NOT   DEEMED   TERMINATED

LAGONOY   BUS   CO., INC. vs.   COURT   OF   APPEALS
G.R.   No. 165598,   August   14,   2007,   530   SCRA   121

An employer may bona fide suspend the operations of its business for a period not exceeding six months. In such a case, there is no termination of the employment of the employees, but only a temporary displacement. When the suspension of the business operations exceeds six months, then the employment of the employees could be deemed terminated. If the operation of the business is resumed within six months, it shall be the duty of the employer to reinstate his employees to their former positions without the loss of seniority rights, if the latter would indicate their desire to resume work within one month from such resumption of operations.

EXTRA-MARITAL     AFFAIRS    WITH    CO-TEACHER
A     JUST     CAUSE    FOR     DISMISSAL

DANILO OGALISCO   vs.   HOLY   TRINITY   COLLEGE   OF   GENSAN
G.R.   172913,   August   9, 2007,   529 SCRA 672

Substantial evidence existing on record showed convincingly the extra-marital affairs of Ogalisco with his co-teacher. Hence, his termination is valid and legal under Article 282 of the Labor Code.

MOTION   TO   REDUCE   APPEAL   BOND

COLBY   CONSTRUCTION CORP.   vs.   COURT   OF   APPEALS
G.R.   No.   170099,   November   28,   2009,   539   SCRA 159

ISSUE: Whether or not an appeal is perfected by its timely filing of a motion to reduce bond?

HELD: NO. An employer who files a motion to reduce the appeal bond is still required to post the full amount of cash or surety bond within the ten-day reglementary period, even pending resolution of his motion.

HERITAGE HOTEL MANILA vs. NLRC, RAÑON & VILLA
G.R. Nos. 180478-79, September 3, 2009, 598 SCRA `127

No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award. The mere filing of a motion to reduce bond without complying with the requisites shall not stop the running of the period to perfect an appeal. The payment of the appeal bond is a jurisdictional requisite for the perfection of an appeal to the NLRC.

UNIVERSITY PLANS, INC. vs. BELINDA P. SOLANO
G.R. No. 170416, June 22, 2011

The Supreme Court ruled that although the requirement of an appeal bond is indispensable in the perfection of an appeal as clearly provided for in Art. 223 of the Labor Code, and as emphasized in the Rules of Procedure of the NLRC. It is likewise provided that reduction of the same is allowed in very specific instances.

The NLRC was not precluded from making a preliminary determination of the employer’s financial capacity to post the required bond without necessarily passing upon the merits of the justification for the reduced bond, the evidence for the purpose would necessarily be less than the evidence required for a ruling on the merit.

UNION REGISTRATION

20% of the Bargaining Unit

TAKATA PHILIPPINES vs. BUREAU OF LABOR RELATIONS
G.R. No. 196276, June 4, 2014, 725 SCRA 61

FACTS: On July 7, 2009, Takata filed with DOLE Regional Office a petition for cancellation of the certificate of union registration of SALAMAT on the ground of misrepresentation, false statement and fraud with respect to the numbers who participated in the organization meeting on May 1, 2009.

During the organizational meeting of SALAMAT, only 68 attendees signed the attendance sheet and which number comprised only 17% of the total number of 396 regular rank-in-file employees. Takata claimed that the union failed to comply the 20% minimum membership requirement.

Takata further insisted that only 119 union members were listed in the union registration instead of 396 rank-and-file employees.

On the other hand, SALAMAT claimed that the 119 union members were more than the 20% required for union registration and further argued that the 68 attendees to the organizational meeting constituted more than 50% of the total union membership of 119.

ISSUES:

(1) Whether the 68 attendees in the organization meeting was obviously less than 20% of the total number of 396 regular rank-and-file employees.

(2) Whether the 119 union members with no signature properly represented the 396 members of the rank-and-file employees.

HELD: (1) The 68 attendees to the organizational meeting represents more than 50% of the total union membership.

The list of employees who participated in the organization meeting was a separate and distinct requirement from the list of the name of members comprising at least 20% of the employees in the bargaining unit.

(2) YES. There was no requirement for signatures opposite the names of the 119 union members.

The 119 union members were more than the 20% for union registration as well the requirement for petition for certification election.

Therefore, no ground of misrepresentation was present to warrant the cancellation of the union registration

Retraction

MARIWASA SIAM CERAMICS, INC. vs. SECRETARY OF LABOR
G.R. No. 183317, December 21, 2009, 608 SCRA 706

FACTS: SMMSC was issued a Certificate of Registration as a legitimate labor organization by the DOLE. A month later, Mariwasa filed a petition for Cancellation of Union Registration against SMMSC for failure to comply with the 20% union membership requirement for its registration as a legitimate labor organization because 102 employees had executed affidavits of recantation of their union membership.

