Sect. 32. Terms of collective agreement.

(1) A collective agreement shall -

(a) be in writing and signed by the parties to the agreement;

(b) contain the date on which it is to become effective;

(c) contain procedures for the avoidance and settlement of

disputes arising out of the interpretation, application and
administration of the agreement, which may include a
reference to conciliation or arbitration;

(d) provide for such other matters as may be agreed between

the parties.

(2) The provisions of collective agreements shall not be less

advantageous to employees than the provisions of this Act or
regulations made thereunder.

Sect. 33. Enforceability of collective agreements.

(1) A collective agreement is binding upon -

(a) the parties to the agreement;

(b) the employees who are or become members of a trade
union party to the agreement to the extent that the agreement
relates to them;

(c) the employers who are or become members of an

employers organization party to the agreement to the extent
that the agreement relates to their employees.

(2) The terms of the collective agreement are deemed to be

incorporated into the employment contract of each employee
who is covered by the collective agreement.

(3) Nothing in this Part shall effect the validity of a collective

agreement in force immediately prior to the coming into force
of this Act, and such agreement shall remain in force until it
expires or is replaced by another collective agreements.

Sect. 34. Submission of collective agreements. The parties to

a collective agreement shall deposit a copy of the collective
agreement with the registrar.

[Malawi, Labour Relations Act, 1996]

Sect. 43. Form and content of collective agreements. A

collective agreement shall -
(a) be in writing and signed by the parties to the agreements,

(b) specify the bargaining unit to which it applies;

(c) specify the date on which it is to become effective;

(d) unless the parties have in another collective agreement

made such provision, contain procedures for the settlement of
disputes between the parties regarding the interpretation,
application and administration of the agreements; and

(e) provide for such other matters as are agreed between the
parties.

Sect. 45, Termination of agreement of indefinite duration

Unless the collective agreement otherwise provides, any party

to a collective agreement that was concluded for an indefinite
duration may terminate the agreement after it has been in
effect for two years by giving reasonable notice to the other
parties.

Sect. 46. Effect of collective agreements.

a collective agreement binds -

(a) the parties to the agreement or members of an industrial
council that concluded the agreements,

(b) all members of any organization party to the agreement or

member of an industrial council that concluded the agreement,
to the ext that the agreement relates to them

(c) all employees in a bargaining unit covered by the agreement

if a part to the agreement has been recognized or certified as
the sole bargaining agent for the unit in accordance with this
part or of any enterprise or workplace covered by an industrial
council that concluded the agreement to the extent that the
agreement relates to them.

The terms of a collective agreement to the extent that they are

applicable, shall be deemed to be incorporated into the
employment contract between an employee and an employer
who are covered by the agreement and to amend or replace
any term of that contract that is in conflict with the agreement.

Sect. 47. Relationship between collective agreements and laws

and regulations.

(1) Collective agreements shall not contain provisions less

favourable to employees than legislative provisions or
regulations unless and to the extent that the legislation or
regulations so provide.

(2) [...] Sect. 48. Extension of collective agreements.

(1) The parties to a multi-employer collective agreement may
jointly apply to the Tribunal to make the agreement or certain
of its provisions binding upon employers and employees not
otherwise subject to the agreement if -

(a) the employers and employees to which the agreement is to

be extended are engaged in an activity of the same kind as that
carried out by those covered by the agreement;

(b) the parties to the agreement are sufficiently representative

of employers and employees in the activity concerned.

(2) On receipt of such application, the Tribunal shall refer the

matter to the Commission [the body to be responsible for
determining representativeness] for a determination of
whether the conditions specified in subsection (1) are met and
the Commission shall report its findings to the Tribunal.

(3) Where the Commission determines that the conditions

specified in subsection (1) are met the Tribunal shall,

(a) consult with the employers to which the application relates

and the registered trade unions representing the employees to
which the application relates;

(b) unless it has reason to believe that it would be significantly

prejudicial to the viability of enterprises or employment in the
sector of industrial activities concerned, issue and order
extending the collective agreement to the employers and
employees concerned and where appropriate to the trade
unions concerned;

(c) specify in such order the date on which the order and
agreement shall take effect.

(4) Where the Tribunal issues and extension order under this
section, the collective agreement concerned shall apply to the
employers, employees and trade unions to which it is extended
in the same way as to the original parties to the agreement and
their members.

(5) Any employer or trade union which was not a party to the
original collective agreement and to which the extended
agreement would apply, if it believes that coverage by an
agreement would be prejudicial to the viability of, or
employment in, the enterprise or workplace concerned, may
apply to the Tribunal to have that enterprise or workplace
exempted from all or certain of its provisions.

Sect. 49. Registration of collective agreements.

(1) A collective agreement shall not e enforceable as such by

the court or Tribunal unless it is registered with the
Commission by one of the parties to it.

(2) When a collective agreement submitted for registration fails

to include any of the matters required by section [on form and
content of collective agreements] to be included, the
Commission shall provide the parties with information and
advice on the matter as it deems appropriate.

Sect. 50. Successor rights and obligations.

(1) If an enterprise or part of an enterprise is sold, leased,

transferred or otherwise disposed of, the purchaser, lessee or
transferee shall be bound by any collective agreement that was
in effect before the sale, lease, transfer or other disposition.

(2) Where a dispute before it refers to the issue of successor

rights and obligations, the Court or Tribunal may -

(a) Request the Commission to determine whether the existing

bargaining unit and bargaining agent continue to be
appropriate and if not to determine the bargaining unit and the
representativeness of the bargaining agent in accordance with
section ;

(b) Require the employer or employers' organization concerned

and the bargaining agent to meet and negotiate any differences
arising regarding the content of the agreement in force;

(c) Determine by a decision or an award, which shall be final

and binding on the parties, any remaining differences.

Sect. 51. Interpretation and enforcement.

Any dispute regarding the interpretation or application of a
registered collective agreement or its conformity with the law
or regulation may be brought by a trade union, group of trade
unions acting jointly, employer or employers' organization
party to the agreement to the Court for determination, after
having exhausted any applicable procedure provided in the
agreement. The decision of the Court shall be binding.

[ILO draft provisions for a Member country]

Chapter 1. Nature and validity of collective agreements.

Sect. 71. 1. A collective labour agreement is an agreement
relating to terms and conditions of employment and work
concluded between, on the one hand, the representatives of
one or more trade unions or occupational groupings of workers
and, on the other, one or more occupational organizations of
employers or any other grouping of employers or one or more
employers individually.

Sect. 71. 2. An agreement may contain provisions that are more

favourable to workers than those of the laws or regulations in
force. It may not derogate from the public policy provisions set
out in such laws and regulations.

Sect. 71. 3. Collective agreements shall determine their scope

of application. At the occupational level, such scope shall be
determined in terms of branches of activity. In geographical
terms, it may be national, regional or local.

Where a collective agreement covering one or more specific

branches of activity has been concluded at a particular level,
the collective agreements concluded at a lower level shall adapt
such agreement or certain of its provisions to the specific
conditions of work existing at the lower level. They may contain
new provisions and clauses that are more favourable to the
workers.

Sect. 71. 4. The representatives of trade union organizations or

of any other occupational grouping covered by the previous
section may conclude an agreement on behalf of the
organization that they represent under the terms:

- either of the rules of that organization; or

- of a special resolution of that organization; or

- of specific terms of reference conferred upon them

individually and in writing by all the members of that
organization.

In the absence of the above, to be valid, the collective

agreement must be endorsed by a special resolution of the
above grouping. The groupings concerned shall themselves
determine the procedures respecting the resolution.
Sect. 71. 5. A collective agreement shall be concluded for a
specified period of time or for an unlimited duration. Where it
is concluded for a specific period of time, this may not exceed
five years.

Unless otherwise stipulated, an agreement for a specified

period which expires shall continue to be effective in the same
way as an agreement for an unlimited duration.

An agreement for an unlimited duration may be terminated at

the will of one of the parties.

Sect. 71. 6. A collective agreement shall provide for the manner

and periods at which it may be denounced, renewed or revised.
The collective agreement shall provide, among other matters,
for the length of the period of notice which must precede its
denunciation.

Sect. 71. 7. Any occupational trade union or employer that is

not a party to a collective agreement may adhere to it
subsequently.

Sect. 71. 8. To be valid, a collective agreement must be

drawn up in French.

The conditions under which collective agreements are filed,

published and translated, and the conditions under which they
may be adhered to as envisaged in the last part of the previous
section shall be determined by regulation.
Sect. 71. 9. All persons who have signed the collective
agreement individually or who are members of signatory
organizations shall be subject to the obligations deriving
therefrom. The agreement shall also be binding upon
organizations that adhere to it and upon those persons who
become members of such organizations at any time.

Where an employer is bound by the stipulations of a collective

labour agreement, such stipulations shall apply to contracts of
employment concluded with the employer.

In any establishment covered by the scope of a collective

agreement, the provisions of such an agreement shall apply,
except where there are more favourable provisions for the
workers, to the relationships deriving from individual or
collective contracts. (…)

Chapter 3. Collective workplace agreements

Sect. 73. 1. Agreements covering one or more specific

workplaces may be concluded between, on the one hand, an
employer or group of employers and, on the other,
representatives of the trade unions representative of the staff
of the workplace or workplaces concerned.

Sect. 73. 2. The purpose of workplace agreements is to adapt to

the specific conditions of the workplace or workplaces
concerned the provisions of national, regional or local collective
agreements and, in particular, the conditions for the attribution
and calculation of piecework remuneration rates, individual and
collective production bonuses and productivity bonuses.

They may contain new provisions and provisions that are more
favourable to the workers.

The provisions of sections 71.5, 71.6, 71.8 and 71.9 shall apply
to the agreements envisaged in the present section.

(…)

Chapter 5. Implementation of collective agreements

Sect. 75. 1. Groupings of workers or of employers bound by a

collective agreement or a workplace agreement shall refrain
from any act that is liable to jeopardize its fair implementation.

