Online Recits Compilation

JMM SAYS HI!
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
1UNIVERSITYOFSANCARLOS
[1] QUESTION
After watching a movie at the Ayala mall with my grandchildren, I saw a booth of Tele BPO Call Center
Company recruiting call center agents, preferably males, college graduate, with age range from 18 years
old to 25 years old. I took my chance and got myself interviewed. After the interview, my application
was, however, flatly rejected as I studied from an unknown school and was already 63 years old.
However, the company explained to me it is management prerogative to prescribe employment
qualifications. Kindly advise me what to do.
ANSWER:
Based on applicable laws and jurisprudence in our country, it is my legal opinion that the age
qualification prescribed by the Tele BPO Call Center Company is an invalid exercise of management
prerogative.
It is settled in our jurisprudence that management prerogative is not absolute because it is regulated by
law.
Under Section 5, paragraph 3 of Republic Act No. 10911 or known as the “Anti-Age Discrimination in
Employment Act” which was just passed recently, it is unlawful for an employer to decline any
employment application because of the individual’s age.
Under Section 6, paragraph (a) of the same law, there is an exception to such prohibition when age is a
bona fide occupational qualification reasonably necessary in the normal operation of a particular
business or where the differentiation is based on reasonable factors other than age. However, it is my
opinion that such exception is not applicable to your case because your age is not a bona fide
occupational qualification reasonably necessary in the normal operation of the Tele BPO Call Center
Company.
Moreover, the Tele BPO Call Center Company cannot also discriminate you on the ground that you
studied from an unknown school because it is not bona fide occupational qualification. [2] QUESTION
I will be hiring full time teachers to teach in the College of Commerce, starting this coming first semester
of the school year, 2017-18, as the school expects a surge in college enrollees. However, I also need to
make sure these qualified job applicants are made to undergo probation, while at the same time fixing
their employment on a semestral basis. Can you please draft a simple contract which abides with the
minimum requirements of law? ANSWER:
Based on the existing labor laws and CHED Memorandum Circular No. 40, s.2008 (Manual of Regulations
for Private Higher Education of 2008), here is a draft of a simple contract which complies with such laws
and regulations.
Probationary Employment Contract
Date: EMPLOYEE: Address: Dear Employee:

JMM SAYS HI!
We are pleased to inform you that we are engaging your services as a teacher for College of Commerce,
Cruz School of Geniuses effective this First semester for the School Year 2017-2018 with a monthly rate
of Eighteen Thousand Pesos (P 18,000). The following are the conditions of your employment with this
Company:
Probationary Period
You shall be on probation for six (6) consecutive semesters commencing on your first day of work with
Cruz School of Geniuses. During your probationary employment, you will be working with us on a trial
basis to determine your fitness for regularization. Your conversion to permanent status shall be
primarily conditioned and dependent upon your satisfactory service and performance of the work
assigned to you and it is within the exclusive discretion of Cruz School Geniuses to determine whether or
not such service is satisfactorily performed and on your having successfully passed / complied with our
established standards for regularization which include, among others, the following criteria:
dependability, trustworthiness, efficiency, initiative, attitude towards work/ the public/ the school, its
officers and co-employees, cooperation, client response, judgment, punctuality, quality/ quantity of
work, educability, articulateness and professionalism;
Termination The Cruz School of Geniuses likewise reserves its rights to terminate or not renew your
probationary employment, even prior to the expiration of your probationary period or every after
semester, for any of the just and authorized causes provided by existing law or for your having failed to
satisfactorily meet and comply with the above-mentioned standards, conditions and requirements. In
such event, you will be entitled to collect only your salary up to the end of working hours of the last day
of your actual service;
Duties You are required to comply with the all existing rules, regulations and policies of Cruz School of
Geniuses as well as those which may hereafter be issued, including but not limited to those governing
order and discipline, honesty, safety and security, work assignments and standard operating procedures,
use of school properties and access to matters of confidentiality, and such other rules deemed
necessary in the conduct of our business;
Limitations This probationary employment does not entitle you to the benefits that is or may hereafter
be granted only to regular and permanent employees, except those which the Company as a matter of
policy and upon its discretion, extends to all employees regardless of status and to those provided by
law;
Confidentiality You agree that all record and documents of the Cruz School of Geniuses and all
information pertaining to its business and/or its affairs and that of its customers are absolutely
confidential and unauthorized disclosure or reproduction of the same will not be made by you at any
time during or after your employment. You agree that any breach of confidentiality will constitute
sufficient ground for immediate termination of your employment for cause and/or civil and criminal
liability;
Resignation
JMM SAYS HI!
In case you intend to resign from the Cruz School of Geniuses, you are required to notify the Cruz School
of Geniuses at least thirty (30) days prior to the effectively of your resignation, otherwise, failure on
your part to do so will render you liable for damages. However, it is within the sole discretion of the Cruz
School of Geniuses whether or not to accept such resignation earlier than the expiration of said period.
If you agree with the above terms and conditions, please indicate your conformity by signing on the
space provided below for this purpose.
Very truly yours,
Mr. Juan dela Cruz
President
Cruz School of Geniuses
Brgy. Banilad, Cebu City
I HEREBY CERTIFY that I have read and have fully understood the foregoing terms and conditions of my
employment with the Agency and that I accept the same completely.
EMPLOYEE [3] QUESTION
I am 21 years old, single, unemployed, without any work experience, and was in third year high school
level when I stopped schooling due to the sudden demise of my parents. Last March 1, 2016, I
underwent a 10 day training with the DOLE to develop my behavior and attitude to prepare me meet
the daily challenges of life, followed by a full three (3) month technical training as a Skilled Welder with
a TESDA accredited vocational institute. Immediately after when the maritime school of one local
university opened up, I easily got an offer for another three (3) month internship which I accepted and
also successfully completed. However when I later applied for a job with a known shipping company in
Cebu, I was offered a three (3) month probationary employment as Ship Welder. Is this employment
offer lawful? Please advise.
ANSWER:
This year, we have a new law named "JobStart Philippines Act" allowing youth like you to be a
competent candidate to get hired for jobs that are in the demand in the labor market without needing
to finish formal education.
Under the law, you are a qualified to be JobStart Trainee, one who is (1) a Filipino citizen, (2) belonging
to the age bracket of 18 to 24 years of age, and (3) have at least reached high school level. As a qualified
applicant, the training entitles you to undergo the JobStart program wherein the Government will
facilitate methods for you to be fully employed.
The JobStart Training has three (3) phases, namely: (a) JobStart Life Skills Training, wherein you are given
a life skills training conducted by PESOs with technical assistance from the DOLE for a period of ten (10)
days.
(b) JobStart Technical Training, this is the period of technical training which will last for a period of up to
three (3) months.
JMM SAYS HI!
(c) Jobstart Internship, where you shall be an intern for a period of not more than three (3) months or
six hundred (600) hours.
In your case, you have successfully passed all the three (3) phases of the training.
Regarding your query on the offer for employment, if the maritime school where you undertook
internship program is a participating employer of the JobStart Training, you could be exempted to
undergo the three (3) month probationary employment should they have offered you employment. The
new law grants you this privilege.
Accordingly, the known shipping company who offered you a three (3) month probationary employment
as Ship Welder can be considered a non-participant of the JobStart Program which does not entitle you
an exemption of the probationary phase.
The offer for employment with the shipping company, as a prospective employer, gives them the
authority to test your skills and capabilities as a Ship Welder. In this probationary period of three (3)
months, your performance will be assessed whether satisfactory or not. If performance is satisfactory, it
is followed by a regular employment, if not, the employment is terminated.
FOLLOW-UP QUESTION:
Do you mean to say the technical training and the internship must be undertaken with the same
company that offered me employment?
FOLLOW-UP ANSWER:
Yes. To be exempted from the probationary period of employment, you should complete your technical
training and internship within the training plan prepared by the same participating employer.
This presupposes that the company or establishment is a participating employer of the JobStart
Program. However, there are two scenarios in your query.
First, if the technical training is offered by the same company, they have the option to skip the technical
training and transition you directly to internship stage. This internship stage shall not be more than
three (3) months or six hundred (600) hours. Accordingly, should you be hired in the same establishment
upon completion of the program, you are no longer required to undergo a probationary period.
Second, if the technical training is offered by the same company, you undergo the technical training for
a period of up to three (3) months which may also be less than three (3) months depending on the skills
and competencies that the JobStart trainee must achieve and as determined by the participating
employer. Next, if they offer you an internship, this shall be not more than three (3) months or six
hundred (600) hours. Then finally, should you be hired in the same establishment upon completion of
the program, you are no longer required to undergo a probationary period. Take note that this process
should be done by the same company or establishment who is a participating employer of the JobStart
Program.
In your case, you took the technical training as a Skilled Welder with a TESDA accredited vocational
institute and internship from a maritime school, separately. Accordingly, the latest offer you
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had was from a separate shipping company who has the right to employ you on a three (3) month
probationary period.
[4] QUESTION
I have been operating my restaurant business for the past 20 years. As I am getting already old, I have
decided to spend the rest of my life traveling abroad. Hence, last November 1, 2016, I served notice to
all my restaurant managers and employees that effective upon receipt they will no longer be required to
report to work but will be paid their one month salary in advance, and furthermore, that one month
from the same notice, their employment will be terminated as I will be closing my restaurant for good. I
also served a similar notice to the regional office of the DOLE. Did I act in accordance with law? Please
advise.
ANSWER:
Based on applicable laws and jurisprudence in our country, it is our legal opinion that your act is not in
accordance with the law particularly article 298 of the Labor Code with regard to the payment of
separation pay.
Under this article, you are obliged to give a separation pay to your employees equivalent to at least 1
month pay or ½ month pay for every year of service, whichever is higher, in case of termination due to
closure or cessation of operations of establishment or undertaking not due to serious business losses or
financial reverses.
In your case, the closure of your establishment was not due to serious business losses or financial
reverses. Hence, you are obliged to comply with the payment of separation pay. With regard to the
validity of the closure itself, it is our legal opinion that such is in accordance with the law. Under DOLE
D.O. No. 147-15, S. 2015, Section 5.4 (d), the following must be complied: 1. There must be a decision to
close or cease operation of the enterprise by the management;
2. The decision was made in good faith; and
3. There is no other option available to the employer except to close or cease operations.
You have complied with all these requisites.
With regard to your act of not allowing your employees to work after giving the notice of termination
and giving them 1-month advance salary, it is our legal opinion that it is not in violation of the law. This
is because such is favorable to the employees to have ample time to look for new employment while
enjoying the advance salary.
Lastly, with regard to the procedure for termination, your act is still in accordance with the law. DOLE
D.O. No. 147-15, S. 2015, Section 5.3 requires that there must be a service of a written notice to the
employees and the appropriate Regional Office of the DOLE at least thirty days (30) before the
effectivity of the termination, specifying the ground or grounds for termination. You have complied with
this requirement as well.
[5] QUESTION
JMM SAYS HI!
I am employed with a fast food delivery service as service and delivery crew. In one of my trips, I figured
in a vehicular accident when my motorcycle was bumped by a truck from behind while I was swerving to
my left to make a U-turn. I knew it was my fault when I swerved to my left as I was in a hurry to make a
u-turn to avoid a heavy traffic. My employer talked to me and offered me to either resign or face
administrative investigation for gross negligence. With a heavy heart, I tendered my resignation which
my employer graciously accepted immediately.
I need your advice if I have any cause of action against my employer for constructive dismissal.
ANSWER:
In the case of Vicente v. CA (2007), the Supreme Court held that in order for a resignation to be
involuntary so as to amount constructive dismissal, the resignation must be the product of coercion or
intimidation. It is incumbent upon the employee to prove that the resignation was not voluntary but was
actually a case of constructive dismissal with clear, positive, and convincing evidence.
Likewise, in the case of Gan v. Galderma Philippines, Inc. (2013), the employee must be forced,
threatened, intimidated or dictated against his will to resign in order to constitute forced resignation.
More importantly, in the case of St. Michael Academy v. NLRC (1998), it was held that the requisites for
intimidation to vitiate one’s consent are: (1) that the intimidation caused the consent to be given; (2)
that the threatened act be unjust or unlawful; (3) that the threat be real or serious, there being evident
disproportion between the evil and the resistance which all men can offer, leading to the choice of doing
the act which is forced on the person to do as the lesser evil; and (4) that it produces a well-grounded
fear from the fact that the person from whom it comes has the necessary means or ability to inflict the
threatened injury to his person or property.
In your case, it is our legal opinion that there was no vitiation of your consent in resigning. You were not
subjected to coercion, intimidation, force, threat or was dictated against your will. The fact that your
employer had offered you to either resign or face administrative investigation for gross negligence does
not amount to threat or intimidation. This is because subjecting you to an administrative investigation is
a right of the employer. It was not an unjust or unlawful act.
[6] QUESTION
A Union succeeds in negotiating with the employer a CBA which provides for substantial benefits to the
employees in the bargaining unit. Among the employees are members of a religious organization which
prohibits their members from giving contributions to union's or any other organization. Since they have
accepted the benefits of the CBA, the union demands that the employer deduct from the wages of the
members of the religious organization the appropriate agency fees. The company however refused
because the CBA did not provide for payment of agency fees. Did the company act correctly? Please
advise.
ANSWER:
Based on applicable laws and jurisprudence in our country, it is our legal opinion that company did not
act correctly in refusing to deduct the appropriate agency fees from the employees. When an employee,
who is a non-union member, accepts benefits from the Collective Bargaining Agreement, confers upon
JMM SAYS HI!
the union who negotiated the CBA the right to collect reasonable agency fees as provided by Article
248(e) of the Labor Code as originally numbered and Rule XXV, Section 4 of the Implementing Rules and
Regulations of the Labor code. Notwithstanding the absence of any provision in the CBA regarding the
payment of agency fees, it is the duty of the employer to deduct or check of this sum from the non-
union member’s wages. This is illustrated in the case of Holy Cross of Davao College, Inc. vs. Joaquin, 263
SCRA 358. In that case, the Supreme court held that the agency fee is quasi-contractual in nature. The
employee cannot unjustly enrich themselves by benefitting from the CBA without paying the necessary
agency fee.
The employees cannot hide from payment of agency fees by using the Freedom of Religion. In the first
place, they were never forced to associate themselves with the union nor there is no law that compels
non-union members to accept the benefits of the CBA which gave rise to the obligation to pay the
corresponding fees.
[7] QUESTION
One month after the expiration of the five year term of the existing CBA, some Union members of the
certified bargaining unit quit their membership and join the minority Union existing in the same
bargaining unit. As the CBA contained a maintenance of membership clause, the bargaining agent
sought the dismissal of the said members. Would this action be legally appropriate? Please advise.
ANSWER:
The bargaining agent may legally seek for the dismissal of the union members who quit their
membership and subsequently joined to the minority Union.
The Labor Code recognizes a Union Security Clause as a valid stipulation of a bargaining agent. The type
of Union Security involved in the case is the Maintenance of Membership Clause which provides that no
employee is compelled to join the union but all present or future members must as a condition of
employment remain in good standing in the union. Although the Collective Bargaining Agreement (CBA)
had already expired when the union members quit their membership to the bargaining agent, their
dismissal may still be validly sought. The law mandates an Automatic Renewal Clause deemed
incorporated in all CBAs pending the renewal of a CBA. In such case, the parties are bound to keep the
status quo and to treat the terms and conditions embodied therein with full force and effect during the
sixty (60) day freedom period and/or until a new agreement is negotiated and finally concluded or
reached by the parties.
In the case at hand, the Union Security Clause must continue to be in effect even after the expiration of
the CBA. This is to prevent a gap during an absence of a governing agreement from the time the old
agreement expired to the time of a new agreement is concluded.
Hence, all members of a bargaining agent are not allowed to quit or terminate their membership. Any
member of the bargaining agent who resigns or is expelled may be recommended by the bargaining
agent to the employer for a termination of his employment. An enforcement of a Union Security Clause
is a valid cause for termination. It constitutes a dismissal from employment due to the enforcement of
JMM SAYS HI!
the Collective Bargaining Agreement. Dismissal effected by the employer pursuant to the Labor Union’s
demand in accordance with the Union Security agreement does not constitute unfair labor practice.
Nonetheless, in order for the employer to avoid incurring any liability from acceding to the
recommendation of the Labor Union, we advise that before these employees be terminated by invoking
the Maintenance of Membership clause, the following requisites must be present:
1. The union security clause is applicable;
2. The bargaining union is requesting for the termination of employment due to enforcement of the
union security provision in the CBA; and
3. There is sufficient evidence to support the union's decision to expel the employee from the union.
Furthermore, the employer should afford due process to the said employees by affording an
independent and separate hearing.
[8] QUESTION
Walde Rank-and-file Union entered into a CBA with USC School effective from January 1, 2005 to
December 31, 2010. This CBA was duly registered.
On February 25, 2010, the Walde Rank-and-file Union signed another CBA with management effective
from January 1, 2011 to December 31, 2016.
On November 15, 2010, Torregosa Rank-and-file Union, a minority Union in the same bargaining unit
filed a petition for certification election.
If you were the Med-Arbiter, will you grant the petition?
ANSWER:
If we were the Med-Arbiter, we would grant the petition for certification election filed by Torregosa
Rank-and-File Union.
Article 268 of the Labor Code, as renumbered, governs representation issues in an organized
establishment. Under this article, a petition for certification election may be filed by any legitimate labor
organization with the Bureau of Labor Relations, in this case, with the Med-Arbiter, within the 60-day
period before the expiration of the CBA.
Moreover, under D.O. No. 43-03, Rule VIII, Section 14, the 60-day period based on the original collective
bargaining agreement shall not be affected by the amendment, extension, or renewal of the collective
bargaining agreement. Further, under Section 25 of the same rule states that the representation case
shall not be adversely affected by a collective bargaining agreement registered before or during the last
60 days of a subsisting agreement or during the pendency of the representation case.
In this case, the 60-day freedom period to file is from November 2, 2010 to December 31, 2010 (the
expiry of the original CBA). Torregosa Rank-and-File Union filed its petition on November 15, 2010, thus,
the said petition was filed well within the 60-day freedom period.
The subsequent CBA to be effective on January 1, 2011 to