ISSUE: Whether the Union Registration should be cancelled by reason of the affidavits executed by the employees recanting their union membership.

HELD: NO. Withdrawals made before the filing of the petition for certification election are presumed voluntary unless there is a convincing proof to the contrary, whereas withdrawals made after the filing of the petition are deemed involuntary, because then the employees supporting the petition become known to the employer since their names are attached to the petition. Thus, the employer may use foul means for said employees to withdraw their support.

The fact remains that at the time of the union’s application for registration, the affiants were members of SMMSC and they comprised more than the required 20% membership for purposes of registration as a labor union. Article 234 of the Labor Code merely requires a 20% minimum membership during the application for union membership. It does not mandate that a union must maintain the 20% minimum membership requirement all throughout its existence.

Cancellation

STA. LUCIA   EAST   COMMERCIAL   CORPORATION
vs.    THE    SECRETARY   OF   LABOR
G.R.   No.   162355,   August   14,   2009,   596   SCRA   92

ISSUE: Whether the inclusion of disqualified employees is the ground for cancellation for registration as legitimate labor organization.

HELD: NO. The inclusion in the union of disqualified employees is not among the grounds for cancellation of registration unless such inclusion is due to misrepresentation, false statement or fraud under the Labor Code. Thus, CLUP having been validly issued a certificate of registration, should be considered as having acquired juridical personality which may not be attacked collaterally.

Collateral Attack on Legal Personality

SAMAHANG   MANGGAGAWA (SMCC-SUPER)    vs.   CHARTER
CHEMICAL AND   COATING   CORPORATION
G.R.   No. 169717,   March   16,   2011,   645   SCRA   538

The legal personality of the union cannot be collaterally attacked in the certification election proceedings.

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 mere investigation, 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; 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.

CONSTRUCTIVE DISMISSAL

NELSON GAN vs. GALDERMA PHILIPPINES, INC.
G.R. No. 177167, January 17, 2013, 688 SCRA 666

FACTS: Nelson was hired by Galderma as Product Manager for its Consumer Products Division to handle the marketing of CBPL. With his satisfactory performance since during the first year, Nelson was acknowledged and rewarded by Galderma through positive performance appraisal, salary and benefits increases, and informal notations on his marketing reports.

Nelson’s above-average performance in handling CBPL continued in the first quarter of 2002. On April 11, 2002, feeling he was harassed, coerced and intimated by his superior, Nelson severed his employment ties with Galderma. On the same day, his immediate superior at the time accepted the resignation tendered.

ISSUE: Whether Nelson was illegally or constructively dismissed.

HELD: NO. Constructive dismissal is defined as quitting of work because continued employment is rendered impossible, unreasonable or unlikely.

The test of constructive dismissal is whether a reasonable person in the employee’s position would have felt compelled to give up his employment/position under the circumstances. Since Nelson submitted a resignation letter, it is incumbent upon him to prove with clear, positive, and convincing evidence that his resignation was not voluntary but was actually a case of constructive dismissal, that it is a product of coercion or intimidation. Nelson could not have been coerced.

The acts of “harassment,” if true, do not suffice to be considered as “peculiar circumstances” material to the execution of the subject resignation letter that is couched in a clear, concise and categorical language. Its content confirmed his unmistakable intent to resign.

Further, Nelson is no ordinary laborer with limited education and skills, he is not a rank and file employee with inadequate

understanding such that he would be easily beguiled or forced into doing something against his will. He was a management employee holding a responsible position.

GIRLY G. ICO vs. SYSTEM TECHNOLOGY INSTITUTE, INC.
G.R. No. 185100, July 9, 2014, 729 SCRA 439.

When another employee is soon after appointed to a position which the employer claims has been abolished, while the employee who had to vacate the same is transferred against her will to a position which does not exist in the corporate structure, there is evidently a case of illegal constructive dismissal.

MCMER CORPORATIONS, INC. vs. NLRC & FELICIANO LIBUNAO
G.R. No. 193421, June 4, 2014, 725 SCRA 1

Constructive dismissal is defined as a cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or diminution in pay or both; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee.

The test of constructive dismissal is whether a reasonable person in the employer’s position would have felt compelled to give up his position under the circumstances. It is an act amounting to dismissal but made to appear as if is were not. Constructive dismissal, is therefore, a dismissal in disguise.

As maybe gleaned from the records, what transpired on July 20, 2007 was not merely an isolated outburst on the part of the employer. The latter’s behavior towards his employee shows a clear insensibility rendering the working condition of Libunao unbearable.