They shall only be guarantors of such implementation to the

extent determined by the agreement.

Sect. 75. 2. Groupings entitled to go to law, which are bound by

a collective labour agreement or an agreement as envisaged in
section 73.1. above, may take action on their own behalf to
seek compensation against any other groupings, their own
members or any persons bound by the agreement who are in
violation of the undertakings set forth therein.
Sect. 75. 3. Persons bound by a collective agreement or an
agreement as envisaged in section 73.1. above may take action
to seek compensation against other persons or groupings
bound by the agreement which are in their regard in
contravention of the undertakings set out therein.

Sect. 75. 4. Groupings entitled to go to law, which are bound by

a collective labour agreement or an agreement as envisaged in
section 73.1. above, may take any action arising out of the
agreement in favour of their own members, without having to
justify their action by a mandate from the person concerned,
provided that the latter has been notified and has not indicated
opposition to such action. The person concerned may at all
times intervene in the body to which the grouping has referred
the matter.

Where legal action arising out of the collective agreement or

other agreement is taken either by an individual or a grouping,
any grouping entitled to go to law, of which the members are
bound by the agreement, may intervene at any time before the
body by reason of the collective interest that the resolution of
the dispute may offer for its members.
[Côte d'Ivoire, Labour Code, 1995]

Thirteen years is a quite less than the standard ideal length of

service a young employee [like herein complainant] can
render to one employer. Under average contemplation, a CBA
provision granting an employer the option to retire an
employee after thirteen years of service and consequently
collect retirement benefits is "never a reward for services
rendered since in reality it does not enable an employee to
reap the fruits of his labor but, rather, an act of oppression
against him perpetrated by his employer. In contemplation of
law, it is a deprivation of property without due process of law.
It should be taken to mean that retirement provisions agreed
upon in the CBA are absolutely within the ambit of judicial
review and nullification. A CBA, as a labor contract, is not
merely contractual in nature but impressed with public
interest. If the retirement provisions in the CBA run contrary
to law, public morals, or public policy, such provisions may
very well be voided. Certainly, a CBA provision or employment
contract that would allow management to subvert security of
tenure and allow it to unilaterally "retire" even young and
able employees after thirteen (13) years of service cannot be
upheld. Neither will our court of justice sustain a retirement
clause that entitles the retiring employee to benefits less than
what is guaranteed under Article 287 of the Labor Code,
pursuant to the provision’s express proviso thereto in the
provision.
Article 287 of the Labor Code, as amended, governs retirement
of employees, stating:
“ART. 287. Retirement. – Any employee may be retired upon
reaching the retirement age established in the collective
bargaining agreement or other applicable employment
contract.
“In case of retirement, the employee shall be entitled to receive
such retirement benefits as he may have earned under existing
laws and any collective bargaining agreement and other
agreements: Provided, however, That an employee’s
retirement benefits under any collective bargaining agreement
and other agreements shall not be less than those provided
herein. (underlining supplied for emphasis)
“In the absence of a retirement plan or agreement providing for
retirement benefits of employees in the establishment, an
employee upon reaching the age of sixty (60) years or more,
but not beyond sixty-five (65) years which is hereby declared
the compulsory retirement age, who has served at least five (5)
years in the said establishment, may retire and shall be entitled
to retirement pay equivalent to at least one-half (1/2) month
salary for every year of service, a fraction of at least six (6)
months being considered as one whole year.”
LABOR LAW
LHDC AND ABV VS. ESQUILLO DIGEST
DECEMBER 21, 2016 ~ LEAVE A COMMENT
LHDC AND ABV VS. ESQUILLO

G.R. No. 152012

SEPTEMBER 30, 2005

FACTS: Esquillo was hired as a structural engineer by ABV Rock

Group based in Jeddah. The Land & Housing Development
Corporation, a local placement agency, facilitated respondent’s
employment papers.

Respondent’s employment contract was pre-terminated,

allegedly, for the reason, ‘reduction of force.’ Respondent
subsequently received an amount from ABV, as final
settlement of his claims and was issued an exit visa that
required him to immediately go back to the Philippines.

“As a result of the foregoing, respondent filed a complaint for

breach of contract and/or illegal dismissal, before the POEA
which was referred to the NLRC.

The Labor Arbiter issued his Decision, ordering [petitioners]

jointly and severally to pay Esquillo his salaries corresponding
to the unexpired portion of his contract. “When [petitioners]
filed their joint appeal, the NLRC reversed the aforecited
decision and dismissed the [respondent’s] complaint for lack of
merit. [Respondent’s] MR was denied in a Resolution,

The CA ruled that despite the absence of a written categorical

objection to the sufficiency of the payment received as
consideration for the execution of the quitclaim, jurisprudence
supported the right of respondent to demand what was
rightfully his under our labor laws. Hence, he should have been
allowed to recover the difference between the amount he had
actually received and the amount he should have received. The
CA also found that the NLRC had erroneously applied RA 8042
to the case. The appellate court held that respondent was
entitled to the salaries corresponding to the unexpired portion
of his Contract, in addition to what he had already received.
Hence, this Petition.

ISSUE: WON Respondent, despite having executed a quitclaim,

is entitled to a grant of his additional monetary claims.

HELD: WHEREFORE, the Petition is DENIED and the assailed

Decision and Resolution AFFIRMED.

YES

**At the outset, the Court notes the Manifestation of the OSG,
recommending that “the decision of the NLRC be annulled and
set aside and that Esquillo be awarded the total amount of his
salaries corresponding to the unexpired portion of his contract
of employment**
Petitioners claim that the foregoing Release and Quitclaim has
forever released them from “any and all claims, demands, dues,
actions, or causes of action” arising from respondent’s
employment with them.

Unfortunately for petitioners, jurisprudence does not support

their stance. The fact that employees have signed a release
and/or quitclaim does not necessarily result in the waiver of
their claims. The law strictly scrutinizes agreements in which
workers agree to receive less compensation than what they are
legally entitled to.

“Along this line, we have more trenchantly declared that

quitclaims and/or complete releases executed by the
employees do not estop them from pursuing their claims
arising from unfair labor practices of the employer. The basic
reason for this is that such quitclaims and/or complete releases
are against public policy and, therefore, null and void. The
acceptance of termination does not divest a laborer of the right
to prosecute his employer for unfair labor practice acts.

To determine whether the Release and Quitclaim is valid, one

important factor that must be taken into account is the
consideration accepted by respondent; the amount must
constitute a “reasonable settlement.” The NLRC considered the
amount of US$6,716 or SR23,153 reasonable, when compared
with (1) $3,900, the three-month salary that he would have
been entitled to recover if RA 8042 were applied; and (2)
US$9,447, his salaries for the unexpired portion of his Contract.

It is relevant to point out, however, that respondent was

dismissed prior to the effectivity of RA 8042. As discussed at
the outset, he is entitled to his salaries corresponding to the
unexpired portion of his Contract. For these reasons, the
consideration stated in the Release and Quitclaim cannot be
deemed a reasonable settlement; hence, that agreement must
be set aside.

NOTES:

Indeed, an employee cannot be dismissed except for cause, as

provided by law, and only after due notice and hearing.
Employees who are dismissed without cause have the right to
be reinstated without loss of seniority rights and other
privileges; and to be paid full back wages, inclusive of
allowances and other benefits, plus proven damages.
With regard to contract workers, in cases arising before the
effectivity of RA 8042 (the Migrant Workers and Overseas
Filipinos Act), it is settled that if “the contract is for a fixed term
and the employee is dismissed without just cause, he is entitled
to the payment of his salaries corresponding to the unexpired
portion of his contract.” In the present case, the Contract of
respondent was until July 26, 1995. Since his dismissal from
service effective December 18, 1994, was not for a just cause,
he is entitled to be paid his salary corresponding to the
unexpired portion of his Contract
PEPSI AND GOCHUICO vs. SANTOS DIGEST
DECEMBER 21, 2016 ~ LEAVE A COMMENT
G.R. No. 165968 April 14, 2008

PEPSI COLA PRODUCTS PHILIPPINES, INC. AND ERNESTO F.

GOCHUICO, petitioners,
vs.
EMMANUEL V. SANTOS, respondent.

FACTS: Respondent Emmanuel V. Santos was employed by

petitioner Pepsi Cola Products Phils., Inc. sometime in July
1989. In March 1996, he was promoted as Acting Regional Sales
Manager at the Libis Sales Office.

On February 14, 1997, respondent received from petitioner

Ernesto F. Gochuico a memorandum4 charging him with
violation of company rules and regulations and Article 282(a)5
of the Labor Code (see notes below).

The charges arose out of alleged artificial sales by the sales

personnel of the Libis Sales Office in March 1996 allegedly upon
the instruction of respondent. The alleged artificial sales
resulted in damage to petitioners amounting to P795,454.54.
The memorandum also apprised respondent of his preventive
suspension and the scheduled hearings of the administrative
investigation.

After the termination of the hearings, petitioners found

respondent guilty of the aforesaid charges with the exception
of falsifying company records. As a result, respondent was
dismissed on June 27, 1997.

DEVELOPMENT OF THE CASE: Respondent filed a case for illegal

dismissal which the Labor Arbiter dismissed. On appeal, the
NLRC remanded the case to the Labor Arbiter for further
proceedings.

Labor Arbiter’s Decision: that petitioners failed to satisfactorily

prove the serious charges against respondent. The only
relevant evidence adduced by petitioners was the notice of
termination which narrated what happened during the
administrative investigation.

xxxx and attorney’s fees equivalent to ten (10) percent of the

above monetary award (345K).

Petitioner appealed with NLRC, sustained with some

modifications, deleting the award of exemplary (50K) and moral
damages (100K); CA affirmed.