JMM SAYS HI!
December 31, 2016 entered by Walde Rank-and-File Union and the Management is immaterial.
Torregosa Rank-and-File Union's petition for certification is not affected by a subsequent collective
bargaining agreement executed by Walde Rank-and-File Union and the Management as provided under
D.O. No. 43-03, Rule VIII, Section 14 and 25 as stated above.
Therefore, the petition for certification election by Torregosa Rank-and-File Union should be granted
provided that they had fully complied with all the requisites for a valid certification election under
Article 268 of the Labor Code, as renumbered, and Rule VIII, Book V of the implementing rules
notwithstanding the fact of the alleged signing of a new CBA by Walde Rank-and-File Union and the
Management.
[9] QUESTION
After several weeks of bargaining negotiations, the certified bargaining Union was constrained to accept
a stipulation that in exchange for a yearly wage increase, it would waive full payment of overtime
compensation and accept no more than 5% premium for overtime work. If you were another legitimate
labor union existing in the same bargaining unit, what legal action may you take against the certified
bargaining Union for agreeing to such a CBA stipulation.
ANSWER:
As held in the case of Benson Industries Employees Union v. Benson Industries Inc., G.R. No. 200746,
August 6, 2014, the parties in a CBA, as in all contracts, may establish such stipulations, clauses, terms
and conditions as they may deem convenient provided these are not contrary to law, morals, good
customs, public order or public policy.
In your case, the CBA entered by the certified bargaining union is invalid because such is contrary to law,
particularly the Labor Code, for waiving full payment of overtime compensation and accept no more
than 5% premium for overtime work.
Pursuant to D.O. 40-F-03, dated October 30, 2008, a petition for cancellation of registration of a union
on the ground that the certified bargaining union entered into a CBA which provides for terms and
conditions of employment below minimum standards established by law, is no longer applicable. The
said Department Order of the DOLE now limits the grounds for cancellation of registration to three (3).
Hence, the other legitimate labor union cannot file a petition for cancellation of registration of the
certified bargaining union. However, it is my legal opinion that the remedy of the other legitimate labor
union is to file an inter-union dispute complaint pursuant to D.O. No. 40-03 before the Regional Office
that issued its certificate of registration and question the appropriateness of the act of the certified
bargaining union as well as the validity of the CBA as being contrary to law and prejudicial to their
interests. Aside of its apparent illegality, it is also worthy to take note of the fact that the certified
bargaining union was just “constrained” to accept such stipulation.
[10] QUESTION
JMM SAYS HI!
Our company is engaged in the assembly and distribution of motor spare parts for vehicles. Sometime in
May of 2015, we employed Juan as a production trainee under probation. As per policy, the
probationary period was from 3 months to a maximum of 6 months. Juan was given orientation on May
15, 2015 about company's history, philosophy including company standards for regularization. Juan
started working on May 27, 2015, and was assigned at the machine parts conveyors. After an evaluation,
management found the performance of Juan unsatisfactory. Hence, the company served Juan on
November 26, 2015 a notice of termination dated November 25, 2015 effective on said date of service,
since he failed to meet the required company standards for regularization. Did our company act in
accordance with law, and if not, what is our liability, if any?
ANSWER:
To shed light regarding your concern, your company did not act in accordance with the law. Juan, your
production trainee, was illegally dismissed since he started working in your company on May 27, 2015,
thus, by that time that you terminated him on November 26, 2015, he no longer was a probationary
employee but was already a regular employee by operation of law since Article 296 of the Labor Code
provides that probationary employees shall not exceed 6 months from the date the employee started
working and in computing the 6 month probationary period, the Supreme Court explained in the case of
Mitsubishi Motors vs. Chrysler Phil. Labor Union, that it would be 180 days from the date the employee
started to work.
Moreover, Article 294 of the Labor Code of the Philippines provides that: in cases of regular
employment, the employer shall not terminate the services of an employee except for a just cause or
when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and to his backwages computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.
Gleaning from the abovementioned law, and as stated earlier, Juan was illegally dismissed and is
entitled to reinstatement without loss of seniority rights and backwages.
FOLLOW-UP QUESTION:
Was there no just cause to terminate the employment? And the award of backwages, until when will it
be computed?
FOLLOW-UP ANSWER:
In clarifying your first question, there was no just cause in terminating the employment of Juan. As
enunciated by the Supreme Court in the case of Mitsubishi Motors vs. Chrysler Phil. Labor Union, “Under
Article 282 of the Labor Code, an unsatisfactory rating can be a just cause for dismissal only if it amounts
to gross and habitual neglect of duties. Gross negligence has been defined to be the want or absence of
even slight care or diligence as to amount to a reckless disregard of the safety of person or property. It
evinces a thoughtless disregard of consequences without exerting any effort to avoid them.” It is a
settled doctrine that the employer has the burden of proving the lawfulness of his employee’s dismissal.
The validity of the charge must be clearly established in a manner consistent with due process.
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In your case, there was no clear showing that there was gross and habitual neglect of duties on the part
of your employee. The basis for which you terminated Juan’s employment was his alleged unsatisfactory
rating for failure to meet the required company standards for regularization, which he was informed of
only on November 26, 2015 when he was already considered as a regular employee.
As to your query on the award of backwages, it shall be computed from the time of Juan’s dismissal up
to the time of his actual reinstatement, pursuant to Article 294 of the Labor Code.
[11] QUESTION
Our company is a beef cannery, where majority of our workers are doing packing and casing up of beef
meat which are exported to China. We foresee a substantial reduction of volume of orders from China
beginning on January 1, 2016.
I need you to draft for our company the prescribed notices to validly implement a suspension of
operations, and furthermore, to advise us on the step by step procedure. Kindly ensure I am compliant
with law and will not incur any liability.
ANSWER:
December 15, 2015
DOLE Regional Office
Cebu City
Dear Ma’am/Sir,
This letter is in compliance of the mandatory 30-day prior notice, as provided in the Amended Rules to
implement the Labor Code, before retrenching majority of our employees effective on January 15,
2016.The retrenchment is due to a substantial reduction of volume of orders from China beginning
January 1, 2016. We are aware that we cannot temporarily retrench our affected employees as of
January 1, 2016, hence, the suspension of operation will only commence on January 15, 2016. The said
suspension of operation will not exceed 6 months. Respectfully,
JMMarquez
President
Beefy Meat Company
December 15, 2015
Residence of Employee 1
Cebu City/ Mandaue City
Dear Employee 1,
JMM SAYS HI!
We would like to inform you that we are suspending some of our operations due to substantial
reduction of volume of orders from China. Due to the suspension, it is inevitable that some of the
employees would be temporarily be retrenched. Unfortunately, you are one of those employees. The
suspension of operation will be effective on January 15, 2015.
We will immediately inform you if the operations have already resumed.
Respectfully,
JMMarquez
President Beefy Meat Company
[12] QUESTION
I am employed as an agent in a call center company in Cebu City, whose principal client is AT&T, a
telecommunication company based in U.S. AT&T pays our company depending on the number of
employees assigned to AT&T's account and the volume of calls needed. I have been with the company
for one month already. As agent, I am required to be physically available at the office in order to service
the continuous inflow of customer queries. I usually start my shift by logging on to my computer and
wait for the customers to call in with their queries. Yesterday, I was notified by my Team Leader that the
volume of calls required by AT&T is expected to decrease due to the Christmas holidays in the U.S. and
thus, I am one of those whose employment will be terminated by our Company effective December 24,
2015.
I need your legal advice on what are my rights in case I am served a notice of dismissal anytime from
now. ANSWER: As a project employee, you enjoy security of tenure during the duration of the project.
This means that you may not be lawfully terminated for no just or authorized causes. To clarify, basing
on the facts of your case, your dismissal does not fall under any of the Just and Authorized causes
provided by the Labor Code. Under the Labor Code, Just Causes for termination of employment are as
follows: 1. Serious misconduct 2. Willful disobedience 3. Gross and habitual neglect of duty 4. Fraud or
breach of trust 5. Commission of crime or offense against employer, his family, or representative 6.
Other analogous causes Furthermore, Authorized Causes for termination of employment under the
Labor Code are as follows: 1. Installation of labor-saving device 2. Redundancy 3. Retrenchment to
prevent losses 4. Closure and cessation of business 5. Disease / illness Terminating your employment
within the duration of the project without a just or authorized cause tantamount to an illegal dismissal.
If you will be served with a notice of dismissal anytime from now, your rights are as follows: 1.
Reinstatement without loss of seniority rights 2. In lieu of reinstatement, you may also be given
separation pay of one month pay for every one year of service 3. Back wages from time compensation
was withheld up to the time of reinstatement 4. Damages for non-compliance of the company of due
process in relation to your dismissal Based on the facts of your case, there has been a violation of due
process. Procedurally, if the dismissal is based on a just cause, the employer must give the employee
two written notices and a hearing or opportunity to be heard before terminating employment; that is, a
notice specifying the grounds for which dismissal is sought and, after hearing or opportunity to be
heard, a notice of the decision to dismiss. If the dismissal is based on
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authorized causes, the employer must give the employee and the DOLE written notices 30 days prior to
the effect of resignation. The grounds must be specified in the notice of dismissal; and if it is for Just or
Authorized causes, the above mentioned procedure must be followed. Since these were not complied
with by the company, a violation of due process has been committed and you may seek damages for
such. [13] QUESTION
I am the President of a call center in Cebu City which caters to the needs of clients operating in various
time zones. All our clients are located in USA, which observes federally mandated holidays that are
different from those in the Philippines. It is customary within the BPO industry to follow the holidays of
the specific country in which the service recipient is domiciled. All my agents have been employed for
more than one year.
We received notice yesterday from our clients that for two (2) weeks effective on Monday, December
22, they will be temporarily closed and would not need our services. I need legal advice and guidance on
what to do with my agents during the two (2) weeks furlough.
ANSWER:
I apologize for the previous advice I gave you that would expose your company to liability. I failed to
take into account that temporary lay-off or suspension of operations, which is in the nature of
retrenchment to prevent losses, is considered as a measure of last resort. Before resorting to the drastic
measure of retrenchment, employers must first employ cost-cutting measures to prevent possible losses
due to causes beyond their control. These cost-cutting measures are provided for under the Guidelines
on the Adoption of Flexible Work Arrangements (DOLE Department Advisory No. 2, s. 2009). From the
cost-cutting measures enumerated in the guidelines, the one that is applicable in your situation is
placing your employees on forced leave during the two-week period that your company would have no
clients. Forced leave refers to one where the employees are required to go on leave for several days or
week utilizing their leave credits.
Further, it is a requirement that the enumerated cost-cutting measures must only be temporary in
nature and the employer needs to prove that it is expected to incur losses if such measures are not
resorted to. In your case, the forced leaved would only be employed to in a period of two-weeks, so it
complies with the requirement of temporary nature. Moreover, if you do not resort to this cost-cutting
measure during the two-week period where your company would have no clients, it is possible that you
would incur losses.
But before placing your employees on forced leave, you should first notify the Department of Labor and
Employment (DOLE) through its Regional Office in Cebu City of the adoption of such cost-cutting
measure, using the Report Form as provided by DOLE.
[14] QUESTION
My company is engaged in mining operations. Sometime in May of 2015, I was offered employment as
Manager for Finance under a six month period of probation. As a condition for my employment, I was
required to submit clearance from my previous employer. I actually started working on July 1, 2015. Last
December 25, I was served a notice that effective close of office hours on January 10, I was dismissed
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from my employment for failure to qualify as a regular and permanent employee as I did not submit the
previous employment clearance.
Do I have any valid cause of action against my company for illegal dismissal?
ANSWER:
Allow me to clarify my previous advice. As I go through again the details of your case, in my humble
opinion sir, the employee was still a probationary at the time he was dismissed. To clarify, your
employee started working on July 1, 2015 and the notice of dismissal was served on December 25 of the
same year. And so if we apply the Civil Code in counting the probationary period, the six months
probationary consists of one hundred eighty (180) days and in computing the period, the first day should
be excluded and the last day should be included. Thus, the one hundred eighty (180) days commenced
on July 2, 2015 and ended on December 27, 2015. Therefore, at the time the notice of dismissal was
served on December 25, 2015, the employee was still then a probationary employee under the Labor
Code.
And the Labor Code provides that probationary employees may only be terminated from just cause,
authorized cause or failure to meet the standards. And in failure of an employee to meet the standards
of the employer in the case of probationary employment, it shall be sufficient that a written notice of
termination is served to the employee within a reasonable time from the effective date of termination.
Therefore sir, you do not have any cause of action against your company. The termination made by
them was valid and at the same time, the notice served was in accordance with the law.
[15] QUESTION
Our company is engaged in a fast food restaurant business. We offer fast food delivery service and
employ service and delivery crew. In one of his trips, Miguel a delivery crew, figured in a vehicular
accident when his motorcycle bumped a young girl who was crossing the street causing bodily injury.
Because of the accident, Miguel was charged criminally for reckless imprudence resulting to physical
injuries. He was detained in jail. After eight months, Miguel came to the office to report to work, and
submitted to us a judgment of acquittal rendered by the Municipal Trial Court in his criminal case. Can
we request your legal advice on how we will deal with Miguel administratively?
ANSWER:
To clarify your question on how Miguel should be administratively dealt with upon his return to work,
you may initiate disciplinary action against him for his gross negligence and inefficiency in the
performance of his duties. The charge against him can be attributed to his reckless driving resulting to
injury to a pedestrian. As delivery crew, it is in the nature of his job that he exercises utmost diligence
and care in performing his duty to deliver the goods to its destination safely. However, considering that
this is his first offense and the facts of the case does not state that he has previously violated any of the
company rules and regulations which is detrimental to the interest of your company, the disciplinary
action may not
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necessarily be dismissal, but may either be in the form of a warning, reprimand, or suspension,
depending on what penalty is prescribed for such offense under your company rules and regulations.
Such penalty is for the purpose of disciplining Miguel so that he will exercise the diligence required of
him and he will be more careful the next time he performs his duties as delivery crew. Moreover, before
imposing such disciplinary action, Miguel should still be afforded due process as required by law,
wherein he shall be allowed to show cause why no disciplinary action shall be meted against him for his
wrongful conduct.
[16] QUESTION
Reaching a deadlock in the collective bargaining with management, the Union filed a notice of strike on
July 1, 2015. In a meeting on July 5, 2015, the Union membership overwhelmingly voted to declare a
strike. The Union furnished the NCMB the results of the strike vote on July 7, 2015. On July 22, 2015, the
Union went on strike.
What action may be taken by management on the Union's strike as there was no vote taken yet when
the Union filed the notice of strike?
ANSWER:
Let me clarify first: actually, under the law, the taking of votes does not precede the filing of notice to
strike, the law requires that a filing of notice to strike be first made and the voting would come
subsequent to that, specifically after the cooling off period.
In your case, gleaning from the stated facts, it would seem that although the strike was based on a legal
ground, the Union failed to comply with the procedural requirements provided for under Art. 277 of the
Labor Code. The requirements for a legal strike are as follows: filing of notice of strike, observance of the
cooling-off period, taking of strike vote, and observance of the seven-day strike-vote-report period.
For failure to comply with the procedural requirements, the strike is deemed illegal, thereby the
management may file the proper petition to the appropriate Arbitration Branch of the NLRC to seek a
declaration of the illegality of the strike of lockout subject to the provision of Article 263(g). Once
declared illegal, the management may be authorized to terminate the employment of union officials
who knowingly participated in the illegal strike and any worker or union officer who knowingly
participated in the commission of illegal acts during the strike.
[17] QUESTION
While in the course of negotiations for a collective bargaining agreement, the employer refuses a Union
demand for a closed-shop stipulation. Can the Union charged management with unfair labor practice? If
not, what legal action may it take on the matter? Please advise.
ANSWER:
The general rule is that employees are free to join or not to join an association. Therefore, they have the
freedom of association and the negative freedom of association which is the right not to join an
organization. However, this right is not absolute since our law allows an agreement between employer
and union to require membership in a union for purpose of continued employment.
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In this case, the union may declare a bargaining deadlock for failure to resolve the issue and they may
refer this to a conciliator or a voluntary arbitrator to be able to continue the bargaining and put each
parties back to the negotiating table and help them craft a win-win solution.
I hope that I was able to help in clarifying your concern. Should you have further queries, please don't
hesitate to contact me.
[18] QUESTION
A CBA was concluded between Union "A" and management. This CBA was not however registered with
the BLR/DOLE. Aware of his deficiency, Union "B", the minority Union filed a petition for certification
election, which was granted by the Med-Arbiter. In the ensuing election, Union "B" won, and was
certified as the sole and exclusive bargaining agent. However, when Union "B" demanded from
management for the negotiation of a new CBA, the latter refused because of the existing CBA it had
concluded with Union "A".
Did management act legally? Please advise.
ANSWER:
As regards to your question:
Yes, the management acted legally.
The Labor Code of the Philippines provides that a Collective Bargaining Agreement must be registered
with the Bureau of Labor Relations pursuant to Article 231, as follows: "Art. 231. Registry of unions and
file of collective agreements.
xx
"It shall also maintain a file of all collective agreements and other related agreements and records of
settlements of labor disputes, and copies of all orders and decisions of voluntary arbitrators. The file
shall be open and accessible to interested parties under conditions prescribed by the Minister of Labor