Libunao had reason to dawdle and refuse to comply with the summons of his employer out of severe fear that he will be physically harmed.

In fact, the same w as clearly manifested by his immediate reaction to the situation by going to the Valenzuela Police to report the incident.

VICENTE ANG vs. CEFERINO SAN JOAQUIN, JR.
G.R. No. 185549, August 7, 2013, 703 SCRA 269

FACTS: San Joaquin testified in court relative to the 41 criminal cases filed by his former co-employees against his employer, Vicente Ang. The latter began treating him with hostility and antagonism.

Later on, a heated argument ensued between them and led Ang tearing his Daily Time Record.

The following day, he received a Memorandum from Ang placing him under preventive suspension.

ISSUE: Whether the act of tearing employee’s time card constitutes constructive dismissal.

HELD: YES. By destroying his time card, Ang discontinued his relationship with San Joaquin. The purpose of a time card is to show an employee’s attendance in office for work and to be paid accordingly, taking into account the policy of “no work, no pay.”

A daily time record is primarily intended to prevent damage or loss to the employer which could result in instances where it pays an employee for no work done.

VENANCIO S. REYES vs. RP GUARDIANS SECURITY AGENCY
G.R. No. 193756, April 10, 2013, 695 SCRA 620

There is an illegal dismissal when employees were placed on floating status beyond the reasonable six-month period.

ORCHARD   GOLF &   COUNTRY   CLUB   vs.   AMELIA   R.   FRANCISCO
G.R.   No.   178125,   March   18,   2013,   693   SCRA   497

          Demotion      in       rank      constitutes      constructive      dismissal.

VOLUNTARY ARBITRATOR

7K CORPORATION vs. EDDIE ALBANICO
G.R. No. 182295, June 26, 2013, 699 SCRA 700

The voluntary arbitrator has jurisdiction over the legality of the dismissal and entitlement to backwages only when made through the agreement of the parties.

DEATH    OF    SEAFARER   -   INSTANCE   WHEN   DEATH    BENEFITS     MAY      BE    DENIED

AGILE    MARITIME   RESOURCES,   INC.   vs.   APOLINARIO    N. SIADOR
G.R.   No. 191034,   October   1,   2014,    737   SCRA   360

FACTS: Dennis, son of Apolinario, was hired as ordinary seaman by petitioner Agile.

Apolinario filed a complaint for death benefits against petitioner Agile for the death of Dennis who fell from the vessel and died in the high seas.

According to Apolinario, Dennis’ actuation a few days and moments before the incident point to the conclusion that Dennis was already mentally disturbed a few days before he plunged into and drowned in the ocean and cannot be considered willful.

Although the unfortunate incident was undisputed, Agile contends that someone saw Dennis jumped overboard. Additionally, Agile argues that because of the personal circumstances of Dennis characterized by heavy personal and psychological problems may have driven him to take his own life.

This was also backed up by statements of crew members and as found by LA in dismissing the complaint. On appeal, NLRC affirmed the LA’s ruling.

The CA reversed the NLRC and sustained the position that prior to his death, Dennis had been suffering from mental instability and could not be considered to have intentionally taken his life.

ISSUE: Whether Apolonio is entitled to the death benefits.

HELD: NO. Under the POEA-SEC, no compensation shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.

As a claimant, Apolinario has the burden of proving that the seafarer’s death (1) is work-related and (2) happened during the term of the employment.

Sufficient proof of insanity or mental sickness may be presented to negate the requirement of willfulness as a matter of counter - defense.

Since the willfulness may be inferred from the physical act itself of the seafarer, the insanity or mental illness required to be proven must be one that deprived him of the full control of his senses. In this regard, selected circumstances prior to and surrounding his death might have provided substantial evidence of the existence of such insanity or mental sickness.

Thus, having proved that the death of Dennis was through his own fault, his father, Apolinario, is not entitled to death benefits.

SEPARATION PAY UNDER THE CBA

BENSON INDUSTRIES EMPLOYEES UNION vs. BENSON INDUSTRIES
G.R. No. 200746, August 6, 2014, 732 SCRA 318

FACTS: Benson Industries sent its employees a notice of their intended termination from employment on the ground of closure and/or cessation of business operations.

The employees were paid of their separation pay computed at 15 days for every year of service.

Despite receipt of their separation pay, the employees were still claiming for the payment of additional separation pay at the rate of four (4) days for every year of service based on the provision of the collective bargaining agreement (CBA) granting separation pay equivalent to not less than nineteen (19) days pay for every year of service.