ISSUES: WON the award of attorney’s fees was proper (other

issues see notes below)

HELD: NO

Petitioners finally dispute the award of attorney’s fees since it is

only allowed in case of unlawful withholding of wages.
We have ruled that attorney’s fees may be awarded only when
the employee is illegally dismissed in bad faith and is compelled
to litigate or incur expenses to protect his rights by reason of
the unjustified acts of his employer.

In this case, the NLRC deleted the award of moral and

exemplary damages precisely because of the absence of
evidence that respondent’s suspension and eventual dismissal
were tainted with bad faith and malice.

We note that although the Labor Arbiter awarded attorney’s

fees, the basis for the same was not discussed in the decision
nor borne out by the records of this case. There must always be
a factual basis for the award of attorney’s fees. This is
consistent with the policy that no premium should be placed on
the right to litigate. For these reasons, we believe and so rule
that the award of attorney’s fees should be deleted.

Petition partially granted, attorney’s fees deleted.

________________

NOTES:

Group III FRAUD AND ACTS OF DISHONESTY

12 Falsifying company records or documents or knowingly using
falsified records or documents.
8 Breach of trust and confidence.
4 Engaging in fictitious transactions, fake invoicing, deals
padding and other sales malpractices.
5 Misappropriation or embezzlement of company funds or
property and other acts of dishonesty.
Article 282 (a) Serious misconduct or willful disobedience to the
lawful orders of his employer.

WON respondent was validly dismissed: Not being a trier of

facts, the Court cannot re-examine and re-evaluate the
probative value of evidence presented to the Labor Arbiter, the
NLRC, and the Court of Appeals, which formed the basis of the
questioned decision; found no compelling reason to disturb the
uniform findings and conclusions of the Labor Arbiter, the
NLRC, and the Court of Appeals. In an illegal dismissal case, the
onus probandi rests on the employer to prove that its dismissal
of an employee is for a valid cause.16 In the instant case,
petitioners failed to present evidence to justify respondent’s
dismissal.
WON a trial on the merits was necessary: The holding of a
formal hearing or trial is discretionary with the Labor Arbiter
and is something that the parties cannot demand as a matter of
right. The requirements of due process are satisfied when the
parties are given the opportunity to submit position papers
wherein they are supposed to attach all the documents that
would prove their claim in case it be decided that no hearing
should be conducted or was necessary.
DUNCAN ASSOC OF DETAILMAN-PTGWO and TECSON vs.
GLAXO WELLCOME PHILS DIGEST
DECEMBER 21, 2016 ~ LEAVE A COMMENT
G.R. No. 162994 September 17, 2004

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A.

TECSON, petitioners,
vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.

FACTS: Petitioner Pedro A. Tecson (Tecson) was hired by

respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as medical
representative on October 24, 1995, after Tecson had
undergone training and orientation.

Thereafter, Tecson signed a contract of employment which

stipulates, among others, that he agrees to study and abide by
existing company rules; to disclose to management any existing
or future relationship by consanguinity or affinity with co-
employees or employees of competing drug companies and
should management find that such relationship poses a
possible conflict of interest, to resign from the company. Code
of Conduct of Glaxo similarly provides these conditions; that
otherwise, the management and the employee will explore the
possibility of a “transfer to another department in a non-
counterchecking position” or preparation for employment
outside the company after six months.
Tecson was initially assigned to market Glaxo’s products in the
Camarines Sur-Camarines Norte sales area. Subsequently,
Tecson entered into a romantic relationship with Bettsy, an
employee of Astra Pharmaceuticals3(Astra), a competitor of
Glaxo. Bettsy was Astra’s Branch Coordinator in Albay. She
supervised the district managers and medical representatives
of her company and prepared marketing strategies for Astra in
that area.

Even before they got married, Tecson received several

reminders from his District Manager regarding the conflict of
interest which his relationship with Bettsy might engender. Still,
love prevailed, and Tecson married Bettsy in September 1998.

Tecson’s superior reminded him that he and Bettsy should

decide which one of them would resign from their jobs. Tecson
requested for time to comply with the company policy against
entering into a relationship with an employee of a competitor
company. He explained that Astra, Bettsy’s employer, was
planning to merge with Zeneca, another drug company; and
Bettsy was planning to avail of the redundancy package to be
offered by Astra.

Tecson again requested for more time resolve the problem.

Thereafter, Tecson applied for a transfer in Glaxo’s milk
division, thinking that since Astra did not have a milk division,
the potential conflict of interest would be eliminated. His
application was denied in view of Glaxo’s “least-movement-
possible” policy.
Glaxo transferred Tecson to the Butuan City-Surigao City-
Agusan del Sur sales area. Tecson asked Glaxo to reconsider its
decision, but his request was denied. Tecson defied the transfer
order and continued acting as medical representative in the
Camarines Sur-Camarines Norte sales area.

DEVELOPMENT OF THE CASE: Because the parties failed to

resolve the issue at the grievance machinery level, they
submitted the matter for voluntary arbitration, but Tecson
declined the offer. On November 15, 2000, the National
Conciliation and Mediation Board (NCMB) rendered its Decision
declaring as valid Glaxo’s policy on relationships between its
employees and persons employed with competitor companies,
and affirming Glaxo’s right to transfer Tecson to another sales
territory.

CA sustained; MR denied.

Petitioner’s Contention: that Glaxo’s policy against employees

marrying employees of competitor companies violates the
equal protection clause of the Constitution because it creates
invalid distinctions among employees on account only of
marriage. They claim that the policy restricts the employees’
right to marry; that Tecson was constructively dismissed

GLAXO argues: that the company policy prohibiting its

employees from having a relationship with and/or marrying an
employee of a competitor company is a valid exercise of its
management prerogatives and does not violate the equal
protection clause;
The policy is also aimed at preventing a competitor company
from gaining access to its secrets, procedures and policies; that
Tecson can no longer question the assailed company policy
because when he signed his contract of employment, he was
aware that such policy was stipulated therein.

ISSUE: WON Glaxo’s policy against its employees marrying

employees from competitor companies is valid

HELD: The Court finds no merit in the petition.

Glaxo has a right to guard its trade secrets, manufacturing

formulas, marketing strategies and other confidential programs
and information from competitors, especially so that it and
Astra are rival companies in the highly competitive
pharmaceutical industry.

The prohibition against personal or marital relationships with

employees of competitor companies upon Glaxo’s employees is
reasonable under the circumstances because relationships of
that nature might compromise the interests of the company. In
laying down the assailed company policy, Glaxo only aims to
protect its interests against the possibility that a competitor
company will gain access to its secrets and procedures.

That Glaxo possesses the right to protect its economic interests

cannot be denied. No less than the Constitution recognizes the
right of enterprises to adopt and enforce such a policy to
protect its right to reasonable returns on investments and to
expansion and growth.

Indeed, while our laws endeavor to give life to the

constitutional policy on social justice and the protection of
labor, it does not mean that every labor dispute will be decided
in favor of the workers. The law also recognizes that
management has rights which are also entitled to respect and
enforcement in the interest of fair play.21

EQUAL-PROTECTION: Glaxo does not impose an absolute

prohibition against relationships between its employees and
those of competitor companies. Its employees are free to
cultivate relationships with and marry persons of their own
choosing. What the company merely seeks to avoid is a conflict
of interest between the employee and the company that may
arise out of such relationships.

Moreover, records show that Glaxo gave Tecson several

chances to eliminate the conflict of interest brought about by
his relationship with Bettsy.

PETITION DENIED.

______________

Other Issue on Constructive dismissal:

The Court finds no merit in petitioners’ contention that Tescon
was constructively dismissed when he was transferred from the
Camarines Norte-Camarines Sur sales area to the Butuan City-
Surigao City-Agusan del Sur sales area, and when he was
excluded from attending the company’s seminar on new
products which were directly competing with similar products
manufactured by Astra. Constructive dismissal is defined as a
quitting, an involuntary resignation resorted to when continued
employment becomes impossible, unreasonable, or unlikely;
when there is a demotion in rank or diminution in pay; or when
a clear discrimination, insensibility or disdain by an employer
becomes unbearable to the employee.30 None of these
conditions are present in the instant case.

UKCEU-PTGWO versus KIMBERLY – CLARK PHILS DIGEST

DECEMBER 21, 2016 ~ LEAVE A COMMENT
UNITED KIMBERLY-CLARK EMPLOYEES UNION – PHILIPPINE
TRANSPORT GENERAL WORKERS’ ORGANIZATION (UKCEU-
PTGWO), Petitioner, versus KIMBERLY – CLARK PHILIPPINES,
INC., Respondent., G.R. No. 162957, 2006 Mar 6,

FACTS:

United Kimberly-Clark Employees Union (UKCEU), a local

chapter affiliate of the Philippine Transport General Workers’
Organization (PTGWO), is the certified collective bargaining
agent of all rank-and-file employees of the San Pedro milling
plant of Kimberly-Clark Philippines, Inc. (KCPI), a multinational
corporation engaged in the manufacture of bathroom and
facial tissues, paper napkins, feminine care products,
disposable diapers and absorbent cotton.

In 1980, KCPI and the UKCEU executed a CBA which essentially

states that the Company agrees to employ, regardless of sex,
the immediate member of the family of an employee provided
qualified, upon the employee’s resignation, retirement,
disability or death. The phrase “immediate member of the
family of an employee” referred to the employee’s legitimate
children and in default thereof to the employee’s collateral
relative within the third civil degree. The recommendee of the
retired/resigned employee shall, if qualified, be hired on
probationary status. But the KCPI did not set any other
qualifying standards for the recommendees of retired,
resigned, deceased or disabled employees and agreed to hire
such recommendees who were high school graduates as an act
of liberality and generosity. The provision remained
unchanged.