and Employment, provided that no specific information submitted in confidence shall be disclosed
unless authorized by the Minister, or when it is at issue in any judicial litigation or when public interest
or national security so requires.
"Parties shall submit copies of their collective agreement to the Bureau through the regional offices.
Such agreements shall be accompanied with a verified proof of ratification by the majority of all the
workers in the bargaining unit.
Xxx Moreover, it is also provided by the Labor Code that the effect of said registration is that no
certification election issue shall be entertained by the employer, as follows:
Art. 257
xxx No certification election issue shall be entertained if a collective agreement which has been
submitted in accordance with Article 231 of this Code exists between the employer and a legitimate
labor organization except within sixty (60) days prior to the expiration of the life of such collective
agreement."
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However, in the instant case, the CBA concluded between Union A and management was not registered
with the BLR/DOLE, thus,
contract bar rule does not apply, meaning, the certification election filed by Union B and subsequently
granted by the Med-Arbiter was valid. Having been certified as the sole and exclusive bargaining agent,
the law directs that Union B must be the one to enter into a collective bargaining agreement with the
Company, pursuant to Article 263 of the Labor Code. It is a duty of the employer and even refusal to do
so would constitute unfair labor practice. This right to bargain collectively only belongs to certified
bargaining unit which in this case is Union B.
However, nevertheless, the existing CBA agreement made by Union A and The Company cannot be
assailed and must be respected until its expiration. This is pursuant to the Substitutionary Doctrine
which provides that "employees cannot revoke the validly executed collective bargaining contract with
their employer by the simple expedient of changing their bargaining agent. The new agent must respect
the contract. The employees, thru their new bargaining agent, cannot renege on the collective
bargaining contract, except to negotiate with management for the shortening thereof."
[19] QUESTION
Our company is engaged in deep sea fishing, and we employed Juan for the past two (2) years to unload
the fish catch from our vessels into third parties refrigerated vans for delivery to various public markets.
His work was however intermittent, depending on the arrival of our fishing vessels. There were times
when Juan would work on vessels belonging to other fishing companies. Last quarter of this year, we
notified Juan of the cessation of his employment with us as it was the low season in fish catching. Did
our company act in accordance with law?
ANSWER:
Based on the facts you provided, it is our opinion that the act of notifying Mr. Juan of the cessation of
his employment with your company is not in accordance with the law.
Mr. Juan is a regular employee. Though his work is intermittent, he cannot be considered as a seasonal
employee. According to jurisprudence, the activity of catching fish is a continuous process and could
hardly be considered as seasonal in nature. Furthermore, he has worked with you for two years already,
continuous or broken, making him a regular employee.
Since he is a regular employee, he cannot be terminated without just or authorized cause. Low season in
fish catching is not one of the just or authorized causes enumerated in the Labor Code.
[20] QUESTION
After several sessions, the company and the certified bargaining Union's respective negotiating panels
entered into a deadlock as regards the economic provisions of the CBA.
During their lunch break, the members of the Union started to picket the ingress to and egress from the
company's premises, which blocked the office of another company which is beside the premises.
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If you were the counsel of the other company, what is your remedy against the Union?
ANSWER:
The remedy available to you is to file for injunction. Third parties cannot be disrupted by a labor dispute
of another company, foreign to the interest of your own, and they have a right to file for injunction.
While peaceful picketing is entitled to protection as an exercise of free speech, the courts are
empowered to confine or localize the sphere of communications or the demonstration to the parties to
the labor dispute. The court may insulate establishments or persons with no industrial connection or
having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the
instance of third persons or innocent bystanders if it appears that the inevitable result of it is to create
an impression that a labor dispute with which they have no connection or interest exists between them
and the picketing union or constitute an invasion of their rights. It was discussed in the case of Liwayway
Publications, Inc. v. Permanent Concrete Workers Union, that picketing labor union has no right to
prevent employees of another company from getting in and out of its rented premises, otherwise, it will
be held liable for damages for its acts against an innocent by-stander. In the case of MSF Tire and
Rubber, Inc., vs CA., it was discussed that, an "innocent bystander," who seeks to enjoin a labor strike,
must satisfy the court that aside from the grounds specified in Rule 58 of the Rules of Court, it is entirely
different from, without any connection whatsoever to, either party to the dispute and, therefore, its
interests are totally foreign to the context thereof.
Considering that there are two companies affected by the act of picketing by the members of the
Unions, and there’s no connection as to the relation of the two companies affected by the picketing of
the member of the Unions, the proper remedy left to the prejudiced innocent bystanders is to file for
injunction.
[21] QUESTION
After several weeks of bargaining negotiations, the certified bargaining Union was constrained to accept
a stipulation that in exchange for a yearly wage increase, it would waive full payment of overtime
compensation and accept no more than 5% premium for overtime work.
If you were a member of the bargaining unit, can you assail the legality of the CBA stipulation which is
clearly illegal, unconscionable and grossly disadvantageous to the members of the bargaining unit? If
yes, how?
ANSWER:
Yes, as a member of the bargaining unit, you can assail the legality of the CBA.
First of all, it is important to take note that according to the Labor Code, one of the labor standard
benefits is the payment of overtime pay. This means that every employee is entitled to payment of
overtime pay. According to the law, “Work may be performed beyond eight (8) hours a day provided
that the employee is paid for the overtime work an additional compensation equivalent to his regular
wage plus at least 25% thereof. Work performed beyond eight hours on a holiday or rest day shall be
paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day
plus at least 30% thereof.” According the case of Patricia Halaguea et.al. vs. Phil. Airlines Inc. G.R.
172013, "if the provisions of the CBA is contrary
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10 U N I V E R S I T Y O F S A N C A R L O S
to law, public morals or public policy, such provisions may very well be voided."
This means that the stipulation of the CBA, which the certified bargaining union was constrained to
accept, is in violation of the Labor Code.
To assail its legality as a member of the bargaining unit, your signature is needed for its enforcement.
And since the stipulation is illegal, you can opt not to sign the CBA for ratification purposes. If majority of
the members also assailed the said stipulation, and withheld their signatures, then the CBA cannot be
enforced. You may also raise your concern to the RTC because of the unconstitutionality of the
provision. According to the case of Patricia Halaguea et.al. vs. Phil. Airlines Inc. G.R. 172013, “the RTC
has power to decide issues of constitutionality or legality of the CBA. As the issue involved is
constitutional in character, the labor arbiter or the NLRC has no jurisdiction over the case.”
[22] QUESTION
A newly formed labor Union which was certified to represent the majority of the rank-and-file workers
of a BPO company presented a list of demands to the management for collective bargaining
negotiations. The company declined to talk to the Union leaders. The Union felt offended and during
their lunch break, march to and from the company premises, wearing black arm bands.
What action can you advise management to stop the Union from these concerted activities?
ANSWER:
First of all, it is important to take note that the Constitution guarantees the right of workers to peaceful
concerted activities, including the right to strike in accordance with law.
Strike, as defined by the Labor Code, means any temporary stoppage of work by the concerted action of
employees as a result of an industrial or labor dispute. In your case, the employees performed such
concerted activities during their lunch break. This means that no stoppage of work occurred. Therefore,
the actions of the employees did not constitute a strike. Their actions were in exercise of their right to
peaceful concerted activities; as well as an exercise of their freedom of speech.
As supported by Jurisprudence, in the case of Elizabeth C. Bascon vs. Honorable Court of Appeals, G.R.
144899, “The court of appeals found that petitioner’s actual participation in the illegal strike was limited
to wearing armbands and putting up placards. There was no finding that the armbands or the placards
contained offensive words or symbols. Thus, neither such wearing of armbands nor said of putting up of
placards can be construed as an illegal act. In fact, per se, they are within the mantle of constitutional
protection under freedom of speech.”
As your good counsel, it is my advice to talk with and listen to the demands of the Union. It is highly
recommendable for the management to negotiate the matters written in their proposed collective
bargaining agreement of the Union. According to Article 259 of the Labor Code, it is an unfair labor
practice of an employer to violate the duty to bargain collectively as prescribed by the Code. The terms
and conditions of the collective bargaining agreement must be negotiated by both parties to avoid
further damage before the Union can file a case of Unfair Labor Practice against the management.
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[23] QUESTION
I am employed with a fast food delivery service as service and delivery crew. Last week, I decided to
tender my resignation effective immediately when my request for parental leave was not acted upon by
my employer in spite of my lawful entitlement thereto. My employer however refused to accept my
resignation since I failed to comply with the one month notice period. I was even served by my employer
a notice to report to work until full compliance with the one month notice period. I would like your legal
advice on whether my employer is acting in accordance with law as I need to report to work to my new
employer this week.
ANSWER:
Yes, your employer acted in accordance with the law when he refused to accept your resignation before
the lapse of one month.
Under the Labor Code, an employee can terminate the employer-employee relationship by serving a
written notice on the employer at least one month in advance. In your case you tendered your
resignation effective immediately, which is a clear violation of the Labor Code and could make you liable
for damages.
There is an exception to this one-month notice rule and that is termination by the employee for just
cause which include: serious insult by the employer or his representative on the honor and person of the
employee, inhuman and unbearable treatment accorded the employee by the employer or his
representative, commission of a crime or offense by the employer or his representative against the
person of the employee or any of the immediate members of his family and other analogous causes to
any of the foregoing. However in your case, your employer's failure to allow your parental leave does
not constitute any of the above exceptions which would have entitled you to severe your employment
without just cause. Therefore, your employer acted in accordance with the law when he refused, for the
time being, to accept your resignation as it was tendered without notice.
[24] QUESTION
Our company is engaged in a fast food restaurant business. We offer fast food delivery service and
employ service and delivery crew. As it is critical to the nature of our business that our workers are free
from drug use or abuse, we adopted a policy, which requires our workers to undergo random drug tests.
Two of our crew objected to the policy, contending that it would violate their right against self-
incrimination which is protected by the Constitution.
If these crew were to question the policy, which has jurisdiction, and why? And finally, is there legal
basis for the worker's claim? Please advise
ANSWER:
First of all I would like to apologize for any confusion i have caused in answering your queries. I would
like to retract my answer to your initial question with regards to who has jurisdiction supposing the crew
members would question the company policy of a random drug test, stating that it is a violation of their
Constitutional right against self-incrimination.
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Taking into consideration the facts of the case as well as conducting further research, if the crew
members were to question the constitutionality of their company policy, as it infringes their right to self
incrimination which is a right granted by the Constitution, the power to interpret such issue is lodged
under the jurisdiction of the regular courts.
Citing the case of Halagueña et. al v. PAL where the primary issue was whether provision of compulsory
retirement in their CBA unconstitutional and unlawful, which allegedly discriminates against female
flight attendants. The aggrieved party challenged the constitutionality of the said provision. It was
decided by the Supreme Court that the subject of litigation is incapable of pecuniary estimation,
exclusively cognizable by the RTC. Being an ordinary civil action, the same is beyond the jurisdiction of
labor tribunals. It was also stated in the same case that the said issue cannot be resolved solely by
applying the Labor Code. Rather, it requires the application of the Constitution, labor statutes, law on
contracts and the Convention on the Elimination of All Forms of Discrimination Against Women, and the
power to apply and interpret the constitution and CEDAW is within the jurisdiction of trial courts, a
court of general jurisdiction.
In the case of Georg Grotjahn GMBH & Co. v. Isnani, this Court held that not every dispute between an
employer and employee involves matters that only labor arbiters and the NLRC can resolve in the
exercise of their adjudicatory or quasi-judicial powers. The jurisdiction of labor arbiters and the NLRC
under Article 244of the Labor Code is limited to disputes arising from an employer-employee
relationship which can only be resolved by reference to the Labor Code, other labor statutes, or their
collective bargaining agreement.
Hence, where the principal relief sought is to be resolved not by reference to the Labor Code or other
labor relations statute or a collective bargaining agreement but by the general civil law, the jurisdiction
over the dispute belongs to the regular courts of justice and not to the labor arbiter and the NLRC. In
such situations, resolution of the dispute requires expertise, not in labor management relations or in
wage structures and other terms and conditions of employment, but rather in the application of the
general civil law.
[25] QUESTION
I am a Marketing & Sales Liaison Manager of a beef cannery, who was hired by the company for a fixed
period of 5 months, starting June 1, 2015 to handle and manage the shipment of canned beef meat to
China, in view of the high volume of demand in that country for the period covered. On October 15,
2015, I was notified by the company that the latest shipment I made were canceled by our client in
China when they found the canned beef meat damaged and thus, unable to pass quality control. In that
same notice, I was informed that my services were no longer needed due to the expiration of my
contract. I need a legal advice if I have any cause of action, and relief against my employer.
ANSWER:
With regard to your question, you are not a regular employee. A fixed term employee is not a regular
employee. The nature of a fixed term employee's job is not always regular in nature. There are however
two qualifications that may consider a fixed term employee as a regular employee. With that, a fixed
term employee only becomes a regular in such a way that 1) the nature of his work is necessary or
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desirable in the principal business of the employer; and 2) he enjoys security of tenure during the
limited time of employment as before the end of agreed period. That is the only way that makes a fixed
term employee regular, but not a permanent regular. And such regularity is only limited as to the agreed
period by the parties.
[26] QUESTION
I am one of the workers in a large sugar cane plantation company, doing watering and weeding which is
one of the several phases of agricultural work. Every October until December of the year for the past
five years, I was made to perform the same tasks, getting paid the minimum wage rate for agricultural
workers. For the rest of the months of each of those years, I was free to work for other farm owners.
Since October of this year, I have been waiting to be called to work. Its already December but no work is
forthcoming. I need to consult you what remedy do I have, if any, against the sugar cane plantation
company. Please advise.
ANSWER:
We are writing in reply to your inquiry regarding the status of your work at the sugar cane plantation
company.
First of all, you are classified as a seasonal employee. Seasonal employment is one where work or
service to be performed is seasonal in nature and the employment is for the duration of the season. The
following are what you need to know regarding a seasonal undertaking:
1. It is dependent on climatic or natural causes – which means its operations must be limited to a
regular, annual, or recurring part or parts of each year and regularly closes during the remainder of the
year due to climatic or other natural causes;
2. The activity must be agricultural.
In your case, you have been employed from October to December for the past five yours, performing
agricultural work namely watering and weeding. These facts make you a seasonal employee. Since you
have been rehired continuously without interval season after season for the past five years, you are
considered as a regular seasonal worker. You enjoy security of tenure within the duration of the season.
This means that the employer must continue to rehire you season after season; and cannot terminate
you without just cause as provided in the Labor Code of the Philippines.
Since you enjoy security of tenure within the duration of the season, you may demand for reinstatement
so as to put you back to your previous position in the sugar cane plantation. Please take note that you
may only demand to be rehired for the duration of the season because as we have emphasized, you are
a seasonal regular worker. In case your employer refuses to grant your request for reinstatement, you
may file an action for illegal dismissal against the sugar cane plantation.
[27] QUESTION
The CBA negotiated by Walde rank-and-file Union provides for a P50 daily wage increase for employees
in the production and maintenance department which constituted the bargaining unit.
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To avoid charges of discrimination, the company also granted the same increase to employees in the
administrative and sales department. Walde Union now demands that agency fee be deducted from the
wages of the employees in the administrative and sales department. Is such demand valid?
ANSWER:
The collection of agency fees from employees who are not union members is recognized under the law,
specifically under Art. 259 of the Labor Code. To quote the express provision under the law, it states
that:
“Employees of an appropriate bargaining unit who are not members of the recognized collective
bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by
members of the recognized collective bargaining agent, if such non-union members accept the benefits
under the collective bargaining agreement: Provided, that the individual authorization required under
Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective
bargaining agent;”
However, this provision should be read in light with Rule 25, Sec. 4 of the Implementing Rules and
Regulations.
Rule XXV, Section 4. Check off from non members – Pursuant to Article 248 (e) of the Code, the
employer shall check off from non-union members within a collective bargaining unit the same
reasonable fee equivalent to the dues and other fees normally paid by union members without the need
for individual check off authorizations.
Based on the foregoing, the right to check-off from non-members is only applicable when they belong to
the same bargaining unit. Since the administrative and sales department employees do not belong to
the same bargaining unit as that of the production and maintenance department employees, the
collection of agency fees from the wages of employees in the administrative and sales department is not
valid.
[28] QUESTION
Our company is engaged in a fast food restaurant business. It has an existing drug free workplace policy.
Due to the serious campaign of the Duterte administration against drugs, two of our service crew were
apprehended by the local police authorities and detained for alleged use of prohibited drugs. As these