Benson opposed its employees claim averring that the separation pay already paid to them was already more than what the law requires.

ISSUES: (1) Whether Benson is still liable to pay the additional separation pay.

(2) What is a collective bargaining agreement? Is it the law between the parties?

(3) Whether serious business losses generally exempt the employer from paying separation benefits.

HELD: (1) YES, it is undisputed that a CBA was forged by the employer, Benson, and its employees, through the union, to govern their relations.

It is equally undisputed that Benson agreed to and was thus obligated under the CBA to pay its employees who had been terminated without any fault attributable to them separation benefits at the rate of 19 days for every year of service.

(2) A collective bargaining agreement refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit.

Where the CBA is clear and unambiguous, it becomes the law between the parties and compliance therewith is mandated by the express policy of the law.

(3) YES. Serious business losses generally exempt the employer from paying separation benefits under Article 297 of the Labor Code.

A FACEBOOK POST WITHOUT DIVULGING COMPANY’S INFORMATION IS NOT A GROUND FOR DISMISSAL

INTERADENT ZAHNTECHNIC PHIL., INC. vs. REBECCA SIMBILLO
G.R. No. 207315, November 23, 2016, 810 SCRA 331

FACTS: Respondent Rebecca Simbillo was petitioner Interadent Zahntechnic Phil., Inc.’s treasurer.

Petitioner, through a Notice to Explain, required Simbillo to explain and to attend an administrative hearing regarding a message she posted on her Facebook account referring to company concerns with the BIR.

Respondent Simbillo wrote a reply-letter arguing that she was already constructively dismissed prior to her receipt of the notice.

Petitioner argued that the act alleged to have caused their lost and confidence in Simbillo was her Facebook post disclosing confidential information that gives the impression that Interadent is under investigation by the BIR for irregular transactions.

Respondent Simbillo asserts that her dismissal was without just cause. She averred that the Facebook entry cannot support the breach of trust since it did not mention Interadent.

ISSUE

Whether the Facebook post of the respondent Simbillo referring to the company concerns with the BIR constitutes a valid ground for dismissal.

RULING

NO, it is not a valid ground for dismissal.

As a managerial employee, the existence of a basis for believing that Simbillo has breached the trust of petitioner justifies her dismissal. However, to be a valid ground, loss of trust and confidence must be based on willful breach of trust, that is, done intentionally, knowingly and purposely without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently.

The Facebook entry of Simbillo did not contain any corporate record or any confidential information. No company information or corporate record was divulged by Simbillo.

Respondent Simbillo can only be said to have acted carelessly in making such a comment on Facebook, however, such would not amount to loss of trust and confidence as to justify her termination from employment.

When the breach of trust or loss of confidence conjectured upon is not borne by clearly established facts, such dismissal on the ground of loss and trust and confidence cannot be upheld.

CIVIL SERVICE EMPLOYEE INVALIDLY DISMISSED IS ENTITLED FOR BACKWAGES AND REINSTATEMENT

JULIUS B. CAMPOL vs. MAYOR RONALD S. BALAO-AS et. al.
G.R. No. 197634, November 28, 2016, 810 SCRA 501

FACTS: Campol served as Secretary of the Sanggunian Bayan (SB) of the Municipality of Baliney, Abra since 1999.

During the 2004 elections, Balao-as and Sianen won as mayor and vice mayor, respectively. Thereafter their assumption to office, The SB passed a resolution terminating Campol as SB Secretary on the ground that he was absent without approved leave from August 1, 2004 to September 30, 2004.

Campol challenged his dismissal before the CSC-CAR which ruled in his favor, however, Vice Mayor Sianen issued a Memorandum dropping Campol from the rolls.

The CSC granted his appeal and ruled that Campol was properly dropped from the rolls.

The CA ruled that Campol was illegally dropped from the rolls, however, it refused his reinstatement as he was gainfully employed with the PAO since October 2005. He was awarded backwages only from the time of his dismissal until October 2005, prior to his employment with another government agency.

ISSUES

1) Whether Campol is entitled to reinstatement.

2) Whether Campol should be awarded backwages only for the period covering his illegal dismissal until his new employment with the PAO.

RULINGS

1) YES, Campol should be reinstated to his position as SB Secretary.

In the event that another person has already been appointed to his post, that person has to give way to the employee whose right to the office has been recognized by the competent authorities.

In the eyes of the law, the position never became vacant since Campol was illegally dropped from the rolls.

2) NO. Campol is entitled to the payment of backwages from the time of his illegal dismissal until he is reinstated to his position. The CA erred in ruling that the backwages should only cover the period of his illegal dismissal until his new employment with the PAO.