November 7, 1995, KCPI issued Guidelines on the Hiring of

Replacements of Retired/Resigned Employees. The Guidelines
require, among others, that: (a) such recommendees must be
at least 18 years of age but not more than 30 years old at the
time of the hiring, and (b) have completed, after graduating
from high school, at least a two-year technical/vocational
course or a third year level of college education

During the negotiation for the new 1997 CBA, UKCEU proposed
the amendment of Article XX, Section 1 (concerning the
recommendation of relatives as replacement of former
employees) of the CBA. After the negotiation, KCPI and UKCEU
executed a CBA to cover the period from July 1, 1997 to June
30, 1999. The educational qualifications contained in the
Guidelines were not incorporated in the CBA. CBA was retained
without any modification. KCPI continued to hire employees
pursuant to the CBA up to 1998.

In the second half of 1998, KCPI started to suspend the

implementation of the CBA. This was partly due to the
depressed economic conditions then prevailing in the
Philippines, and in compliance with the freeze hiring policy of
its Asia-Pacific headquarters. It refused to hire, as regular
employees, 80 recommendees of retiring employees. KCPI and
UKCEU failed to settle the matter through the existing
grievance machinery.

April 23, 1999, the parties filed before the National Conciliation
and Mediation Board (NCMB), a Submission Agreement
referring to arbitration the issue of whether KCPI violated the
CBA. Meantime, in August 1999, KCPI and UKCEU executed a
new CBA. Article XX, Section 1 was incorporated in the new
CBA, governing the relation of the parties up to June 30, 2002.

UKCEU averred in its pleadings that the “qualification in terms

of education,” that is, admitting recommendees who were at
least high school graduates, had been an established practice of
KCPI since 1980 so that KCPI could not just unilaterally revoke
such practice without its (UKCEU) consent and approval, and
that while KCPI had the discretion to raise the educational
qualification of its applicants for employment, this did not apply
to recommendees due to the manner by which Article XX,
Section 1 was implemented in the past. Thus, in refusing to
hire the 80 recommendees as regular employees, KCPI violated
its CBA with the union, equivalent to breach of contract and
unfair labor practice.

KCPI maintained that pursuant to its management prerogative,

it had the right to determine hiring standards under Article XX,
Section 1 of the CBA without the consent or approval of UKCEU.
It argued that like applicants for regular positions,
recommendees of retiring employees must also be college
graduates, in accordance with its Guidelines.

March 19, 2001, the Voluntary Arbitrator (VA) issued a

Resolution favoring UKCEU. And held that the company cannot
suspend implementation of Section 1, Article XX of the existing
CBA unilaterally by upgrading the educational qualifications of
“applicants-replacements” than are required previously; and
that since the CBA is the law between the parties, KCPI could
not just unilaterally change or suspend the implementation of
the existing employment requirements, even in the light of the
business situation then prevailing in the Philippines.

KCPI questioned the decision of the VA via petition for review

before the CA. CA partially set aside the Resolution of the VA
and ruled that KCPI may validly exercise its management
prerogative and impose the requirement on recommendees.
Only UKCEU moved for a partial reconsideration of CA Decision.
CA denied the MR. hence this instant petition.

ISSUE:
WON the CA erred in ruling that, under Article XX, Section 1 of
the CBA, respondent is required to hire only those
recommendees of retired/resigned, deceased or disabled
members of petitioner who had completed at least a two-year
technical/vocational course or a third-year level of college
education.

RULING:

The court ruled against the petitioner. An arbitrator is confined

to the interpretation and application of the collective
bargaining agreement. He does not sit to dispense his own
brand of industrial justice: his award is legitimate only in so far
as it draws its essence from the CBA.

A CBA is more than a contract. It covers the whole employment

relationship and prescribes the rights and duties of the parties.
It is a system of industrial self-government with the grievance
machinery at the very heart of the system. The parties solve
their problems by molding a system of private law for all the
problems which may arise and to provide for their solution in a
way which will generally accord with the variant needs and
desires of the parties.

If the terms of a CBA are clear and have no doubt upon the
intention of the contracting parties, the literal meaning of its
stipulation shall prevail. But, if, in a CBA, the parties stipulate
that the hirees must be presumed of employment qualification
standards but fail to state such qualification standards in said
CBA, the VA may resort to evidence extrinsic of the CBA to
determine the full agreement intended by the parties. Gaps
may be left to be filled in by reference to the practices of the
industry, and the step which is equally a part of the CBA
although not expressed in it. In order to ascertain the intention
of the contracting parties, their contemporaneous and
subsequent acts shall be principally considered. VA may also
consider and rely upon negotiating and contractual history of
the parties, evidence of past practices interpreting ambiguous
provisions. The VA has to examine such practices to determine
the scope of their agreement, as where the provision of the
CBA has been loosely formulated. CBA must be construed
liberally rather than narrowly and technically and the Court
must place a practical and realistic construction upon it.

In the present case, the parties are in agreement that, on

its face, Article XX, Section 1 of their 1997 CBA does not contain
any provision relative to the employment qualification
standards of recommendees of retired/resigned, deceased or
disabled employees of respondent who are members of
petitioner. However, in determining the employment
qualification standards for said recommendees, the VA should
have relied on the Guidelines issued by respondent. By
executing the 1997 CBA, in its present form, petitioner is bound
by the terms and conditions therein set forth.

The VA, however, ignored the plain language of the 1997

CBA of the parties, as well as the Guidelines issued by
respondent. He capriciously based his resolution on the
respondent’s practice of hiring.
The Court has recognized the undoubted right of the employer
to regulate, according to his own discretion and best judgment,
all aspects of employment, including but not limited to, work
assignments and supervision, working methods and
regulations, time, place and manner of work, processes to be
followed, and hiring, supervision, transfer, discipline, lay off,
dismissal and recall of workers. But the exercise of this right is
not absolute. Management prerogative must be exercised in
good faith for the advancement of the employer’s interest and
not for the purpose of defeating or circumventing the rights of
the employees under special laws, valid agreements such as the
individual contract of employment and the CBA, and general
principles of justice and fair play. In this case, the Court finds
that respondent acted in accord with the CBA and the
Guidelines, which, by agreement of the parties, may be
implemented by respondent.

Petition is DENIED for lack of merit.

RIVERA VS. SOLIDBANK DIGEST

DECEMBER 21, 2016 ~ LEAVE A COMMENT
G.R. No. 163269 April 19, 2006

ROLANDO C. RIVERA, Petitioner,

vs.
SOLIDBANK CORPORATION, Respondent.

FACTS: Petitioner had been working for Solidbank Corporation

since July 1, 1977. He was initially employed as an Audit Clerk,
then as Credit Investigator, Senior Clerk, Assistant Accountant,
and Assistant Manager. Prior to his retirement, he became the
Manager of the Credit Investigation and Appraisal Division of
the Consumer’s Banking Group. In the meantime, Rivera and his
brother-in-law put up a poultry business in Cavite.

Solidbank offered a retirement program which Rivera accepted.

Rivera was entitled to receive the net amount of P963,619.28,
which he received.

(THE RELEASE WAIVER AND QUITCLAIM)

Subsequently, Solidbank required Rivera to sign an undated

Release, Waiver and Quitclaim, which was notarized on March
1, 1995. Rivera acknowledged receipt of the net proceeds of his
separation and retirement benefits and promised that “[he]
would not, at any time, in any manner whatsoever, directly or
indirectly engage in any unlawful activity prejudicial to the
interest of Solidbank, its parent, affiliate or subsidiary
companies, their stockholders, officers, directors, agents or
employees, and their successors-in-interest and will not
disclose any information concerning the business of Solidbank,
its manner or operation, its plans, processes, or data of any
kind.”

Aside from acknowledging that he had no cause of action

against Solidbank or its affiliate companies, Rivera agreed that
the bank may bring any action to seek an award for damages
resulting from his breach of the Release, Waiver and Quitclaim,
and that such award would include the return of whatever
sums paid to him by virtue of his retirement.
(THE SEPARATE UN-NOTARIZED UNDERTAKING)

Rivera was likewise required to sign an undated Undertaking as

a supplement to the Release, Waiver and Quitclaim in favor of
Solidbank in which he declared that he received in full his
entitlement under the law (salaries, benefits, bonuses and
other emoluments), including his separation pay in accordance
with the SRP. In this Undertaking, he promised that “[he] will
not seek employment with a competitor bank or financial
institution within one (1) year from February 28, 1995, and that
any breach of the Undertaking or the provisions of the Release,
Waiver and Quitclaim would entitle Solidbank to a cause of
action against him before the appropriate courts of law. Unlike
the Release, Waiver and Quitclaim, the Undertaking was not
notarized.

On May 1, 1995, the Equitable Banking Corporation (Equitable)

employed Rivera as Manager of its Credit Investigation and
Appraisal Division of its Consumers’ Banking Group. Solidbank
then, through a letter, demanded the return of the all the
monetary benefits he received in consideration of the SRP
within five (5) days from receipt; otherwise, appropriate legal
action would be taken against him. Rivera refused.

RTC: Solidbank filed a complaint for Sum of Money with Prayer

for Writ of Preliminary Attachment. SOLIDBANK alleged therein
that in accepting employment with a competitor bank for the
same position he held in Solidbank before his retirement,
Rivera violated his Undertaking under the SRP. Considering that
Rivera accepted employment with Equitable barely three
months after executing the Undertaking, it was clear that he
had no intention of honoring his commitment under said deed.

In his Answer with Affirmative Defenses and Counterclaim,

Rivera admitted that he received the net amount
ofP963,619.28 as separation pay. However, the employment
ban provision in the Undertaking was never conveyed to him
until he was made to sign it on February 28, 1995. He
emphasized that, prior to said date, Solidbank never disclosed
any condition to the retirement scheme, nor did it impose such
employment ban on the bank officers and employees who had
previously availed of the SRP. He alleged that the undertaking
not to “seek employment with any competitor bank or financial
institution within one (1) year from February 28, 1995” was
void for being contrary to the Constitution, the law and public
policy, that it was unreasonable, arbitrary, oppressive,
discriminatory, cruel, unjust, inhuman, and violative of his
human rights. He further claimed that the Undertaking was a
contract of adhesion because it was prepared solely by
Solidbank without his participation; considering his moral and
economic disadvantage, it must be liberally construed in his
favor and strictly against the bank.