crew were unable to report to work, we served to them a notice to explain why they should not be
dismissed for abandonment of work. As they did not explain, we then served them a notice of
termination. One (1) month after, the subject crew reported to work as they were able to successfully
secure from the City Prosecutor the dismissal of the criminal cases against them for insufficiency of
evidence. Are we obliged to admit them back to work? And if we do not, what is our liability if any?
Please advise. ANSWER:
This is in reply to your query regarding the dismissal of your two service crew due to their abandonment
of their work due to their alleged commission of a crime involving drugs.
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Firstly, we are afraid to say that the dismissal on the ground of abandonment was illegal for there was
really no abandonment. In the case of Agabon vs NLRC, the court provided the requisites for
abandonment which are:
1. Absence without justifiable or valid reason
2. A clear intention to sever the employer-employee relationship manifested by their overt acts.
None of these requisites are present in your case. The absence of the service crew is justifiable for they
were detained against their will for the alleged commission of a crime. Secondly there really was no
intention to sever the relationship because as can be seen from their acts, they immediately returned to
work after they were released which is inconsistent with the intent to sever. Hence the dismissal was
illegal.
As there was no abandonment, and as the criminal case was dismissed, you are obliged to admit them
back to work. As was ruled in the similar case of Asian Terminal vs NLRC, where the employee was also
detained but whose case was dismissed because of insufficiency of evidence, the termination of the two
service crew was based on a false or non-existent cause. His absences as a consequence thereof are not
only involuntary but also excusable. Hence like in the above cited case, they are entitled to
reinstatement and back wages. You are required to reinstate the crew members as there was no just
cause in their dismissal. However should your relationship become strained already because of this
issue, you may opt not to readmit them but you will be liable for separation pay of 1 month salary or 1
month for every year of service whichever is higher and full back wages.
Hope this answers your concerns.
FOLLOW-UP QUESTION:
If I admit them back, am I liable for illegal dismissal?
FOLLOW-UP ANSWER:
From the moment that the employees were served with the notice of termination based on the
subsequently declared non-existent cause, you were already liable for illegal dismissal because the
employees were dismissed without just cause. This liability for illegal dismissal is the reason why the
employees are entitled to reinstatement and full back wages from the time he was prevented from
continuing with his employment.
FOLLOW-UP QUESTION:
You mean to say whether I admit them or not when they reported to work, I am guilty of illegal
dismissal, right? But do you expect me to wait for them when they could get themselves out of jail?
Does this not involve dismissal for a false or inexistent cause?
FOLLOW-UP ANSWER:
Yes sir, we are sorry for the confusion in the terms we used in our reply, but the dismissal in your case is
a dismissal for a false or inexistent cause. Jurisprudence has provided that this is not the same as
dismissal without just cause, but still it has been declared as illegal.
JMM SAYS HI!
As the dismissal was illegal you are liable for reinstatement and back wages depending on the
circumstances. If upon release from detention and reporting for work again, you admitted them back
immediately then you are not liable for back wages and the
reinstatement is enough because the employees are not entitled to back wages during the period of
their detention. If you initially refused to admit them back to work, then you are liable for reinstatement
and back wages counted from the time of such refusal until they are reinstated.
However, during the time of detention, the business should not be prejudiced to suffer losses because
of the absence and detention of the employees regardless of their guilt. Hence if upon release of the
employees, replacement or substitute employees have already been hired during their detention, the
returning employees cannot compel you to reinstate them to their original positions, but only to a
substantially equivalent position. [29] QUESTION
Our company is engaged in the assembly and distribution of motor spare parts for vehicles. Sometime
on May 1, 2016, our company offered Juan employment as a production trainee but under a two (2)
month period of probation, to start on June 1, 2016, which was the same date Juan actually started
working. Three (3) days after, Juan was made to undergo a one-on-one orientation about company's
history, philosophy including company standards for regularization.
Juan's performance was first evaluated on July 1, 2016 where it was discovered that Juan falsified his
employment application by falsely representing he was a college graduate when in fact he was not. On
the same date, the company served Juan a notice of preventive suspension for 30 days without pay. On
July 6, 2016, the company served Juan a notice to explain, to which Juan immediately responded on the
same date by simply flatly denying the charges. A formal hearing was also held on August 1, 2016 which
was attended also by Juan represented by counsel. Before the close of office hours on August 1, 2016,
the company served Juan with a notice of termination for failure of Juan to meet the prescribed
company standards for regularization. The notice was made effective close of office hours on August 5,
2016.
Juan contested his dismissal by raising issues on the following: a) validity of his preventive suspension; b)
validity of his dismissal; and c) violation of his statutory right to due process. Kindly advise us. ANSWER:
a) validity of his preventive suspension; The preventive suspension was not valid. In the case at hand,
the preventive suspension preceded the service of the notice to explain to the employee. The notice to
explain must be served first or simultaneously with the notice of preventive suspension. The rationale
under Policy Instructions No. 10 where the Sec. of Labor and Employment explained the rationale for
the imposition of preventive suspension is as follows: “Before Presidential Decree No. 850, the
employers placed workers under preventive suspension flagrantly and indiscriminately even if their
presence in the work site did not pose a serious danger to life or property of the employer or his
employees.” Preventive suspension may be imposed on an errant employee while he is undergoing an
investigation for certain serious offenses. It is justified only in cases where the employees continued
presence in the company premises during the investigation poses a serious an imminent threat to the
life or property of the employer or of the employee’s co-workers. (Mandapat v. Add Force Personnel
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Services, Inc.) Applying the principle of the case, preventive suspension can only be imposed during the
investigation, not afterwards. b) validity of his dismissal; The dismissal was valid. According to the Labor
Code, the following can be the grounds for validly dismissing probationary employees: First, for just and
authorized causes as provided by law. Second, for failure of the employee to qualify in accordance with
the standards of the employer made known to the former at the time of the engagement. Department
Order 147-15 provides: (g) Analogous Causes – To be a valid ground for termination, the following must
be present: 1. There must be an act of omission similar to those specified just causes; and 2. The act or
omission must be voluntary and/or willful on the part of the employees. No act or omission shall be
considered analogous cause unless expressly specified in the company rules and regulations or policies.
The present case falls squarely under this. First, the act of falsifying his employment qualification by
falsely representing he was a college graduate is an act analogous to fraud or willful breach of duty. To
constitute as fraud, the following requisites must be met: 1. There must be an act, omission, or
concealment; 2. It involves a breach of legal duty, trust or confidence justly reposed; 3. It must be
committed against the employer or his/her representative; and 4. It must be in connection with the
employee’s work. Second, the act or omission must be voluntary and/or willful on the part of the
employees. Clearly, it was a willful act on his part to falsify his employment qualification. It cannot be a
mere act of inadvertence who himself prepared such document. His mere act of simply flatly denying
the charges will not suffice since it is mere self-serving. While the general rule is that the burden of
proving dismissal is upon the employer, the employer was able to discharge this burden. The employee,
on the other hand, had every opportunity to controvert the same after the notice to explain was given
and during the hearing but he failed to do so. The dismissal is valid as the employee was dismissed for a
just cause (for fraud and dishonesty), however, there was a violation of the statutory due process for
which the employer may be liable to pay for damages. c) violation of his statutory right to due process.
The act of dismissing a worker for failure to qualify when what he did was fraud or dishonesty
constitutes deprivation of procedural due process.
In Glaxo Wellcome vs. NEW-DFA (2005) citing BPI Credit Corporation vs. NLRC (1994), the Supreme
Court ruled that an employee cannot be dismissed if the ground used in the notice to explain is different
from which was made as basis in the notice to terminate. This is tantamount to procedural due process.
In the instant case, the notice to explain sent to the employee is on the basis of his act of falsifying his
employment application by falsely representing he was a college graduate when in fact he was not. This
falls under fraud as a ground for dismissal. On the other hand, the notice for termination was based on
failure of Juan to meet the prescribed company standards for regularization which is another ground.
Consequently, since the ground used in the notice to explain is different from which was made as basis
in the notice to terminate, there is a violation of procedural due process. [30] QUESTION
time zones. All our clients are located in USA, which observe federally mandated holidays that are
more than one year. Today, December 2, 2016, we got notice from our clients that for two (2) weeks
JMM SAYS HI!
effective on Monday, December 5, 2016 they will be temporarily closed and would not need our
services. I need legal advice and guidance on what to do with my agents during the period in question.
ANSWER:
Considering the nature of the BPO industry, such “floating status” is not unusual since the availability of
the work also depends on the holidays of the specific country from which your clients are domiciled.
Under the law, the bona fide suspension of the operation of a business or undertaking not exceeding six
(6) months does not terminate employment. The following requisites must be followed for it to be
considered a valid suspension of operations:
First, the period of suspension must not be exceeding six months.
Second, the employer shall reinstate the employee to his former position without loss of seniority rights,
if he indicates his desire to resume his work not later than one month from the resumption of
operations of his employer.
In your case, since the temporary closure will only last for two weeks, the said law applies. Such closure
will not terminate the employment of your employees. It is incumbent upon you as the employer to
comply with the second requisite mentioned above. You must reinstate the employees to their former
positions without loss of seniority rights, as long as they indicate their desire to resume their work not
later than one month from the time that the clients will resume to avail of your services.
In the meantime, you must serve your employees with a written notice of suspension individually
addressed to the employees that will be affected by the temporary closure containing the following:
1. The reason why the employer is suspending operations which in your case is the temporary closure of
the business of your clients.
2. The date that the employer expects to resume operations. Since the closure will take effect on
December 5, 2016, the expected resumption of business will be on December 19, 2016.
3. That the employees must indicate, within one month from resumption of operations, their desire to
resume working with the employer.
FOLLOW-UP QUESTION:
How soon can I serve the notice? When will such notice take effect? No need to notify the DOLE?
FOLLOW-UP ANSWER:
Based on decided cases, the one-month notice rule to both the DOLE and the employee is mandatory
for both permanent and temporary suspension of operation.
As such, even if the suspension of your employees is temporary, you should have given the notice a
month before the suspension will take effect or in your case, on November 5, 2016.
However, considering the circumstances surrounding your case, the one-month notice rule can no
longer be complied with.
JMM SAYS HI!
The temporary suspension remains valid. However, for failing to comply with the one-month notice, you
must pay indemnity to the employees.
Another course of action that you may take to avoid paying indemnity is to avail of one type of a labor-
saving device which is forced leave. It refers to one where the employees are required to go on leave for
several days or weeks utilizing their leave credits if there are any.
FOLLOW-UP QUESTION:
Why is there such a 30-day notice, when the employment is not terminated if the operation of the
company is merely suspended?
FOLLOW-UP ANSWER:
The notice must be given at least one month in advance from the date of effectivity of suspension to
enable the employees to look for other means of employment during the time of suspension so that the
impact of the loss of their jobs and the corresponding income will be mitigated. This is to prevent the ill
consequences to the employees who do not get paid while there is a temporary suspension of
operations.
This is based on jurisprudence where courts interpreted Article 301 [formerly Article 286] which
provides:
ART. 301. When Employment not Deemed Terminated. The bona-fide suspension of the operation of a
business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of
a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate
the employee to his former position without loss of seniority rights if he indicates his desire to resume
his work not
later than one (1) month from the resumption of operations of his employer or from his relief from the
military or civic duty.
The following jurisprudence shall shed light on the matter:
In Lopez v. Irvine (2014), the court ruled that “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
therefor. These employees cannot forever be temporarily laid-off. To remedy this situation or fill the
hiatus, Article 286 may be applied but only by analogy to set a specific period that employees may
remain temporarily laid-off or in floating status.”
It further ruled that “Notably, in both a permanent and temporary lay-off, jurisprudence dictates that
the one-month notice rule to both the DOLE and the employee under Article 283 [now Article 298] of
the Labor Code, as above cited, is mandatory.”
In PT&T v. NLRC (2005) citing Sebuguero v. National Labor Relations Commission (1995), the notice must
also be given at least one month in advance of the intended date of retrenchment to enable the
employees to look for other means of employment and therefore to ease the impact of the loss of their
JMM SAYS HI!
jobs and the corresponding income. That they were already on temporary lay-off at the time notice
should have been given to them is not an excuse to forego the one-month written notice because by
this time, their lay-off is to become permanent and they were definitely losing their employment.”
In all of these cases, it can be said that provisions on the one-month notice rule is applicable to both
permanent and temporary layoff. Thus, in your case where there is temporary suspension, the one-
month notice rule is also applicable. Both permanent and temporary layoff have economic
consequences to employees. The law affords protection to labor, as much as it does to capital, that is
why while it is considered a management prerogative to layoff employees, procedure on notice must be
followed to lessen the impact of the loss of jobs to employees' income. Adverse economic consequences
are both present in permanent and temporary layoff of employees.
[31] QUESTION
Our company is engaged in the assembly and distribution of motor spare parts for vehicles. Sometime in
May of 2016, our company hired and employed Juan Dela Cruz employment as a production trainee
under a six-month period of probation effective September 15, 2016, where he was apprised of the
measures of performance, the desired performance rating, and what he is expected to do or accomplish
during the period of probation. Two months after, the company found the performance of Juan wanting
in terms of efficiency, diligence and initiative.
May we ask you to draft for us a notice of dismissal, and to advise us of the step by step procedure to
make the dismissal valid. The employee's address is at 100 Junquera St., Cebu City.
ANSWER:
To affect valid termination, first, you must notify him of his failure to comply with the standards based
on what he was apprised of when he was engaged as found out by your company that his performance
is wanting in terms of efficiency, diligence, and initiative.
Second, a letter or notice indicating the grounds for the termination and the effectivity of the
termination must be served to him within reasonable time. At least 5-day notice to the employee before
the effectivity of termination is sufficient.
Third, you must make sure that the notice be sent to him personally or to his last known address.
Below is a sample of notice of dismissal.
DRAFT NOTICE OF DISMISSAL
November 28, 2016
Private and confidential
Mr. Juan Dela Cruz
100 Junquera St., Cebu City
Dear Mr Juan Dela Cruz;
Good Day!
JMM SAYS HI!
Termination of Employment
Your probation period with us at Toyota Motor Parts Company as a production trainee is due to end on
March 16, 2016.
We confirm that we have decided not to continue your employment beyond your probationary period
for your unsatisfactory work performance and poor performance ratings as you have fallen short of the
required satisfactory measures of performance, desired performance ratings, and the expectations to be
accomplished during the period of probation.
During the two months from the date of your employment, as per assessment, your performance is
wanting in terms of efficiency, diligence and initiative. As early as the time you started working with us,
you had been apprised of the measures of performance, desired performance ratings, and what you are
expected to do to accomplish during the period of probation. However, two months after the date of
your employment, after a thorough observation and evaluation of your performance, the company
found out that you failed to comply with the standards provided for under the contract. Despite your
knowledge of the standards, the company has seen enough of your actuations that you continued to
have performance problems and you did not exert the required dedication to comply with the
standards. Because of this, you were given an unsatisfactory rating arising from your poor performance.
As such, because of your failure to qualify with standards as provided for in your employment contract,
the company has finally decided to terminate your employment effective on December 15, 2016.
We wish you well in your future endeavors.
Thank you.
Very Truly Yours,
Toyota Motor Parts Company
[32] QUESTION
Our company is into private scientific and laboratory research. And our ongoing project involves a study
and research of various
chemical components used in building a nuclear plant. We were recently notified by the Professional
Regulatory Commission to hire and employ registered chemists to head our chemical laboratory. Right
now, what we have is a licensed Chemical Engineer but no registered Chemist. We are at a loss as we
believe that hiring and employment of managerial staff must be left to our sound discretion as
management prerogative, which the government must not interfere with. Kindly advise. ANSWER:
On the matter at hand, the Professional Regulatory Commission, which is an agency of the government
has the power to impose regulations in pursuance to the police power of the government to promote
the safety and health aspect of the society. Which is why they may validly impose such regulation on
your company and this does not interfere with your vested management prerogative.
JMM SAYS HI!
[33] QUESTION
I will be hiring full time teachers to teach in senior high school for this coming school year, 2017-18, as
there is a high demand for academic teaching personnel due to the K to 12 implementation. However, I
also need to make sure these qualified job applicants are made to undergo probation. Can you please
draft a simple contract which abides with the minimum requirements of law?
ANSWER:
Attached is the proposed draft for your contract with your desired employees. Such has been prepared
in pursuant to the requirements of our Labor Code and the 2010 Revised Manual of Regulations for
Private School.
EMPLOYMENT CONTRACT
This AGREEMENT is made as of the 23rd day of November, 2016, between Mr. Juan dela Cruz, owner of
[NAME OF SCHOOL], having its address at Pelaez, Cebu City; and [NAME OF EMPLOYEE], of the City of
Cebu.
1. EMPLOYMENT
The Employee agrees that he will perform all of the duties required as full time teachers in senior high
school for this coming school year, 2017-2018. That under this duration, the employee shall be under
