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Q: Who are criminally liable for illegal recruitment under the Migrant Worker’s
Law?
A: Principals, accomplices and accessories. In case of juridical persons, the officers
having control, management or direction of their business shall be liable. An employee
may be held liable if it is shown that he actively and consciously participated in the
recruitment process.
A: NO. For the purpose of applying the provisions of the Labor Code on who may join
unions of the rank-and-file employees, jurisprudence defines "confidential employees" as
those who "assist or act in a confidential capacity to persons who formulate, determine,
and effectuate management policies in the field of labor relations."
However, for the purpose of applying the Labor Code provision on loss of confidence as
a just cause for the dismissal of an employee, jurisprudence teaches that: Loss of
confidence should ideally apply only to cases involving employees occupying positions
of trust and confidence or to those situations where the employee is routinely charged
with the care and custody of the employer's money or property. As stated early on,
Michael’s duties included purchasing supplies and equipment of the corporation. He thus
regularly handled significant amounts of money and property in the normal and routine
exercise of his functions. His position was thus one of trust and confidence, loss of which
is a just cause for dismissal. (MICHAEL V. SANTOS vs. SHING HUNG PLASTICS, CO.,
INC. and NLRC. G.R. No. 172306. September 29, 2008)
A: T can seek a second opinion. The right of a seafarer to seek a second opinion is
recognized by the POEA Standard Employment Contract of 2000, the CBA governing
the relationship between Talavera and Nyk-Fil, and jurisprudence. While it is the
company-designated physician who must declare that the seaman suffers a permanent
disability during employment, it does not deprive the seafarer of his right to seek a
second opinion, hence, the Contract recognizes the prerogative of the seafarer to request a
second opinion and, for this purpose, to consult a physician of his choice. (NYK-FIL
SHIP MANAGEMENT INC., ET. AL., vs. ALFONSO T. TALAVERA. G.R. No. 175894.
November 14, 2008)
Q: In the previous problem, N Co. further argues that the injuries incurred by T are
not work-related. Is this argument valid?
A: T’s illness or injury is compensable. For disability to be compensable under Section
20 (B) of the 2000 POEA Standard Employment Contract, it must be the result of a work-
related injury or illness. It defines "work-related injury" as "injury(ies) resulting in
disability or death arising out of and in the course of employment" and "work-related
illness" as "any sickness resulting to disability or death as a result of an occupational
disease listed under Section 32-A of this contract with the conditions set therein
satisfied." Compensability of an ailment does not depend on whether the injury or disease
was pre-existing at the time of the employment but rather if the disease or injury is work-
related or aggravated his condition
A: NO. They are employees of the hospital. Under the "control test", an employment
relationship exists between a physician and a hospital if the hospital controls both the
means and the details of the process by which the physician is to accomplish his task. In
the case at hand, the complainants maintained specific work-schedules, as determined by
the hospital through its medical director, which consisted of 24-hour shifts totaling forty-
eight hours each week and which were strictly to be observed under pain of
administrative sanctions. That the hospital exercised control over them gains light from
the undisputed fact that in the emergency room, the operating room, or any department or
ward for that matter, their work is monitored through its nursing supervisors, charge
nurses and orderlies. (CALAMBA MEDICAL CENTER, INC., vs. NLRC ET. AL.,
G.R. No. 176484. November 25, 2008)
x x x Her employment record was marred by numerous infractions of Company rules for
which she was repeatedly sanctioned by her superiors, to wit: a written warning for
failing to report for work; a three-day suspension for incurring several absences; two (2)
verbal warnings and a written warning among others for incurring a cash shortages.
This was deemed as a desultory attempt to justify the illegal dismissal of the said
employee. Previous infractions, in other words, may be used if they have a bearing on the
proximate offense warranting dismissal. No such bearing exists, however, between the
above-detailed alleged infractions with respondent’s meal policy
violation. (MCDONALD'S (KATIPUNAN BRANCH) and/or MCGEORGE FOOD
INDUSTRIES, INC., vs. MA. DULCE ALBA,
G.R. No. 156382. December 18, 2008)
X x X
Q: State whether the following policies of A Company violate the right against
discrimination. Explain.
A: A. The blanket policy disqualifying from work any woman who contracts marriage
violates the right against discrimination afforded all women workers under Art. 136
of the Labor Code. However, a requirement that a woman employee must remain
unmarried could be justified as a “bona fide occupational qualification” whether the
particular requirement of the job would justify the same, but not on the ground of a
general principle, such as the desirability of spreading work in the work place. A
requirement of that nature would be valid provided it reflects an inherent quality
reasonably necessary for satisfactory job performance [ PT&T Co. v. NLRC, G.R. No,
118978, May 23, 1997].
Q: What is redundancy and what criteria may an employer use in determining who to
lay-off in its redundancy program?
A. Redundancy exists when the service capability of the work force is in excess of what
is reasonably needed to meet the demands of the business enterprise, as held in the case
of Dusit Hotel Nikko vs. National Union of Workers in Hotel, restaurant and Allied
industries (NUWHRAIN)-Dusit Hotel Nikko Chapter, (466 SCRA 374).
Q: Is it required for a worker to lose the use of any part of his body to be considered
as permanently disable within the meaning of the POEA Standard Employment
Contract?
A: No. Permanent disability is the inability of a worker to perform his job for more than
120 days, regardless of whether he loses the use of any part of his body. The law does not
require that the illness should be incurable. What is important is that he was unable to
perform his customary work for more than 120 days which constitutes permanent total
disability.
Q: Company R adopted an upgraded salary scale that increased the hiring rates of
new employees without increasing the salary rates of old employees. Is there wage
distortion in this case?
A: None. To determine the existence of wage distortion, the "historical" classification of
the employees prior to the wage increase must be established. It must be shown that as
between the different classification of employees, there exists a "historical" gap or
difference. In this case, the employees have been "historically" classified into levels and
not on the basis of their length of service. The entry of new employees to the company
ipso facto places them under any of the levels in the new salary scale adopted. It is a
recognized management prerogative of formulating a wage structure.
Q: Good Friday and Araw ng Kagitingan falls on the same day. How much is M
entitled to receive if she works on that day?
A: 200% of his basic wage. Article 94 of the Labor Code, as amended, affords a worker
the enjoyment of ten paid regular holidays. The fact that two holidays falls on the same
day should not operate to reduce to nine the ten holiday pay benefits a worker is entitled
to receive. (Asian Transmission Corporation v CA. G.R. 144664. March 15, 2004)