BANK filed motion for summary judgment for lack of a genuine

issue. Rivera opposed.

RTC ORDERED RIVERA TO PAY back to solidbank all his received

benefits. The trial court declared that there was no genuine
issue as to a matter of fact in the case since Rivera voluntarily
executed the Release, Waiver and Quitclaim, and the
Undertaking. He had a choice not to retire, but opted to do so
under the SRP, and, in fact, received the benefits under it.

According to the RTC, the prohibition incorporated in the

Undertaking was not unreasonable. To allow Rivera to be
excused from his undertakings in said deed and, at the same
time, benefit therefrom would be to allow him to enrich
himself at the expense of Solidbank. The RTC ruled that Rivera
had to return the P963,619.28 he received from Solidbank, plus
interest of 12% per annum from May 23, 1998 until fully paid.

The CA declared that there was no genuine issue regarding any

material fact except as to the amount of damages. It
ratiocinated that the agreement between Rivera and Solidbank
was the law between them, and that the interpretation of the
stipulations therein could not be left upon the whims of Rivera.
According to the CA, Rivera never denied signing the Release,
Waiver, and Quitclaim, including the Undertaking regarding the
employment prohibition. He even admitted joining Equitable as
an employee within the proscribed one-year period. The
alleged defenses of Rivera, the CA declared, could not prevail
over the admissions in his pleadings.1avvphil.netMoreover,
Rivera’s justification for taking the job with Equitable, “dire
necessity,” was not an acceptable ground for annulling the
Undertaking since there were no earmarks of coercion, undue
influence, or fraud in its execution. Having executed the said
deed and thereafter receiving the benefits under the SRP, he is
deemed to have waived the right to assail the same, hence, is
estopped from insisting or retaining the said amount of
P963,619.28.
However, the CA ruled that the attachment made upon Rivera’s
family home was void, and, pursuant to the mandate of Article
155, in relation to Article 153 of the Family Code, must be
discharged.

ISSUE: Whether the employment ban incorporated in the

Undertaking which petitioner executed upon his retirement is
unreasonable, oppressive, hence, contrary to public policy.

(minor issue: WON the ruling of the RTC through summary

judgment was proper)

HELD: We agree with petitioner’s contention that the issue as

to whether the post-retirement competitive employment ban
incorporated in the Undertaking is against public policy is a
genuine issue of fact, requiring the parties to present evidence
to support their respective claims. (summary judgment was
wrong)

Article 1306 of the New Civil Code provides that the contracting
parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public
policy. The freedom of contract is both a constitutional and
statutory right. A contract is the law between the parties and
courts have no choice but to enforce such contract as long as it
is not contrary to law, morals, good customs and against public
policy.
On the other hand, retirement plans, in light of the
constitutional mandate of affording full protection to labor,
must be liberally construed in favor of the employee, it being
the general rule that pension or retirement plans formulated by
the employer are to be construed against it. Retirement
benefits, after all, are intended to help the employee enjoy the
remaining years of his life, releasing him from the burden of
worrying for his financial support, and are a form of reward for
being loyal to the employer.

There is no factual basis for the trial court’s ruling, for the
simple reason that it rendered summary judgment and thereby
foreclosed the presentation of evidence by the parties to prove
whether the restrictive covenant is reasonable or not.
Moreover, on the face of the Undertaking, the post-retirement
competitive employment ban is unreasonable because it has no
geographical limits; respondent is barred from accepting any
kind of employment in any competitive bank within the
proscribed period. Although the period of one year may appear
reasonable, the matter of whether the restriction is reasonable
or unreasonable cannot be ascertained with finality solely from
the terms and conditions of the Undertaking, or even in tandem
with the Release, Waiver and Quitclaim.

Undeniably, petitioner retired under the SRP and received

P963,619.28 from respondent. However, petitioner is not
proscribed, by waiver or estoppel, from assailing the post-
retirement competitive employment ban since under Article
1409 of the New Civil Code, those contracts whose cause,
object or purpose is contrary to law, morals, good customs,
public order or public policy are inexistent or void from the
beginning. Estoppel cannot give validity to an act that is
prohibited by law or one that is against public policy.

(Even if he received the amount for retirement, that does not

mean he was already estopped from questioning the other
provisions of the contract)

In Ferrazzini v. Gsell x x x There are two principal grounds on

which the doctrine is founded that a contract in restraint of
trade is void as against public policy.

The injury to the public by being deprived of the restricted

party’s industry;
The injury to the party himself by being precluded from
pursuing his occupation, and thus being prevented from
supporting himself and his family.
In cases where an employee assails a contract containing a
provision prohibiting him or her from accepting competitive
employment as against public policy, the employer has to
adduce evidence to prove that the restriction is reasonable and
not greater than necessary to protect the employer’s legitimate
business interests. The restraint may not be unduly harsh or
oppressive in curtailing the employee’s legitimate efforts to
earn a livelihood and must be reasonable in light of sound
public policy

On the assumption that the competitive employment ban in

the Undertaking is valid, petitioner is not automatically entitled
to return the P963,619.28 he received from respondent. To
reiterate, the terms of the Undertaking clearly state that any
breach by petitioner of his promise would entitle respondent to
a cause of action for protection in the courts of law; as such,
restitution of the P963,619.28 will not follow as a matter of
course. Respondent is still burdened to prove its entitlement to
the aforesaid amount by producing the best evidence of which
its case is susceptible.

Remanded to RTC

Julie’s Bakeshop and/or Reyes vs. ARNAIZ ET AL DIGEST

DECEMBER 21, 2016 ~ LEAVE A COMMENT
G.R. No. 173882 February 15, 2012

Julie’s Bakeshop and/or Edgar Reyes, Petitioners,

vs.
HENRY ARNAIZ, EDGAR NAPAL,⃰ and Jonathan Tolores,
Respondents.

FACTS: Julie’s Bakeshop and/or Edgar Reyes (Reyes) assail the

decision of the CA which reversed the Resolutions of the NLRC
and ordered petitioners to reinstate respondents Henry Arnaiz
(Arnaiz), Edgar Napal (Napal) and Jonathan Tolores (Tolores)
and to pay them their backwages for having been
constructively dismissed, as well as their other monetary
benefits.

THE CASE: Reyes hired respondents as chief bakers in his three

franchise branches of Julie’s Bakeshop in Sibalom and San Jose,
Antique. Respondents filed separate complaints against
petitioners for underpayment of wages, payment of premium
pay for holiday and rest day, service incentive leave pay, 13th
month pay, cost of living allowance (COLA) and attorney’s fees.
These complaints were later on consolidated.

Subsequently, in a memorandum dated February 16, 2000,

Reyes reassigned respondents as utility/security personnel
tasked to clean the outside vicinity of his bakeshops and to
maintain peace and order in the area. Upon service of the
memo, respondents, however, refused to sign the same and
likewise refused to perform their new assignments by not
reporting for work.

LABOR ARBITER: expressed dismay over respondents’ lack of

good faith in negotiating a settlement. The Labor Arbiter
denounced the way respondents dealt with Atty. Delicana
during their discussions for a possible settlement since
respondents themselves later on informed the said tribunal
that at the time of the said discussions, they no longer
considered Atty. Delicana as their counsel. Despite this, the
Labor Arbiter still required the parties to submit their
respective position papers. And as respondents’ position paper
was filed late and no evidence was attached to prove the
allegations therein, the Labor Arbiter resolved to dismiss the
complaints.

NLRC overruled the Decision of the Labor Arbiter and held that
the burden of proof lies on herein petitioners as Reyes
admitted being the employer of Tolores. Hence, petitioners not
Tolores, had the duty to advance proof. With respect to Arnaiz
and Napal, the NLRC noted that since their alleged employer
was not impleaded, said respondents’ cases should be
remanded to the Labor Arbiter, and tried as new and separate
cases.

NLRC (MR) found merit in respondents’ Motion for

Reconsideration. The NLRC ruled that respondents’ demotion in
rank from chief bakers to utility/security personnel is
tantamount to constructive dismissal which entitles them to
the reliefs available to illegally dismissed employees. NLRC
ratiocinated that the employer bears the burden of proving
that the employees received their wages and benefits. In this
case, however, no proof of such payment was presented by the
petitioners.

NLRC (MR NANAMAN), in its Resolution dated December 18,

2003, again reconsidered its own ruling and held that
respondents were not dismissed, either actually or
constructively, but instead willfully disobeyed the return to
work order of their employer. The NLRC upheld petitioners’
prerogative to transfer respondents if only to serve the greater
interest, safety and well-being of the buying public by
forestalling irregular acts of said employees. The NLRC then put
the blame on respondents for disobeying the lawful orders of
their employer, noting that it was the same attitude displayed
by them in their dealings with their counsel, Atty. Delicana, in
the proceedings before the Labor Arbiter.

CA ruled that respondents were constructively dismissed since

their designation from chief bakers to utility/security personnel
is undoubtedly a demotion in rank which involved “a drastic
change in the nature of work resulting to a demeaning and
humiliating work condition.” Further, respondents could not be
held guilty of abandonment of work as this was negated by
their immediate filing of complaints to specifically ask for
reinstatement.

ISSUE: WAS THE TRANSFER/REASSIGNMENT OF RESPONDENTS

TO ANOTHER POSITION WITHOUT DIMINUTION IN PAY AND
OTHER PRIVILEGES TANTAMOUNT TO CONSTRUCTIVE
DISMISSAL?

HELD: The Court of Appeals is correct in reviewing the findings

of the National Labor Relations Commission.

( reinstatement without loss of seniority rights, full backwages,

inclusive of allowances, and other benefits or their monetary
equivalent, computed from the time their compensation was
withheld up to the time of their actual reinstatement, should
be granted)

The transfer/reassignment of respondents constitutes

constructive dismissal.