probation in order for the Employer to assess the Employee's fitness and efficiency for the work.
On the other hand, the Employee, as a probationary academic personnel, undertakes to:
a. Possess at least the minimum academic qualification prescribed by the 2010 Revised Manual of
Regulations for Private School in Basic Education (see annex);
b. Have a total working day of not more than eight hours a day devoted to the school;
c. Have no other remunerative occupation elsewhere requiring hours of work that will conflict with the
working hours in school;
d. Not teach full-time in any other educational institution.
2. COMPENSATION
The employer, Mr. Juan dela Cruz, assumes to pay monthly based on the regular teaching loads as will
be assigned on the start of school year. Other benefits in compliance with the minimum standards
required by the Labor Law shall also be provided by the Employer.
3. QUALIFICATIONS FOR REGULARIZATION
That the employee, after such period, shall become a regular full time academic personnel if and only if
he/she has satisfactorily met the following reasonable standards:
a. The Employee will at all times faithfully, industriously, and to the best of his skill, ability, experience
and talents, perform all of the duties required of his position.
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b. That in carrying out these duties and responsibilities, the Employee shall comply with all Employer
policies, procedures, rules and regulations, both written and oral, as are announced by the Employer
from time to time.
c. That it is agreed to by the Employee that his assignment, duties and responsibilities and reporting
arrangements may be changed by the Employer in its sole discretion without causing termination of this
agreement.
4. Entire Agreement
This agreement contains the entire agreement between the parties, superseding in all respects any and
all prior oral or written agreements or understandings pertaining to the employment of the Employee by
the Employer and shall be amended or modified only by written instrument signed by both of the
parties hereto.
SIGNED, SEALED AND DELIVERED this 23rd of November, 2016 in the presence of:
________________________________________.
[Name of employee]
[Signature of Employee]
[Name of Employer Rep]
[Signature of Employer]
Thank you very much for your engagement. I hope that I have addressed your concerns.
[34] QUESTION
I have been operating my restaurant business for the past 20 years. Last month, I received an advance
notice from my lessor that our lease contract where my restaurant is located will no longer be renewed
after its expiration on December 31, 2016. I need your legal advice whether I can terminate the
employment of all my restaurant managers and employees since I have no other plans to relocate my
establishment. Please advise.
ANSWER:
We have reviewed your concern and we are happy to inform you that under our laws, you can validly
terminate the employment of all of your managers and employees.
Under the Labor Law, Art. 298, previously 283, and provided in the case of Industrial Timber Corp. vs.
Ababon a reading of Article 283 of the Labor Code shows that a partial or total closure or cessation of
operations of establishment or undertaking may either be due to serious business losses or financial
reverses or otherwise. Under the second kind, the employer can lawfully close shop anytime as long as
cessation of or withdrawal from business operations was bona fide in character and not impelled
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by a motive to defeat or circumvent the tenurial rights of employees, and as long as he pays his
employees their termination pay in the amount corresponding to their length of service. Just as no law
forces anyone to go into business, no law can compel anybody to continue the same. Your case falls
under this circumstance because termination of the lease contract without renewing leading to closure
of the business is an analogous authorized cause.
Employers are accorded rights and privileges to assure their self-determination and independence, and
reasonable return of capital. This is the so-called management prerogatives. One of the rights accorded
an employer is the right to close an establishment or undertaking. The decision to close the business due
to non-renewal of a lease contract is definitely not a circumvention of law thus we are confident that
you may validly terminate their employment.
Be warned, however, that under DO 147-15, you have to serve a written notice to all your employees
and the appropriate regional office of the Department of Labor and Employment at least 30 days before
the effectivity of the termination, specifying the ground for termination. Considering that the expiration
will be on Dec. 31, 2016, the 30-day can no longer be complied with in your case. We just want to give
you a heads up and be ready to answer for nominal damages in case some of your employees would ask
for vindication for a possible violation of their right to statutory due process.
[35] QUESTION
A strike occurs at a local bank. Since acts of violence have been actually committed by the strikers, the
bank's management filed directly with the NLRC a petition for injunction to enjoin the commission of
further illegal acts. Acting in the interest of public welfare, the NLRC issued an injunction ordering the
striking employees to return to work, and obliging management to accept them back to work. The bank
was happy with the decision, while the striking union consulted you as regards the injunction order
issued by the NLRC. What will be your advice to the Union?
ANSWER:
The injunction issued by the NLRC, ordering the striking workers to return to work and for management
to accept them back to work is improper. Article 265 of the Labor Code states that no temporary or
permanent injunction or restraining order in any case involving or growing out of labor disputes shall be
issued by any court or other entity, except as otherwise provided in Articles 218 and 264. Labor
injunction is not favored, but it is subject to exceptions.
Under Article 218 of the Labor Code the NLRC have the power and authority to enjoin or restrain any
actual or threatened commission of any or all prohibited or unlawful acts or to require the performance
of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave
or irreparable damage to any party or render ineffectual any decision in favor of such party. Hence, the
NLRC can only issue an injunction order directed only against the illegal acts being connected with the
labor dispute; it cannot be directed against the dispute itself.
In your case, the injunction order issued by the NLRC was not directed against the illegal acts committed
by the striking workers. It ordered the striking workers to return to work and for management to accept
them. It was not issued to enjoin the commission of further illegal acts as filed by the management. It
was directed against the labor dispute itself, which is not proper except after hearing the testimony of
witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made
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under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the
Commission. Thus, the Union has grounds to question the validity of the injunction order issued by the
NLRC.
[36] QUESTION
Our company is into private scientific and laboratory research. And our ongoing project involves a study
and research of various chemical components used in building a nuclear plant. We were recently
notified by the Professional Regulatory Commission to hire and employ registered chemists to head our
chemical laboratory. Right now, what we have is a licensed Chemical Engineer but no registered
Chemist. We are at a loss as we believe that hiring and employment of managerial staff must be left to
our sound discretion as management prerogative, which the government must not interfere with. Kindly
advise.
ANSWER:
I would like to take this opportunity thank you for trusting us with your query. The crux of the issue you
presented to us was whether or not the Professional Regulatory Commission (PRC) can interfere with
your management prerogative in choosing your employees.
To start with, you are correct in saying that the hiring and employment of managerial staff is a
management prerogative which the government must generally not interfere with. However, this right is
not absolute as confirmed by several jurisprudence. As provided in a case, management prerogative is
limited by the provisions of law or regulations in the exercise of the police power of the state.
Following the presumption of regularity in the performance of functions of the PRC, their issuances of
reasonable regulations, like in your case of requiring registered chemists, defeats management
prerogative. Being a government agency tasked to regulate professions, it has the power to issue
regulations to require the registration of employees in the exercise of the police power of the state.
Nuclear plants, being a very hazardous endeavor, the state has reasons why the employees working in
such establishment are highly regulated, hence requiring registration to ensure quality of performance.
Hence, we must follow the directives of the PRC and hire a registered chemist for your nuclear plant.
[37] QUESTION
Our company is in construction business. And our ongoing project involves the construction of a 10
storey commercial building in Ayala. For the erection and installation of airconditioning machinery, we
offered an employment to Engr. Edwin as Chief Engineer with a starting monthly salary of Php50,000.00.
While he conveyed to me his interest in the the offer, Engr. Edwin would like us however to offer him a
higher pay due to his experience in the construction industry. Yesterday afternoon while management
was deliberating on the counter-offer, Engr. Edwin called me by phone informing me that he was
accepting the salary originally offered. I informed him however
that management has offered the job to another person. Were we right in rejecting Engr. Edwin? Please
advise.
JMM SAYS HI!
ANSWER:
I would like to take this opportunity to thank you for trusting us with your query. Going to the query in
hand, the gist of your questions is whether or not your rejection to the acceptance of Eng. Edwin as
Chief engineer in your company is valid.
In our professional opinion, your rejection to the acceptance of Eng. Edwin for the Job is valid. Under the
Labor Code, no provisions can be found prohibiting the rejection by a projected employer to a projected
employee. Inherently, this is a management prerogative on the side of the employer to whether or not
to accept the projected employee.
The employer cannot be faulted by the subsequent acceptance of the projected employee, to do so,
would violate the right of the employer against involuntary servitude.
[38] QUESTION
Juan, Jorge and Joy are employed as tailors by a tailoring establishment operating in Lapu-Lapu City.
They are paid on a piece-rate basis. However, they were considered as mere casual employees even at
present although they have been working for 8 months already. Is this employment arrangement
lawful?
ANSWER:
In our legal opinion, the employment arrangement was unlawful. The law, specifically the Labor code,
defines casual employment as follows:
“An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided,
That any employee who has rendered at least one year of service, whether such service is continuous or
broken, shall be considered a regular employee with respect to the activity in which he is employed and
his employment shall continue while such activity exists.”
Furthermore, the implementing rules and regulations of the Labor Code gives casual employment a
definition, which is as follows: “Where an employee is engaged to perform a job, work, or service which
is merely incidental to the business of the employer, and such job, work, or service is for a definite
period made known to the employee at the time of the engagement.” In your case, you were employed
as a tailor in a tailoring establishment. Since casual employment, as defined above, refers to
employment which is incidental to the main business or trade of the employer, your arrangement with
the employer is unlawful, as it is not in compliance with the requirements set under the law for casual
employment, you being employed in the main business or trade of your employer.
Moreover, the law, as stated above, requires that casual employment status be made known to you at
the time of engagement. In your case, you were already working for 8 months with your employer. The
latter never informed you beforehand at the time of your engagement months ago, that you were
indeed a casual employee. It runs short again of compliance with the law pertaining to casual
employment.
Thus, again, it is of our opinion that your employment arrangement with your employer is unlawful.
FOLLOW-UP QUESTION:
JMM SAYS HI!
Do you mean to say that if these workers were informed at the time of their engagement that they were
casual employees, their employment arrangement is lawful?
FOLLOW-UP ANSWER:
The test for classifying one as a casual employee is whether the service performed by the employee is
not usually necessary or desirable to the principal business of the employer. Otherwise stated, one is
deemed to be a casual employee if the job performed is merely incidental to the main business of the
employer. It is then inconsequential whether you were notified of your classification as an employee.
Hence, notwithstanding the fact that the employee was notified, the arrangement is still unlawful.
FOLLOW-UP QUESTION:
If that is the case, why was there a need for you to include the following in your legal advice?
In your case, you were already working for 8 months with your employer. The latter never informed you
beforehand at the time of your engagement months ago, that you were indeed a casual employee. It
runs short again of compliance with the law pertaining to casual employment.
FOLLOW-UP ANSWER:
Our initial legal opinion included such advice to discuss further the requirements for casual employment
to be met, for the purpose of determining further whether or not your employment arrangement was
unlawful.
However, since the first requirement under the law, which is that work should be incidental to the main
business of the employer was already not met, the employment arrangement was already unlawful,
regardless of whether or not you were informed beforehand at the time of engagement of your
employment status.
[39] QUESTION
Our company is a beef cannery, where majority of our workers are doing manual packing and casing up
of beef meat which are exported to China. Miguel who is one of my regular manual workers recently
contracted viral skin diseases. I immediately asked Miguel to secure a certification from a public health
hospital if his disease is curable or not. After a week, Miguel failed to provide me with such certification
as he wanted to keep his job. I issued a notice of preventive suspension to Miguel for 30 days without
pay, and five days after, i asked him to explain why he should not be dismissed for his disease. Miguel
still refused to answer. Please advise me whether I acted in accordance with law and how I shall proceed
to be legally compliant.
ANSWER:
Thank you once again for trusting us with your query. Based on our understanding, your problem
revolves around the issue of whether or not your act of preventively suspending your employee and
subsequent request for explanation why he should not be dismissed is legal based on the fact that he
contracted a viral skin disease.
JMM SAYS HI!
First of all, based on the fact that you are requesting Miguel to show cause as to why he should not be
dismissed, it would seem that you are currently contemplating of dismissing him from service. In this
regard please take note that your act of requiring him to secure a certification is not in accordance with
the law because the burden of securing and proving the validity of the dismissal rests on the employer,
meaning the burden of making sure that there is a medical certificate is on you. Without this medical
certificate, an employee cannot be dismissed as decided by jurisprudence. Hence we advise that you
should ensure that this is taken care of and not leave it to Miguel’s discretion, otherwise, he cannot be
dismissed.
As to the preventive suspension, in the implementing rules of the Labor Code an employer may subject
an employee to preventive suspension if his continued employment poses a serious and imminent
threat to the life or property of the employer or of his co-workers. This is clearly applicable in the case at
bar especially that the company is engaged in food processing. Considering that the skin disease is viral,
it clearly is a threat to the life of your other employees and your property as it may contaminate your
food products. The preventive suspension in this case is not a form of penalty but rather a measure to
protect the life and property of the employer. Hence, the preventive suspension was valid.
FOLLOW-UP QUESTION:
Can preventive suspension be used if the ground for dismissal is disease?
Was it right when I asked my employee to explain? If not, can you advise me the step by step procedure
on how to handle this right?
FOLLOW-UP ANSWER:
This is in response to your request for clarifications on our previous reply.
Firstly, on whether preventive suspension can be used for the ground of disease, the law does not
clearly provide for rules and neither does jurisprudence. However, taking guidance from the
deliberations in drafting implementing rules of the labor code and the case of Mandapa v. Add Force
Personnel Services, Inc, preventive suspension is a measure allowed by law and afforded to the
employer if an employees continued employment poses a serious and imminent threat to the
employer’s life or property or of his co-workers. It may be legally imposed against an employee whose
alleged violation is the subject of an investigation. With this explanation, it would seem that preventive
suspension is not applicable in the case at bar as disease is not a serious violation or offense of the
employee. Also, as this is an authorized cause, there would be no investigation and so preventive
suspension is not applicable. Hence, we deviate from our previous answer that the suspension was valid.
We were simply concerned of the health risks in having an employee with skin disease in the company
premises, however preventive suspension is not the proper remedy. In order to prevent the spread of
such disease in your company, allowing him leave with pay may be a more equitable recourse. On the
question of whether it was right for you to ask your employee to explain, this is a rather complicated
matter. Termination on the ground of disease has constantly been held by jurisprudence as an
authorized cause. However, in the case of Deoferio v. Intel Technology Philippines, Inc (2014), despite
acknowledging that it is an authorized cause, the court ruled that the procedure to be followed should
be the twin notice requirement in termination for just causes. This ruling poses serious questions as it is
quite confusing why an employee still needs to explain or show cause as to why he should be
JMM SAYS HI!
terminated, when in fact this should no longer be subject to debate as this can already by settled
through the medical certificate. If the certificate shows the disease is not curable in 6 months then
termination is proper, otherwise it is not. Hence, probably seeing this flaw, the Department of Labor
issued DO No. 147-15 series of 2015 clearly setting the rules for termination based on disease. In the
Department order, Disease has been clearly classified as an authorized cause and so it follows the
procedure for authorized causes as follows: 1. Notice to the sick employee to submit himself for medical
examination by a competent public health authority to determine that the disease is incurable within a
period of 6 months even with proper medical treatment must be acquired. A certification to this effect
must be acquired and the burden to ensure this is with the employer.
2. If proven that the disease is not curable within 6 months through the certificate, there must be
service of a written notice to the employee and the appropriate Regional Office of the DOLE at least
thirty days before the effectivity of the termination specifying the grounds for termination.
Hence with the following explanation above, we believe that requiring the employee to explain is not
right because there is no such need. The certification is all the proof that is required.
[40] QUESTION
Walde Rank-and-file Union entered into a CBA with USC School effective from January 1, 2005 to
December 31, 2010. This CBA was duly registered. On February 25, 2010, the Walde Rank-and-file Union
signed another CBA with management effective from January 1, 2011 to December 31, 2016. On
November 15, 2010, Torregosa Rank-and-file Union, a minority Union in the same bargaining unit filed a
petition for certification election. If you were the Med-Arbiter, will you grant the petition?
ANSWER:
Renegotiation of the CBA before or during the freedom period is expressly allowed by D.O. No. 40-03.
Under Sec. 14, Rule 8, a Med-Arbiter may dismiss a petition for a Certification Election on the ground
that the petition was filed before or after the freedom period of a duly registered collective bargaining
agreement provided that the sixty day period based on the original collective bargaining agreement shall
not be affected by any amendment, extension, or renewal of the collective bargaining agreement. Sec.
24 thereof states that the certification case shall not be adversely affected by a collective bargaining
agreement registered before or during the last 60 days of a subsisting agreement or during the
pendency of the representation case.
In your case, the renegotiation was made on February 25, 2010 and therefore, sanctioned by the rules.
However, Torregosa Rank-and-File Union filed a petition for certification of election on November 15,
2010 which is within the 60-day freedom period of the original Collective Bargaining Agreement.