An employee of the civil service who is ordered reinstated is also entitled to the full payment of his backwages during the entire period that he was wrongfully prevented from performing the duties of his position and from enjoying its benefits. This is necessarily so because, in the eyes of the law, the employee never truly left the office.

In cases like this, the twin award of reinstatement and payment of full backwages as dictated by the constitutional mandate to protect civil service employee’s right to security of tenure. Anything less that this fails short of the justice due to government employee unfairly removed from office.

DISEASE NOT A GROUND FOR TERMINATION IN THE ABSENCE OF PUBLIC HEALTH AUTHORITY CERTIFICATION

MARINA’S CREATION INTERPRISES et. al. vs. ROMEO V. ANCHETA
G.R. No. 218333, December 7, 2016, 813 SCRA 531

FACTS: Marina is engaged in the business of making shoes and bags. In January 2010, Marina hired respondent Ancheta as a sole attacher in Marina.

In March 2011, Ancheta suffered an intra-cranial hemorrhage (stroke) and was placed under home care. On May 12, 2011, he suffered a second stroke and was confined at St. Victoria Hospital for four days.

On May 26, 2011, Ancheta filed a Sickness Notification with the SSS and was paid sickness benefits. The physician who physically examined him stated that Ancheta would be fit to resume work after ninety (90) days.

On August 13, 2011, Ancheta reported for work, Marina, however, wanted him to submit a new medical certificate before he could resume his work in Marina. Ancheta did not comply and was not able to resume his work in Marina. Ancheta filed a complaint for illegal dismissal against Marina.

Ancheta alleged that after he recovered from his illness, he reported for work in Marina but was advised by Marina to just wait for the company’s call. When Ancheta went back to Marina, he was told to take more rest. Ancheta claimed that Marina had employed two new workers as his replacement. Ancheta alleged that he was not served a notice for his termination and a subsequent notice for hearing as mandated by the Labor Code.

Marina claimed that Ancheta was employed on a piece rate basis and was not terminated but instead was refused job assignments due to his failure to submit a medical clearance showing that he was fit to resume his work.

ISSUE

Whether Marina properly terminated Ancheta in the absence of medical clearance showing that he was fit to resume his work.

RULING

NO. The employer shall not terminate his employment unless there is a certification by a competent public health authority that the disease is of nature or such a stage that it cannot be cured within a period of six months even with proper medical treatment.

The implementing Rules of the Labor Code imposes upon the employer the duty not to terminate an employee until there is a certification by a competent public health authority that the employee’s

disease is of such nature or such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment.

In this case, Marina terminated Ancheta from employment without seeking a prior certification from a competent public health authority that Ancheta’s disease is of such nature or of such stage that it cannot be cured within a period of six (6) months even with proper medical treatment. Hence, Ancheta was illegally dismissed.

BAD FAITH OF CORPORATE OFFICER MAKES HIM SOLIDARILY LIABLE WITH THE COMPANY

RAMIL R. VALENZUELA vs. ALEXANDRA MINING AND OIL VENTURES INC. and CESAR E. DETERA
G.R. No. 222419, October 5, 2016, 805 SCRA 475

FACTS: Valenzuela was hired as a company driver of Alexandra Mining on January 12, 2008, with an eight-hour work shift from 8 a.m. to 5:00 p.m. He did not just suffer to work for the company but also drove for the members of the Detera family.

On June 15, 2013, after five years and five months of service, he was prevented to report for work by Detera who told him that his service is no longer needed as there were no funds forthcoming for his salary.

Respondents alleged that Valenzuela was actually hired as a family driver of the Deteras. They alleged that the monthly salary of Valenzuela was charged to Alexandra Mining account for convenience.

ISSUE

Whether a corporate officer Detera is solidarily liable with the company for money claims of illegally dismissed corporate employee.

RULING

YES, a corporate officer is solidarily liable with the company for money claims of illegally dismissed corporate employee.

As a rule, “a corporate officer is not personally liable for the money claims of discharged corporate employees unless he acted with evident malice and bad faith in terminating their employment.”

Here, Detera’s bad faith was manifested by his persistent assertion that Valenzuela was merely a family driver in order to justify his unceremonious dismissal. He repeatedly insisted that as a family driver or member of the household service, Valenzuela may be terminated at will, which was exactly what he did.

He unreasonably sent Valenzuela home when the latter reported for work, the latter unaware of what he had done to merit such an abrupt termination. Detera’s admission on the reckless manner of Valenzuela’s dismissal justifies holding him solidarily liable with Alexandra Mining.

****GOD’S WAY IS THE BEST WAY****

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