We have held that management is free to regulate, according

to its own discretion and judgment, all aspects of employment,
including hiring, work assignments, working methods, time,
place and manner of work, processes to be followed,
supervision of workers, working regulations, transfer of
employees, work supervision, lay off of workers and discipline,
dismissal and recall of workers. The exercise of management
prerogative, however, is not absolute as it must be exercised in
good faith and with due regard to the rights of labor.

In constructive dismissal cases, the employer has the burden of

proving that the transfer of an employee is for just or valid
ground, such as genuine business necessity. The employer must
demonstrate that the transfer is not unreasonable,
inconvenient, or prejudicial to the employee and that the
transfer does not involve a demotion in rank or a diminution in
salary and other benefits. “If the employer fails to overcome
this burden of proof, the employee’s transfer is tantamount to
unlawful constructive dismissal.”

In this case, petitioners insist that the transfer of respondents

was a measure of self-preservation and was prompted by a
desire to protect the health of the buying public, claiming that
respondents should be transferred to a position where they
could not sabotage the business pending resolution of their
cases. According to petitioners, the possibility that respondents
might introduce harmful substances to the bread while in the
performance of their duties as chief bakers is not imaginary but
real as borne out by what Tolores did in one of the bakeshops
in Culasi, Antique where he was assigned as baker.

This postulation is not well-taken. On the contrary, petitioners

failed to satisfy the burden of proving that the transfer was
based on just or valid ground. Petitioners’ bare assertions of
imminent threat from the respondents are mere accusations
which are not substantiated by any proof. This Court is
proscribed from making conclusions based on mere
presumptions or suppositions. An employee’s fate cannot be
justly hinged upon conjectures and surmises.

The act attributed against Tolores does not even convince us as

he was merely a suspected culprit in the alleged sabotage for
which no investigation took place to establish his guilt or
culpability. Besides, Reyes still retained Tolores as an employee
and chief baker when he could have dismissed him for cause if
the allegations were indeed found true. In view of these, this
Court finds no compelling reason to justify the transfer of
respondents from chief bakers to utility/security personnel.
What appears to this Court is that respondents’ transfer was an
act of retaliation on the part of petitioners due to the former’s
filing of complaints against them, and thus, was clearly made in
bad faith. In fact, petitioner Reyes even admitted that he
caused the reassignments due to the pending complaints filed
against him.

“[D]emotion involves a situation in which an employee is

relegated to a subordinate or less important position
constituting a reduction to a lower grade or rank, with a
corresponding decrease in duties and responsibilities, and
usually accompanied by a decrease in salary.“

Although there was no diminution in pay, there was

undoubtedly a demotion in titular rank. One cannot deny the
disparity between the duties and functions of a chief baker to
that of a utility/security personnel tasked to clean and manage
the orderliness of the outside premises of the bakeshop.
Respondents were even prohibited from entering the
bakeshop. The change in the nature of their work undeniably
resulted to a demeaning and humiliating work condition.

Respondents cannot be faulted for refusing to report for work

as they were compelled to quit their job due to a demotion
without any just cause. Moreover, we have consistently held
that a charge of abandonment is inconsistent with the filing of a
complaint for constructive dismissal. Respondents’ demand to
maintain their positions as chief bakers by filing a case and
asking for the relief of reinstatement belies abandonment.

TINIO VS. CA ET AL DIGEST

DECEMBER 21, 2016 ~ LEAVE A COMMENT
TINIO VS. CA AND SMART, CAEG AND MARTINEZ

G.R. No. 171764

JUNE 8, 2007

FACTS: SMART employed Tinio as its GM for VISMIN Sales and

Operations based in Cebu. Later, private respondent Caeg,
Group Head, Sales and Distribution of SMART, under the
supervision of co-respondent Martirez, informed petitioner of
his new assignment as Sales Manager for Corporate Sales in
SMART’s Head Office in Makati City.

Petitioner reported to SMART’s Head Office and discussed with

the HRD Group Head, his job description, functions,
responsibilities, salary and benefits, as well as options for
relocation/transfer of his family to Manila. The next day,
petitioner and Caeg met to discuss further details of
petitioner’s new position.

Thereafter, petitioner did not report for work. He instead filed a

complaint for constructive dismissal with claims for moral and
exemplary damages and attorney’s fees against SMART and
private respondents Caeg and Martirez. Caeg required
petitioner to explain his continuing refusal to transfer to his
new assignment, but instead of giving an explanation,
petitioner referred Caeg to his complaint for constructive
dismissal. Private respondents also scheduled a hearing but
petitioner failed to attend. Thus, private respondents
terminated petitioner’s employment for insubordination.

the Labor Arbiter rendered judgment finding that petitioner

was not constructively or illegally dismissed; hence, the
complaint was ordered dismissed. But the Labor Arbiter
awarded financial assistance to petitioner. On appeal, the NLRC
reversed the Labor Arbiter’s decision and declared that
petitioner was illegally dismissed. Private respondents’ MR was
denied.

On a petition for certiorari under Rule 65 to the CA, private

respondents alleged that the NLRC committed grave abuse of
discretion amounting to lack or excess of jurisdiction. The CA
reversed and set aside the Decision of the NLRC and reinstated
the Decision of the Labor Arbiter dismissing the complaint for
lack of merit. Petitioner’s MR was denied; hence, this appeal.
ISSUE: WON private respondents’ act of transferring petitioner
to its Head Office was a valid exercise of management
prerogative; and

HELD: WHEREFORE, the petition is DENIED. The Decision and

Resolution of the CA dismissing the complaint for constructive
dismissal against private respondents Smart Communications,
Inc., Caeg and Martirez are AFFIRMED with the MODIFICATION
that the award of financial assistance be DELETED for lack of
basis. **

YES

This Court has consistently recognized and upheld the

prerogative of management to transfer an employee from one
office to another within the business establishment, provided
there is no demotion in rank or a diminution of salary, benefits
and other privileges. As a rule, the Court will not interfere with
an employer’s prerogative to regulate all aspects of
employment which include among others, work assignment,
working methods and place and manner of work. Labor laws
discourage interference with an employer’s judgment in the
conduct of his business.

But, like other rights, there are limits thereto. The managerial
prerogative to transfer personnel must be exercised without
grave abuse of discretion, bearing in mind the basic elements of
justice and fair play.
Hence, it may be gleaned from the foregoing discourse that a
transfer is deemed to be constructive dismissal when three
conditions concur:

first, when the transfer is unreasonable, inconvenient or

prejudicial to the employee;

second, when the transfer involves a demotion in rank or

diminution of salaries, benefits and other privileges; and

third, when the employer performs a clear act of

discrimination, insensibility, or disdain towards the employee,
which forecloses any choice by the latter except to forego his
continued employment.

We find that petitioner was not demoted since his transfer

from Cebu to Makati was being implemented due to a valid
corporate reorganization to streamline management
operations. In terms of career advancement, the transfer was
EVEN beneficial and advantageous since he was being assigned
the corporate accounts of the choice clients of SMART

NOTES:

** Petitioner’s failure to report for work, or absence without

valid or justifiable reason, coupled with a clear intention to
sever employer-employee relationship, leads us to no other
conclusion than that he abandoned his work. As such, the
award of financial assistance given by the Labor Arbiter and
affirmed by the appellate court must be deleted for lack of
basis.

Definition of terms
A transfer is a “movement from one position to another which
is of equivalent rank, level or salary, without break in service.”

Promotion is the “advancement from one position to another

with an increase in duties and responsibilities as authorized by
law, and usually accompanied by an increase in salary.”

Demotion involves a situation where an employee is relegated

to a subordinate or less important position constituting a
reduction to a lower grade or rank, with a corresponding
decrease in duties and responsibilities, and usually
accompanied by a decrease in salary.

The burden of proof in constructive dismissal cases is on the

employer to establish that the transfer of an employee is for
valid and legitimate grounds
An employee’s right to security of tenure does not give him a
vested right to his position as would deprive the company of its
prerogative to change his assignment or transfer him where he
will be most useful.
accdg to SC: Despite the change of petitioner’s title from
“Senior Manager” to “Corporate Sales Manager,” he still
enjoyed the same rank and salary.
Mere title or position held by an employee in a company does
not determine whether a transfer constitutes a demotion.
Rather, it is the totality of the following circumstances, to wit:

economic significance of the work,

the duties and responsibilities conferred,

as well as the same rank and salary of the employee, among

others, that establishes whether a transfer is a demotion.

PANTOJA VS. SCA DIGEST

DECEMBER 21, 2016 ~ LEAVE A COMMENT
PANTOJA VS. SCA

G.R. No. 163554

APRIL 23, 2010

FACTS: Respondent, a corporation engaged in the manufacture,

sale and distribution of industrial paper and tissue products,
employed Pantoja and was eventually assigned at respondent’s
Paper Mill No. 4, the section which manufactures the
company’s industrial paper products, as a back tender in charge
of the proper operation of the section’s machineries.
In a Notice of Transfer, respondent informed petitioner of its
reorganization plan and offered him a position at Paper Mill No.
5 under the same terms and conditions of employment in
anticipation of the eventual closure and permanent shutdown
of Paper Mill No. 4 . The closure and concomitant
reorganization is in line with respondent’s decision to
streamline and phase out the company’s industrial paper
manufacturing operations due to financial difficulties.

However, petitioner rejected respondent’s offer for his

transfer. Thus, a notice of termination of employment was sent
to petitioner as his position was declared redundant by the
closure of Paper Mill No. 4. He then received his separation pay
and thereafter executed a release and quitclaim in favor of
respondent. later, respondent informed the DOLE of its
reorganization and partial closure by submitting with the said
office an Establishment Termination Report together with the
list of 31 terminated employees.

Petitioner filed a complaint for illegal dismissal against

respondent assailing his termination as without any valid cause.
He averred that the alleged redundancy never occurred as
there was no permanent shutdown of Paper Mill No. 4 due to
its continuous operation since his termination.