Therefore, it should not be adversely affected by any amendment or renewal of the CBA granted to
Walde Rank-and-File Union which will take effect on January 1, 2011 to December 31, 2016.
However, should Torregosa Rank-and-File-Union win, the certified would have to still respect the
contract entered into between Walde Rank and File Union but it may bargain with the management to
JMM SAYS HI!
shorten the life of the contract if it is too long as was ruled in the case of General Maritime Stevedores
Union of the Philippines vs. South Sea Shipping Lines.
[41] QUESTION
I was offered employment as a part-time academic teacher in high school. I agreed and signed an
employment contract for the school year 2015-2016, to start on 15 June 2015 and end on 15 April 2016.
After the end of the said school year, I was surprised that the school did not renew my employment
contract. Do I have any cause of action against the school?
ANSWER:
Under 2010 Revised Manual of Regulations for Private Schools, only school personnel who has
successfully undergone the probationary period and who is fully qualified under the existing rules and
standards of the school shall be considered permanent.
In the case of La Cuesta vs ADMU, a part time teacher cannot acquire a permanent status. Only when he
has served as a full time teacher can he acquire a permanent or regular status. As part time lecturer, her
employment as such had ended when her contract has expired. Petitioner could only qualify to be a
permanent employee upon fulfilling the reasonable standards for permanent employment as faculty
member. At the end of the probation period, the decision to re-hire an employee on probation, belongs
to the university as the employer alone. Probationary employees enjoy security of tenure but only
within the period of probation.
In your case, you are considered under probationary period since you are employed as a part time
teacher only for that school year 2015. You are fully aware that your employment contract as a part-
time academic teacher will end on 15 April 2016. Hence upon the expiration of your contract if you
failed to meet the standards set forth by the school, it is within management prerogative of the school
not to re-new your employment contract. Absent any showing of the violation of the statutory
procedural and substantive due process, you may not have a cause of action against the school.
Unless you have not been notified of the fact of the expiration of the employment contract and your
failure to meet the standards set forth under the law and school policies was not communicated, you
may have a cause of action against the school for failure of the school with the procedural due process
with regards to the termination of your contract.
[42] QUESTION
I was among those employed as field surveyor by a company engaged in market research and
information, doing public surveys about consumer goods. My employment was covered by three (3)
project employment contracts which were successively and unintermittently renewed, one after the
other, depending on my level of performance. At the end of each contract, our employer would report
to the regional office of the DOLE the completion or termination of such contracts. Among the salient
provisions of my project employment contract is a stipulation that "if our employer finds that we are not
qualified, competent or efficient in accordance with the standards made known to us at the start of our
employment, our employment may be terminated after compliance with due process without the
benefit of separation pay." Last week, I was about to start with my fourth (4th) project employment
JMM SAYS HI!
contract. However, my employer notified me that it will no longer renew my contract, because of my
poor performance from the last contract.
ANSWER:
Taking into consideration the totality of your employment contract with your employer it seems that the
designation of your contract as project employment is merely farcical such that it is only intended to
circumvent security of tenure and other privileges, benefits granted to a regular employee.
Under the Labor Code, a project employment is one whose employment has been fixed for a specific
project or undertaking, the completion or termination of which has been determined at the time of the
engagement of the employee. The services of project employees are coterminous with the project and
may be terminated upon the end or completion of that p project for which they are hired.
From the facts you presented your contract can hardly be considered as project employment although it
is labeled it as such. Except in so far as reporting made by the employer the completion or termination
of your contracts with the regional office of the DOLE, there is no other indicators that you are a project
employee at the very least as provided in Section 2.2 of D.O No, 19. The fact of reporting is not
conclusive but only an indication that you are a project employee.
However, even assuming that you are project employee, the fact that your project employment
contracts which were successively and unintermittently renewed, one after the other, depending on
your level of performance had already made you gain a status of regular employee such that you are
entitled to the twin requirement of notice before your employment may be terminated.
We have jurisprudence to support this. In the case of Samson vs NLRC, the Supreme Court ruled that
with the successive contracts of employment t wherein petitioner continued to perform virtually the
same kind of works throughout his period of employment, it is manifest that petitioner’s tasks are
usually necessarily or desirable in the usually. The repeated re-hiring and continuing need for his
services are sufficient evidence of the necessity and indispensability of such services to private
respondents’ business or trade. Where from the circumstances it is apparent that periods have been
imposed to preclude the acquisition of tenurial security by the employee, they should be struck down as
contrary to public policy, morals, good customs or public order.
Hence, having acquired the status of a regular employee, the employer must follow the procedural and
substantive due
process afforded to a regular employee. In your case, the employer did not comply with the
requirement hence you can sue the employer for illegal dismissal, and you may demand backwages and
even reinstatement.
[43] QUESTION
I am one of the workers of a tuna cannery. On July 1, 2014, I was employed as temporary emergency
worker on casual basis for a fixed period of 5 months in order to cope with, and meet the unusually high
volume of production orders from Japan, doing skinning, loining, packing and casing up of tuna meat.
JMM SAYS HI!
My temporary casual contract of employment expressly states that my period of employment shall not
go beyond the duration of the work or purpose for which I was engaged. On February 1, 2015, I was told
that my services were no longer needed as the volume of production has normalized. I was then paid my
final pay and made to sign a quitclaim, absolving the company of any liability.
I am presently employed now with another company. However, I need a legal advice if I have any cause
of action, and relief against my former employer.
ANSWER:
There are two types of activities in project employment. First, it could refer to a particular job within the
regular or usual business of the employer company but which is distinct and separate, and identifiable
as such, from other undertakings of the company. The second one refers to a particular job not within
the regular or usual business operations of the employer but which is distinct and separate, and
identifiable from the ordinary or regular operations of the employer.
Since the skinning, loining, packing and casing up of tuna meat are not distinct and separate, and not
identifiable from the undertakings of the company, your employment should have been deemed regular
after five months.
Upon the expiration of a contract of employment for a definite term, and the employee continues to
render the same services without entering into any new agreement is evidence of the necessity and
desirability of the service in the business. After Dec. 1, 2014 or 5 months after the date of engagement,
your employment was no longer for a specific period as that period has lapsed and you continued to
work.
Since you were already a regular employee on February 1, 2015, and there was no just or authorized
cause in your dismissal, you have a cause of action against your previous employer for illegal dismissal.
[44] QUESTION
I am the President of a call center company in Cebu City, which caters to the needs of clients operating
in various time zones. My principal client is AT&T, a telecommunication company based in U.S. and I just
got a three year contract with them subject to pre-termination by either party upon a five (5) day
advance notice. Because of the peculiarity of the nature and exigencies of my business, I need call
center agents who will be physically available at the office to keep their seats manned in order to service
the continuous inflow of customer queries. My agents are expected to be awake most of the night from
10 pm till 8 the next morning, usually starting their shift by logging on to their computers and wait for
the customers to call in with their queries.
I need your legal advice on what is the best type of employment contract I can hire these agents.
ANSWER:
We are of the opinion that the best type of employment contract that you should use is project
employment contract. There are two requisites for an employee to be considered project-based, first, is
that the employee is assigned to carry out to a specific project or undertaking; and second, is that the
duration and scope of which were specified at the time they were engaged. There are two types of
project, the project could either be (1) a particular job or undertaking that is within the regular or usual
JMM SAYS HI!
business company, but which is distinct and separate and identifiable as such, from the other
undertakings of the company; or (2) a particular job or undertaking that is not in the regular business of
the corporation. Your case falls squarely on the first type.
In drafting your project employment contract, you must specify that the employee’s work is confined to
the specific project or undertaking which is catering to the needs of AT&T; the duration of which is co-
terminus to the duration of the contract.
Project employment is the best employment contract under the circumstances since it provides a
benefit for both the employer and the employee. Under project employment, your agents are
considered as regular employees and therefore will benefit by having security of tenure for the duration
of the project and may only be terminated for just or authorized causes. On the other hand, you as the
employer will enjoy the benefit of the project employment being co-terminus with the project, thereby
foreclosing the possibility of redundancy when the project is complete. This means that at the expiration
of the contract, you will not be compelled to keep the agents employed when there is no more work for
them to do. Under the project employment contract, you need not also pay separation pay to your
agents when they are dismissed from employment due to the completion of the project.
[45] QUESTION
The Secretary of the DOLE certified the strike in a tire manufacturing company to the NLRC for
compulsory arbitration and ordered the striking employees to report back to work. The Union refused to
obey, prompting the company to file a complaint for illegal strike against defiant officers and members
of the Union. If you were the counsel for the Union officers and members, what defense/s may you
interpose?
ANSWER:
According to Art. 263 par. 7, "when, in his opinion, there exists a labor dispute causing or likely to cause
a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and
Employment may assume jurisdiction over the dispute and decide it or certify the same to the
Commission for compulsory arbitration." This provision of law requires that the industry in question is
indispensable to the national interest. In connection with this, a perusal of Department Order 40-H-13
shows that the tire industry is not one of those indispensable to the national interest. Thus, grave abuse
of discretion on the part of the Secretary of Labor in assuming jurisdiction may be raised by the
members and officers of the union as a defense.
In the case of Philippine Long Distance Telephone Co. vs. Manggagawa ng Komunikasyon sa Pilipinas,
the Supreme Court said that “[w]hen the Secretary exercises the powers granted by Article 263(g) of the
Labor Code, he is, indeed, granted great breadth of discretion. However, the application of this power is
not without limitation, lest the Secretary would be above the law. The discretion conferred upon officers
by law is not a capricious or arbitrary discretion, but an impartial discretion guided and controlled in its
exercise by fixed legal principles. It is not a mental discretion to be exercised ex gratia, but a legal
discretion to be exercised in conformity with the spirit of the law, and in a manner to subserve and not
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to impede or defeat the ends of substantial justice. From the foregoing, it is quite apparent that no
matter how broad the exercise of discretion is, the same must be within the confines of law. Thus, the
wide latitude of discretion given the Secretary under Art. 263(g) shall and must be within the sphere of
law.”
[46] QUESTION
After faithfully complying with all the prescribed requirements, the certified bargaining Union went on
strike for unfair labor practices on the part the manufacturing company. While conducting the strike,
some Union officers blocked the ingress to and egress from the company's plant, locked the gates, and
threw stones at the company's vehicles. This prompted the company to bring to the factory
replacements for these strikers since production must continue in order to meet pending orders from
customers.
Did management act in accordance with law? Please advise.
ANSWER:
Yes, the management acted in accordance with law.
Even though a strike is valid because it has complied with all the prescribed requirements, the
commission of prohibited activities under Art. 279 of the Labor Code, as amended, makes the strike
illegal. Article 279 paragraph (e) of the Labor Code, as amended, states that “[n]o person engaged in
picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or
egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares.”
Since the strike was illegal because of the commission of the prohibited activities, the employment
status of the union officers who committed the illegal acts or knowingly participated the strike is
deemed lost. Article 279(a) paragraph 4 of the Labor Code, as amended, states “. . . Any officer who
knowingly participates in an illegal strike and any worker or any union officer who knowingly
participates in the commission of illegal acts during a strike may be declared to have lost his
employment status. . . .” Since the employment status of the union officers is already deemed lost, the
management is free to hire replacements to meet the pending orders from customers.
[47] QUESTION
I am an out-of-school youth who is still single, unemployed and without any work experience. I am 28
years old when I stopped my fourth year schooling in college due to financial difficulties. Last summer
vacation, I got myself a full time job as Inventory Clerk at a pharmaceutical company in Mandaue City
and worked for two months. I was then able to finish my college and graduated on time. Three (3)
months after, I received an offer from the same pharmaceutical company as Inventory Clerk under a six
month period of probation. Is it lawful for the company to hire and engage me for a full six months
probation when I had already learned the job and acquired the skills desired during my summer job with
the same company. Please advise.
ANSWER:
Based on the information you gave me, I can say that it is not lawful for the company to hire and engage
you for a full six months probation.
JMM SAYS HI!
Under RA 10869, as amended by RA 10917, an out-of-school youth who is 15 years of age but not more
than 30 years old, and has experienced working in a company, can have his period of employment in the
said company counted as part of the student's probationary period should he apply in the same
company after graduation.
In your case, you have worked for the company for two months. This period of employment must be
taken into account by the company when they offered you a job as Inventory Clerk. Hence, the period of
probation should have been at most 4 months and not 6 months.
Art. 281 of the Labor Code limits the probationary period to 6 months. A duration which exceeds that
will be considered unlawful.
I hope that I have answered your query. Should you have further queries, please do not hesitate to
contact me.
[405-November 27]
I am one of the workers of a beef cannery, who was hired by the company as casual worker for a fixed
period of 5 months, doing packing and casing up of beef meat which were then exported to China. It is
the practice of the company for the past 10 years to hire workers under this uniformly fixed contract
basis and to replace them upon the expiration of their contracts with other workers on the same
employment duration. In fact, the main bulk of the company's workforce consisted of casual employees,
with only a small percentage on regular and permanent employ. After the expiration of my contract last
December 1, 2016, my contract was no longer renewed or extended but I was made to sign a quitclaim,
absolving the company of any liability. I am presently employed now with another company. However, I
need a legal advice if I have any cause of action, and relief against my former employer.
SUGGESTED ANSWER:
Yes, you have a cause of action because you should be considered as a regular worker.
Under the Labor Code, a regular employee is one who is engaged to perform activities which are usually
necessary or desirable in the usual trade or business of the employer.
On the other hand, a casual employee is one who is engaged to perform a job, work or service which is
merely incidental to the business of the employer, and such job, work or service is for a definite period
made known to the employee at the time of engagement.
In addition, a fixed-term employment is one where the employee is performing work that is usually
necessary or desirable in the business of the employer wherein the contract of employment stipulates
the duration or term of employment. In the case of Brent School vs. Zamora, for a fixed term
employment to be valid, it must not only be knowingly and voluntarily agreed upon by the parties
without any force duress or improper pressure being brought to bear upon the employee but also must
not be entered into merely to circumvent the employee’s security of tenure.
In your case, you are engaged in packing and casing up of beef meat which is necessary or desirable to
the business of your employer, which is a beef cannery. Hence, you cannot be regarded as a mere casual
employee but a regular employee.
JMM SAYS HI!
Additionally, your engagement as a fixed-term employee is clearly a means on the part of the employer
to circumvent the employees’ security of tenure. This conclusion can be inferred from the act of the
employer in fixing the term of most of its workers’ employment to five months and him maintaining
such proportion to the number of regular workers for a period of 10 years.
Thus, you have a cause of action against your employer.
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[405-November 27]
Isog Security Agency entered into a one (1) year contract of security services with Metro bank. Pursuant
to this contract, Edwin was deployed to Metro bank as a Roving Guard under an employment contract
which was made co-terminous with the service agreement. However, after two months, Edwin was
relieved by the agency upon the request of Metro bank when Edwin was found sleeping while on duty.
Edwin was then directed to report to the agency’s head office for re-assignment. Three months have
elapsed but the agency found no other client for Edwin’s re-assignment. Hence, Edwin became
impatient and decided to apply for a job with another security agency and in fact, immediately got to
work thereat because of his experience.
Meanwhile, Edwin sought your advice if he could file a complaint for illegal dismissal against his former
employer. Please advise.
SUGGESTED ANSWER:
Thank you for seeking our legal advice regarding this matter. In particular, you inquired as to whether or
not you may file a complaint for illegal dismissal against your former employee for failing to reassign you
three months after you were recalled for reassignment in your previous employment. In your case, we
have identified two issues (1) Whether or not there is a valid cause for the transfer, and (2) Whether or
not there was constructive dismissal.
For the issue on whether or not the transfer was valid, we answer in the affirmative. An employer is
granted several inherent rights. These rights include the right to manage, the right to demote, the right
to promote, and the right to dismiss. In this case, the act of the company to transfer you is justified
considering you are employed as a security agent therefore your act of sleeping on the job constitutes
serious misconduct which is a just cause of dismissal under Article 297 [282] of the Labor Code.
On the issue of whether or not there was constructive dismissal, we answer in the negative as we do not
believe that such constructive dismissal occurred.
Article 301 [286] provides:
The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6)
months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In
all such cases, the employer shall reinstate the employee to his former position without loss of seniority
rights if he indicates his desire to resume his work not later than one (1) month from the resumption of
operations of his employer or from his relief from the military or civic duty
DO 150-16 provides under Section 10.3:

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Reserved Status. A security guard and other private security personnel may be placed in a work pool or
reserved status….. If after a period of 6 months, the SSC/PSA cannot provide work the latter can be
separated from service.
Furthermore, the Court has ruled that when a security guard is placed on a ‘floating status’” he or she
does not receive any salary or financial benefit provided by law. x x x” (Exocet Security and Allied
Services Corporation vs. Serrano, G. R. No. 198538, September 29, 2014)
In your case, only 3 months had elapsed prior to your seeking employment elsewhere. Hence, such
drastic action, although understandable, was premature. We, therefore, conclude that no constructive
dismissal had occurred.
In conclusion, we regret to advise you that you do not have a cause of action for illegal dismissal against
your previous employer, Isog Security Agency. Their actions were justified and there was no constructive
dismissal.
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[405-November 27]
I own two (2) tourist private buses, which I use during special occasions when there is a huge influx of
foreigners visiting Cebu City during Christmas holidays. My drivers are paid a fixed monthly salary of
Php10,000. I was thinking of fixing their employment contract for one (1) month only, from December 1
until December 31 but they will be made to work for a maximum period of 12 hours daily. Please advise
if this employment arrangement is legally viable.
SUGGESTED ANSWER:
Yes, this employment is legally viable. Your drivers are made to work tasks that are usually necessary
and desirable in your bus company as bus drivers.
However, in the case of Brent School vs. Zamora (GR No. L-48494), the fixed period of employment must
be knowingly and voluntarily agreed upon by you and your drivers without any force or duress.
Secondly, consent must be freely given by your drivers. Finally, there must be the the absence of any
moral dominance by the company or the drivers. If these elements are present, then the employment
shall be classified as a fixed-term employment, which is allowed.
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[405-November 27]
John, Jorge and Joy are employed as gardener, helper and maintenance worker, respectively, by a
specialized service provider operating in Cebu City. They have been employed for more than one year of
continuous service, having been assigned to various business companies. They were however
considered as mere casual employees even at present. Is this employment arrangement lawful?
SUGGESTED ANSWER:
No, it is not lawful for they are not casual employees in the eyes of the law but are already regular
employees of the concerned specialized service provider.
JMM SAYS HI!
Considering the provision of the Article 295 of the Labor Code, there are two kinds of regular
employees: regular employees by nature of work and regular employees by years of service. John, Jorge
and Joy are considered as regular employees under either of the kinds of regular employment.
For the first, their job or work can be considered as necessary or desirable, not really to the various
business companies you are assigned to, but actually to the specialized service provider who is their
employer.
For the second, even if their job or work is to be considered as merely incidental, all of them have
already performed such for a period exceeding 1 year which, under the Labor Code, is already
tantamount to regular employment with respect to the corresponding activities to which they are
assigned.
In conclusion, the act of treating John, Jorge and Joy as mere casual employees is not lawful. They
should be considered as regular employees.
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[405-November 27]
I am one of the workers of a beef cannery, doing packing and casing up of beef meat. I have been
working for my company since January 1, 2016. Due to the high volume of demand of canned beef meat
from Japan sometime in September 2016, I was made to sign a fixed term contract since I will be paid
double my daily wage for the duration thereof. After the expiration of my contract last December 2016,
my contract was no longer renewed or extended, and I was paid my final pay. I am presently employed
now with another company. However, I need a legal advice if I have any cause of action, and relief
against my former employer.
SUGGESTED (FINAL) ANSWER:
We realized from the facts you mentioned that you gave your express consent without force or duress.
You expressly entered into the fixed term employment contract on your own volition without moral
dominance from the employer. Thus, the contract is valid.
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[405-November 27]
John, Jorge and Joy are employed as tailors by a tailoring establishment operating in Lapu-Lapu City.
They are paid on a piece-rate basis. However, they were considered as mere casual employees even at
present although they have been working for eight (8) months already. Is this employment arrangement
lawful?
SUGGESTED ANSWER:
As regards your question on whether or not such employment arrangement is lawful, we would have to
answer on the negative. John, Jorge and Joy are employed as tailors by a tailoring establishment. As
tailors, their job would entail the performance of activities that are necessary to the business of the
establishment. According to article 295 of the Labor Code: “Regular and casual employment. The
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provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement
of the parties, an employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a specific project or undertaking the
completion or termination of which has been determined at the time of the engagement of the
employee or where the work or service to be performed is seasonal in nature and the employment is for
the duration of the season. An employment shall be deemed to be casual if it is not covered by the
preceding paragraph: Provided, That any employee who has rendered at least one year of service,
whether such service is continuous or broken, shall be considered a regular employee with respect to
the activity in which he is employed and his employment shall continue while such activity exists “ Given
the fact that their employment falls under the definition of a regular employment, they cannot be
considered as mere casual employees. As supplemented in the IRR of the Labor Code, which provides
that: “SECTION 5. Regular and casual employment xxx (b) Employment shall be deemed as casual in
nature if it is not covered by the preceding paragraph; Provided, That any employee who has rendered
at least one year of service, whether such service is continuous or not, shall be considered a regular
employee with respect to the activity in which he is employed and his employment shall continue while
such activity exists.” Therefore, a casual employment is defined by the aforementioned provision to be
the performance of a work that is merely incidental to the business of the employer. Being tailors of the
tailoring establishment, it would follow that their job is necessary to the business. Thus, it would be
unlawful to consider John, Jorge and Joy to be merely casual employees.
----------------------------------------------------------------
[405-November 27]
I am an experienced carpenter employed by a private hospital with a bed capacity of 20 beds, situated in
Metro Manila with a population of more than 1 Million. I am made to work regularly 8 hours daily
except on Sunday. After five (5) months, I was told that my services are no longer needed because the
hospital has hired an independent service provider to handle all its general and utility services including
carpentry work. I need your advice If I have any cause of action against my employer, and entitled to any
relief.
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[405-November 27]
Our company is engaged in the assembly and distribution of motor spare parts for vehicles Sometime in
May of 2016, we employed Juan as a production trainee under probation. As per policy, the
probationary period was from 3 months to a maximum of 6 months. Juan was given orientation on May
15, 2016 about a company's history, philosophy, including company standards for regularization. Juan
started working on May 27, 2016, and was assigned at the machine parts conveyors. After an evaluation,
management found the performance of Juan unsatisfactory. Hence, the company served Juan on
November 25, 2016 a notice of termination effective immediately since he failed to meet the required
JMM SAYS HI!
company standards for regularization. Did our company act in accordance with law, and if not, what is
our liability, if any?
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[402-November 27]
John, Jorge and Joy are employed as tailors by a tailoring establishment operating in Lapu-Lapu City.
They are paid on a piece-rate bases. However, they were considered as mere casual employees even at
present although they have been working for eight (8) months already. Is this employment arrangement
lawful? – no, regular employees sila kay necessary and desirable
----------------------------------------------------------------
[402-November 27]
I am one of the workers of a beef cannery, who was hired by the company as casual worker for a fixed
period of 5 months, doing packing and casing up of beef meat which were then exported to China. It is
the practice of the company for the past 10 years to hire workers under this uniformly fixed contract
basis and to replace them upon the expiration of their contracts with other workers on the same
employment duration. In fact, the main bulk of the company’s workforce consisted of casual employees,
with only a small percentage on regular and permanent employ. After the expiration of the contract last
December 1, 2016, my contract was no longer renewed or extended but I was made to sign a quitclaim,
absolving the company of any liability. I am presently employed now with another company. However, I
need a legal advice if I have any cause of action, and relief against my former employer. – regular
employees sila
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[402-November 27]
I own two (2) tourist private buses, which I use during special occasions when there is a huge influx of
foreigners visiting Cebu City during Christmas holidays. My drivers are paid a fixed monthly salary of
Php10,000. I was thinking of fixing their employment contract for one (1) month only, from December 1
until December 31 but they will be made to work for a maximum period of 12 hours daily. Please advise
if this employment arrangement is legally viable. – fixed-term?
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[402-November 27]
I am one of the workers in a large sugar cane plantation company, doing watering and weeding. For the
past five years, I was made to perform the same tasks, getting paid the minimum wage rate for
agricultural workers. Since June 1 of this year, I have been waiting to be called to work but no work is
forthcoming. I need to consult you what remedy do I have, if any, against the sugar cane plantation
company. Please advise. – constructive dismissal – no work since june 1, 6 months already, remedies:
regular employee man page 76 spectra
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JMM SAYS HI!
[402-December 7]
Our company is engaged in the assembly and distribution of motor spare parts for vehicles. Sometime
on May 1, 2017, our company offered Juan employment as a production trainee but under a two (2)
month period of probation, to start on June 1, 2017, which was the same date Juan actually started
working.
It was only three (3) days after that Juan was made to undergo a one-on-one orientation about
company's history, philosophy including company standards for regularization.
Juan's performance was first evaluated on July 1, 2017 where it was discovered that Juan falsified his
employment application by falsely representing he was a college graduate when in fact he was not. On
the same date, the company served Juan a notice of preventive suspension for 30 days without pay.
On July 6, 2017, the company served Juan a notice to explain, to which Juan immediately responded on
the same date by simply flatly denying the charges.
A formal hearing was also held on August 1, 2017 which was attended also by Juan represented by
counsel.
Before the close of office hours on August 1, 2017, the company served Juan with a notice of
termination for failure of Juan to meet the prescribed company standards for regularization. The notice
was made effective close of office hours on August 5, 2017.
Juan contested his dismissal by raising issues on the following: a) validity of his preventive suspension; b)
validity of his dismissal; and c) violation of his statutory right to due process. Kindly advise us.
Valid dismissal – just cause (dishonesty/fraud- falsification of document)
Preventive suspension – not valid, poses threat to life and property, with pay
violation of his statutory right to due process
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[402-December 7]
Sometime on May 1, 2017, I was offered a six (6) months probationary employment as Sales and
Marketing Manager by a company engaged in the assembly, distribution and sale of motorcycles. Three
months after, I was served with a notice of termination for my poor performance when I failed to meet
my sales quota for the past three (3) months. Did my employer act in accordance with law? Why or why
not? yes probationary employment for 6 months
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[402-December 7]
JMM SAYS HI!
Sometime on May 1, 2017, I was offered a regular employment contract as Marketing Manager for a
company engaged in the assembly, distribution and sale of motorcycles. Three months after, I was
served with a notice of termination for alleged conflict of interest amounting to loss of confidence after
my employer discovered that I was a majority stockholder, and Chairman of the Board of a rival
company which was likewise engaged in the same line of business as my employer. Did my employer act
in accordance with law? Why or why not? No, because breach of trust-confllict of trust, requisites of loss
confidence not complied with, due process, just cause not followed
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[402-December 7]
Our company is engaged in the assembly, distribution and sale of used motorcycles. Sometime on May
1, 2017, our company offered a regular employment to Juan as a production trainee under a three (3)
month period of probation. One (1) month after Juan started working, he was made to undergo a one-
on-one orientation about company’s history, philosophy including company standards for regularization.
On July 1, 2017, Juan was served a notice to explain for gross neglect of duty when Juan failed to shut
down an assembly machine he was working on, resulting to damage to company’s property amounting
to almost half a million pesos. In his explanation, Juan flatly denied the charges against him. Without
conducting a hearing, the Company served Juan a notice of termination effective immediately upon his
receipt. Did the company act in accordance with law? Why or why not? No, due process not followed-
hearing was missed, also at the time of engagement not 1 month
----------------------------------------------------------------
[402-December 7]
My friend has been operating his restaurant business for the past 20 years. As he was getting already
old, he decided to spend the rest of his life traveling abroad, and to sell his business. I agreed to buy his
business for a valuable consideration and this includes the building, premises, tools, facilities and
equipment.
I need your legal advice if I am obliged to hire and employ all the restaurant managers and employees of
my friend. Please advise. – no, principle of absorption – where such transfer of ownership is in good
faith, the transferee is under no legal duty to absorb the transferor’s employees as there is no law
compelling such absorption. The most that the transferee may do, for reasons of public policy and social
justice, is to give preference to the qualified separated employees in the filling of vacancies in the
facilities of the purchaser. Page 913 azucena
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[402-December 7]
Sometime on May 1, 2017, I was offered a casual employment by a company engaged in the assembly,
distribution and sale of motorcycles as Chief Cook of its company-owned canteen. Three (3) months
after, I was served with a notice terminating my employment since the Company decided to outsource
its canteen operation to a concessionaire. I was not afforded any ample opportunity to be heard. Can I
demand payment of separation pay and indemnity for damages from my employer? Why or why not?
JMM SAYS HI!
----------------------------------------------------------------
[402-December 7]
time zones. All our clients are located in USA, which observes federally mandated holidays that are
more than one year.
We received notice from our clients that for one (1) week effective on December 14, 2017, they will be
temporarily closed and would not need our services. I need legal advice and guidance immediately
whether we can legally carry out our clients' directive without violating our employees' labor rights, if
any, and how to proceed with it.- bona fide suspension
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[402-December 7]
Sometime on May 1, 2017, I was offered a project employment contract as Marketing Associate in
connection with the launching of the company’s new brand of motorcycle. My employer is engaged in
the assembly, distribution and sale of motorcycles. One (1) month after the completion and successful
launching, I was again offered employment but this time as Assembler under a one (1) month period of
probation where I was made to undergo a one-on-one orientation about company’s history, philosophy
including company standards for regularization.
Five (5) days before the end of the period of probation, I was served with a notice of termination for
failure to qualify as a regular employee without conducting any hearing at all. Did the company act in
accordance with law? Why or why not?
----------------------------------------------------------------
[402-December 7]
I am employed with a fast food delivery service as service and delivery crew. In one of my trips, I figured
in a vehicular accident when my motorcycle was bumped by a truck from behind while I was swerving to
my left to make a U-turn. I knew it was my fault when I swerved to my left as I was in a hurry to make a
u-turn to avoid a heavy traffic. My employer talked to me and offered me to either resign or face
administrative investigation for gross negligence. With a heavy heart, I tendered my resignation which
my employer graciously accepted immediately.
I need your advice if I have any cause of action against my employer for constructive dismissal. –
involuntary resignation vitiated consent
----------------------------------------------------------------
[402-December 7]
JMM SAYS HI!
Our company is a beef cannery, where majority of our workers are doing manual packing and casing up
of beef meat which are exported to China. Miguel who is one of my regular manual workers recently
contracted viral skin diseases. I immediately asked Miguel to secure a certification from a public health
hospital if his disease is curable or not. After a week, Miguel failed to provide me with such certification
as he wanted to keep his job.
I issued a notice of preventive suspension to Miguel for 30 days without pay, and five days after, I asked
him to explain why he should not be dismissed for his disease. Miguel still refused to answer. Please
advise me whether I acted in accordance with law and how I shall proceed to be legally compliant.
Employer to secure certification
Preventive suspension not proper

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Probationary Employment Contract

Date: EMPLOYEE: Address: Dear Employee:

Very truly yours,

Mr. Juan dela Cruz

Cruz School of Geniuses

Brgy. Banilad, Cebu City

EMPLOYEE [3] QUESTION

2. The decision was made in good faith; and

You have complied with all these requisites.

1. The union security clause is applicable;

If you were the Med-Arbiter, will you grant the petition?

The subsequent CBA to be effective on January 1, 2011 to

December 15, 2015

DOLE Regional Office

Beefy Meat Company

December 15, 2015

Cebu City/ Mandaue City

We will immediately inform you if the operations have already resumed.

President Beefy Meat Company

Did management act legally? Please advise.

As regards to your question:

Yes, the management acted legally.

2. The activity must be agricultural.

1. Absence without justifiable or valid reason

Hope this answers your concerns.

If I admit them back, am I liable for illegal dismissal?

First, the period of suspension must not be exceeding six months.

The following jurisprudence shall shed light on the matter:

Below is a sample of notice of dismissal.

DRAFT NOTICE OF DISMISSAL

November 28, 2016

Private and confidential

Mr. Juan Dela Cruz

100 Junquera St., Cebu City

Dear Mr Juan Dela Cruz;

We wish you well in your future endeavors.

Very Truly Yours,

Toyota Motor Parts Company

d. Not teach full-time in any other educational institution.

3. QUALIFICATIONS FOR REGULARIZATION

[Name of Employer Rep]

Can preventive suspension be used if the ground for dismissal is disease?

This is in response to your request for clarifications on our previous reply.

Did management act in accordance with law? Please advise.

Yes, the management acted in accordance with law.

Thus, you have a cause of action against your employer.

Article 301 [286] provides:

DO 150-16 provides under Section 10.3:

SUGGESTED (FINAL) ANSWER:

Valid dismissal – just cause (dishonesty/fraud- falsification of document)

violation of his statutory right to due process

Employer to secure certification

Preventive suspension not proper

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