In its defense, respondent refuted petitioner’s claim of illegal

dismissal. It argued that petitioner has voluntarily separated
himself from service by opting to avail of the separation
benefits of the company instead of accepting
reassignment/transfer to another position of equal rank and
pay. According to respondent, petitioner’s discussion on the
alleged resumption of operation of Paper Mill No. 4 is rendered
moot by the fact of petitioner’s voluntary separation.

the Labor Arbiter rendered a Decision dismissing

petitioner’s complaint for lack of merit. Upon appeal by
petitioner, the NLRC reversed the Labor Arbiter’s Decision by
finding petitioner’s separation from employment illegal. The
NLRC gave credence to petitioner’s evidence of Paper Mill No.
4’s continuous operation.

Respondent sought reconsideration of the NLRC’s ruling**,

which was however denied. Respondent filed a petition for
certiorari with the CA, which reversed the NLRC’s Decision and
reinstated the Labor Arbiter’s Decision dismissing the
complaint. It ruled that there was no illegal dismissal as the act
of petitioner in rejecting the transfer and accepting the
separation pay constitutes a valid basis for the separation from
employment. Respondent’s Motion to Annul the NLRC’s Entry
of Judgment was granted by the CA. Petitioner’s MR was
denied

ISSUE: WON there was illegal dismissal

HELD: WHEREFORE, the petition is DENIED. The assailed

Decision of the CA dismissing petitioner complaint for illegal
dismissal and the Resolution denying the MR are AFFIRMED.

NO
Respondent presented evidence of the low volume of sales and
orders for the production of industrial paper in 1999 which
inevitably resulted to the company’s decision to streamline its
operations. Exercising its management prerogative and sound
business judgment, respondent decided to cut down on
operational costs by shutting down one of its paper mill. As
held in International Harvester Macleod, Inc. v. IAC , the
determination of the need to phase out a particular
department and consequent reduction of personnel and
reorganization as a labor and cost saving device is a recognized
management prerogative which the courts will not generally
interfere with. Apparently, respondent implemented its
streamlining or reorganization plan with good faith, not in an
arbitrary manner and without prejudicing the tenurial rights of
its employees.

As long as no arbitrary or malicious action on the part of an

employer is shown, the wisdom of a business judgment to
implement a cost saving device is beyond this court’s
determination. After all, the free will of management to
conduct its own business affairs to achieve its purpose cannot
be denied.

NOTES:

the reason why Paper Mill no. 4 continued it operation after

the separation of Pantoja:

Respondent sought reconsideration of the NLRC’s ruling. It

denied the fact that Paper Mill No. 4 continued to be fully
operational in 1999. Respondent asseverated that when Paper
Mill No. 4 was shut down in 1999 due to its low production
output as certified in an affidavit executed by SCA’s VP-Tissue
Manufacturing Director, there was a necessity to occasionally
run from time to time the machines in Paper Mill No. 4 only for
the purpose of maintaining and preserving the same and does
not mean that Paper Mill No. 4 continued to be operational. It
was only in 2000 that Paper Mill No. 4 was subsequently
reopened due to a more favorable business climate, which
decision is recognized as a rightful exercise of management
prerogative.

COCA COLA VS. CLIMACO DIGEST

DECEMBER 21, 2016 ~ LEAVE A COMMENT
G.R. No. 146881 February 5, 2007

COCA COLA BOTTLERS (PHILS.), INC./ERIC MONTINOLA,

Manager, Petitioners,
vs.
DR. DEAN N. CLIMACO, Respondent.

FACTS: Respondent Dr. Dean N. Climaco is a medical doctor

The Retainer Agreement, which began on January 1, 1988, was
renewed annually (original contract was only good for one
year). The last one expired on December 31, 1993. Despite the
non-renewal of the Retainer Agreement, respondent continued
to perform his functions as company doctor to Coca-Cola until
he received a letter4 dated March 9, 1995 from petitioner
company concluding their retainership agreement effective 30
days from receipt thereof.
It is noted that as early as September 1992, petitioner was
already making inquiries regarding his status with petitioner
company. Petitioner company, however, did not take any
action. Hence, respondent made another inquiry with the DOLE
and SSS. Thereafter, respondent inquired from the
management of petitioner company whether it was agreeable
to recognizing him as a regular employee. The management
refused to do so.

FILED TWO COMPLAINTS IN THE NLRC: (1) seeking recognition

as a regular employee of petitioner company and prayed for
the payment of all benefits of a regular employee, including
13th Month Pay, Cost of Living Allowance, Holiday Pay, Service
Incentive Leave Pay, and Christmas Bonus; (2) a complaint for
illegal dismissal against petitioner company with the NLRC,
Bacolod City.

LABOR ARBITER’S DECISION: Case (1) Dismissed, found that

petitioner company lacked the power of control over
respondent’s performance of his duties, and recognized as valid
the Retainer Agreement between the parties; (2) dismissed the
case for illegal dismissal in view of the previous finding of Labor
Arbiter that complainant therein, respondent is not an
employee of Coca-Cola Bottlers Phils., Inc.

Respondent appealed both decisions to the NLRC, Fourth

Division, Cebu City; Dismissed for lack of merit. MR denied.
APPEAL WITH THE CA: that an employer-employee relationship
existed between petitioner company and respondent after
applying the four-fold test.

MR BY PETITONER: The Court of Appeals clarified that

respondent was a “regular part-time employee and should be
accorded all the proportionate benefits due to this category of
employees of [petitioner] Corporation under the CBA.” It
sustained its decision on all other matters sought to be
reconsidered. Hence, this petition.

ISSUE: whether or not there exists an employer-employee

relationship between the parties; The resolution of the main
issue will determine whether the termination of respondent’s
employment is illegal.

HELD: NO employer-employee relationship.

Four-fold test: (1) the selection and engagement of the

employee; (2) the payment of wages; (3) the power of
dismissal; and (4) the power to control the employee’s conduct,
or the so-called “control test,” considered to be the most
important element.

The Court agrees with the finding of the Labor Arbiter and the
NLRC that the circumstances of this case show that no
employer-employee relationship exists between the parties.
The Labor Arbiter and the NLRC correctly found that petitioner
company lacked the power of control over the performance by
respondent of his duties. The Labor Arbiter reasoned that the
Comprehensive Medical Plan, which contains the respondent’s
objectives, duties and obligations, does not tell respondent
“how to conduct his physical examination, how to immunize, or
how to diagnose and treat his patients, employees of
[petitioner] company, in each case.”

petitioner company, through the Comprehensive Medical Plan,

provided guidelines merely to ensure that the end result was
achieved, but did not control the means and methods by which
respondent performed his assigned tasks.

Because the company lacks the power of control that the

contract provides that respondent shall be directly responsible
to the employee concerned and their dependents for any
injury, harm or damage caused through professional
negligence, incompetence or other valid causes of action.

Respondent is not at all further required to just sit around in

the premises and wait for an emergency to occur so as to
enable him from using such hours for his own benefit and
advantage. In fact, complainant maintains his own private clinic
attending to his private practice in the city, where he services
his patients, bills them accordingly — and if it is an employee of
respondent company who is attended to by him for special
treatment that needs hospitalization or operation, this is
subject to a special billing.

An employee is required to stay in the employer’s workplace or

proximately close thereto that he cannot utilize his time
effectively and gainfully for his own purpose. Such is not the
prevailing situation here.1awphi1. Court finds that the schedule
of work and the requirement to be on call for emergency cases
do not amount to such control, but are necessary incidents to
the Retainership Agreement.

The Court also notes that the Retainership Agreement granted

to both parties the power to terminate their relationship upon
giving a 30-day notice. Hence, petitioner company did not wield
the sole power of dismissal or termination.

Considering that there is no employer-employee relationship

between the parties, the termination of the Retainership
Agreement, which is in accordance with the provisions of the
Agreement, does not constitute illegal dismissal of respondent.

PETITION GRANTED.

PEOPLE’S BROADCASTING vs. SOLE ET AL DIGEST

DECEMBER 21, 2016 ~ LEAVE A COMMENT
G.R. No. 179652 May 8, 2009

PEOPLE’S BROADCASTING (BOMBO RADYO PHILS., INC.),

Petitioner,
vs.
THE SECRETARY OF THE DEPARTMENT OF LABOR AND
EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII,
and JANDELEON JUEZAN, Respondents.

FACTS: The instant petition for certiorari under Rule 65 assails

the decision and the resolution of the Court of Appeals.

The petition traces its origins to a complaint filed by Jandeleon

Juezan (respondent) against People’s Broadcasting Service, Inc.
(Bombo Radyo Phils., Inc) (petitioner) for illegal deduction, non-
payment of service incentive leave, 13th month pay, premium
pay for holiday and rest day and illegal diminution of benefits,
delayed payment of wages and non-coverage of SSS, PAG-IBIG
and Philhealth (non-diminution of benefits in the amount
allegedly 6K) before the Department of Labor and Employment
(DOLE) Regional Office No. VII, Cebu City.2 On the basis of the
complaint, the DOLE conducted a plant level inspection on 23
September 2003. Labor Inspector wrote under the heading
“Findings/Recommendations” “non-diminution of benefits” and
“Note: Respondent deny employer-employee relationship with
the complainant- see Notice of Inspection results.”

PETITIONER’S POSITION: Management representative informed

that complainant is a drama talent hired on a per drama ”
participation basis” hence no employer-employeeship [sic]
existed between them. As proof of this, management
presented photocopies of cash vouchers, billing statement,
employments of specific undertaking (a contract between the
talent director & the complainant), summary of billing of drama
production etc. They (mgt.) has [sic] not control of the talent if
he ventures into another contract w/ other broadcasting
industries.

RULING OF DOLE REGIONAL DIRECTOR: respondent is an

employee of petitioner, and that the former is entitled to his
money claims amounting toP203,726.30. MR denied; Appeal
with the DOLE Secretary, dismissed the appeal on the ground
that petitioner did not post a cash or surety bond and instead
submitted a Deed of Assignment of Bank Deposit.

APPEAL WITH THE CA: claiming that it was denied due process
when the DOLE Secretary disregarded the evidence it
presented and failed to give it the opportunity to refute the
claims of respondent. Petitioner maintained that there is no
employer-employee relationship had ever existed between it
and respondent because it was the drama directors and
producers who paid, supervised and disciplined respondent. It
also added that the case was beyond the jurisdiction of the
DOLE and should have been considered by the labor arbiter
because respondent’s claim exceeded P5,000.00. CA denied.

WITH THE SC: petitioner argues that the National Labor

Relations Commission (NLRC), and not the DOLE Secretary, has
jurisdiction over respondent’s claim, in view of Articles 217 and
128 of the Labor Code.

RESPONDENT’S POSITION: respondent posits that the Court of

Appeals did not abuse its discretion. He invokes Republic Act
No. 7730, which “removes the jurisdiction of the Secretary of
Labor and Employment or his duly authorized representatives,
from the effects of the restrictive provisions of Article 129 and
217 of the Labor Code, regarding the confinement of
jurisdiction based on the amount of claims.”; and wrong mode
of appeal.

ISSUE: WON the Secretary of Labor have the power to

determine the existence of an employer-employee relationship.

HELD: No

To resolve this pivotal issue, one must look into the extent of
the visitorial and enforcement power of the DOLE found in
Article 128 (b) of the Labor Code, as amended by Republic Act
7730. It reads:

Article 128 (b) Notwithstanding the provisions of Articles 129

and 217 of this Code to the contrary, and in cases where the
relationship of employer-employee still exists, the Secretary of
Labor and Employment or his duly authorized representatives
shall have the power to issue compliance orders to give effect
to the labor standards provisions of this Code and other labor
legislation based on the findings of labor employment and
enforcement officers or industrial safety engineers made in the
course of inspection xxx

The provision is quite explicit that the visitorial and

enforcement power of the DOLE comes into play only “in cases
when the relationship of employer-employee still exists.” Of
course, a person’s entitlement to labor standard benefits under
the labor laws presupposes the existence of employer-
employee relationship in the first place.The clause signifies that
the employer-employee relationship must have existed even
before the emergence of the controversy. Necessarily, the
DOLE’s power does not apply in two instances, namely: (a)
where the employer-employee relationship has ceased; and (b)
where no such relationship has ever existed.

The first situation is categorically covered by Sec. 3, Rule 11 of

the Rules on the Disposition of Labor Standards Cases15 issued
by the DOLE Secretary. It reads:

Rule II MONEY CLAIMS ARISING FROM COMPLAINT/ROUTINE

INSPECTION

Sec. 3. Complaints where no employer-employee relationship

actually exists. Where employer-employee relationship no
longer exists by reason of the fact that it has already been
severed, claims for payment of monetary benefits fall within
the exclusive and original jurisdiction of the labor arbiters.
Accordingly, if on the face of the complaint, it can be
ascertained that employer-employee relationship no longer
exists, the case, whether accompanied by an allegation of
illegal dismissal, shall immediately be endorsed by the Regional
Director to the appropriate branch of the National Labor
Relations Commission (NLRC).

Clearly the law accords a prerogative to the NLRC over the

claim when the employer-employee relationship has
terminated or such relationship has not arisen at all. The reason
is obvious. In the second situation especially, the existence of
an employer-employee relationship is a matter which is not
easily determinable from an ordinary inspection, necessarily so,
because the elements of such a relationship are not verifiable
from a mere ocular examination. The determination of which
should be comprehensive and intensive and therefore best left
to the specialized quasi-judicial body that is the NLRC.

It can be assumed that the DOLE in the exercise of its visitorial

and enforcement power somehow has to make a
determination of the existence of an employer-employee
relationship. Such prerogatival determination, however, cannot
be coextensive with the visitorial and enforcement power itself.
Indeed, such determination is merely preliminary, incidental
and collateral to the DOLE’s primary function of enforcing labor
standards provisions. The determination of the existence of
employer-employee relationship is still primarily lodged with
the NLRC.

Thus, before the DOLE may exercise its powers under Article
128, two important questions must be resolved: (1) Does the
employer-employee relationship still exist, or alternatively, was
there ever an employer-employee relationship to speak of; and
(2) Are there violations of the Labor Code or of any labor law?

A mere assertion of absence of employer-employee

relationship does not deprive the DOLE of jurisdiction over the
claim under Article 128 of the Labor Code. At least a prima facie
showing of such absence of relationship, as in this case, is
needed to preclude the DOLE from the exercise of its power.

Without a doubt, petitioner, since the inception of this case had

been consistent in maintaining that respondent is not its
employee. Certainly, a preliminary determination, based on the
evidence offered, and noted by the Labor Inspector during the
inspection as well as submitted during the proceedings before
the Regional Director puts in genuine doubt the existence of
employer-employee relationship. From that point on, the
prudent recourse on the part of the DOLE should have been to
refer respondent to the NLRC for the proper dispensation of his
claims. Furthermore, as discussed earlier, even the evidence
relied on by the Regional Director in his order are mere self-
serving declarations of respondent, and hence cannot be relied
upon as proof of employer-employee relationship.

Petition GRANTED.

___________

Other Issues (Just in case it will be asked, mahaba2 ung case)

Aside from lack of jurisdiction, there is another cogent reason

to to set aside the Regional Director’s 27 February 2004 Order.
A careful study of the case reveals that the said Order, which
found respondent as an employee of petitioner and directed
the payment of respondent’s money claims, is not supported by
substantial evidence, and was even made in disregard of the
evidence on record.
Even if the labor inspector had noted petitioner’s manifestation
and documents in the Notice of Inspection Results, it is clear
that he did not give much credence to said evidence, as he did
not find the need to investigate the matter further. The labor
inspector could have exerted a bit more effort and looked into
petitioner’s payroll, for example, or its roll of employees, or
interviewed other employees in the premises.
The Court further examined the records and discovered to its
dismay that even the Regional Director turned a blind eye to
the evidence presented by petitioner and relied instead on the
self-serving claims of respondent.
REPONDENT’S CLAIM IN HIS POSITION PAPER: hired by
petitioner in September 1996 as a radio talent/spinner, working
from 8:00 am until 5 p.m., six days a week, on a gross rate of
P60.00 per script, earning an average of P15,0000.00 per
month, payable on a semi-monthly basis xxx In support of his
position paper, respondent attached a photocopy of an
identification card purportedly issued by petitioner, bearing
respondent’s picture and name with the designation “Spinner”;
at the back of the I.D., the following is written: ” This certifies
that the card holder is a duly Authorized MEDIA Representative
of BOMBO RADYO PHILIPPINES …

Certificates were also submitted by respondent to support his

claim.

EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP:

Furthermore, respondent’s pieces of evidence—the
identification card and the certification issued by petitioner’s
Greman Solante— are not even determinative of an employer-
employee relationship. The certification, issued upon the
request of respondent, specifically stated that “MR.
JANDELEON JUEZAN is a program employee of PEOPLE’S
BROADCASTING SERVICES, INC. (DYMF- Bombo Radyo Cebu),” it
is not therefore “crystal clear that complainant is a station
employee rather than a program employee hence entitled to all
the benefits appurtenant thereto,”26 as found by the DOLE
Regional Director. Respondent should be bound by his own
evidence. Moreover, the classification as to whether one is a
“station employee” and “program employee,” as lifted from
Policy Instruction No. 40,27 dividing the workers in the
broadcast industry into only two groups is not binding on this
Court, especially when the classification has no basis either in
law or in fact.28

Even the identification card purportedly issued by petitioner is

not proof of employer-employee relationship since it only
identified respondent as an “Authorized Representative of
Bombo Radyo…,” and not as an employee.

SUBSTANTIAL EVIDENCE: It has long been established that in

administrative and quasi-judicial proceedings, substantial
evidence is sufficient as a basis for judgment on the existence
of employer-employee relationship. Substantial evidence,
which is the quantum of proof required in labor cases, is “that
amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion.”

In the instant case, save for respondent’s self-serving

allegations and self-defeating evidence, there is no substantial
basis to warrant the Regional Director’s finding that respondent
is an employee of petitioner.
RE APPEAL BOND: The purpose of an appeal bond is to ensure,
during the period of appeal, against any occurrence that would
defeat or diminish recovery by the aggrieved employees under
the judgment if subsequently affirmed.40 The Deed of
Assignment in the instant case, like a cash or surety bond,
serves the same purpose. First, the Deed of Assignment
constitutes not just a partial amount, but rather the entire
award in the appealed Order. Second, it is clear from the Deed
of Assignment that the entire amount is under the full control
of the bank, and not of petitioner, and is in fact payable to the
DOLE Regional Office, to be withdrawn by the same office after
it had issued a writ of execution. For all intents and purposes,
the Deed of Assignment in tandem with the Letter Agreement
and Cash Voucher is as good as cash. Third, the Court finds that
the execution of the Deed of Assignment, the Letter Agreement
and the Cash Voucher were made in good faith, and constituted
clear manifestation of petitioner’s willingness to pay the
judgment amount.

MODE OF APPEAL: it is settled, as a general proposition, that

the availability of an appeal does not foreclose recourse to the
extraordinary remedies, such as certiorari and prohibition,
where appeal is not adequate or equally beneficial, speedy and
sufficient xxx

This Court has even recognized that a recourse to certiorari is

proper not only where there is a clear deprivation of
petitioner’s fundamental right to due process, but so also
where other special circumstances warrant immediate and
more direct action. After all, this Court has previously ruled that
the extraordinary writ of certiorari will lie if it is
satisfactorily1avvphiestablished that the tribunal had acted
capriciously and whimsically in total disregard of evidence
material to or even decisive of the controversy
OLDER POSTS