Part 5 – 18:20 (termination)
report indicated under application of
1. He is a sales representative, but not an
ordinary rank and file because he has
managerial duties.
He is bound by more exacting work
ethics.
2. Encoder can be dismissed by reason of
loss of trust and confidence. Her work is
of such nature as to required
substantial amount of trust and
confidence. Her function involves use of
judgment and discretion
3. Confidential employees can be
dismissed by reason of loss of trust and
confidence. Their positions are highly
fiduciary in nature and thus reposed
with trust and confidence.
4. She is not a rank and file, but a
confidential employee. In fact his
position was described as high priority
She does not only screen and process
telephone applications. She also
recommends these applications for
approval. Her findings are relied upon
by PLDT. She is a confidential employee
because of these work functions.
Therefore she can be dismissed by
reason of loss of trust and confidence.
5. Acting finance officer.
Tuition fee increase collection but the
tuition fee increase
Dismissed for loss of trust and
confidence
6. What is the effect of long years of
service, absence of derogatory record,
or amount involved is small to the
dismissal base on loss of trust and
confidence?
Inconsequential
It does not negate loss of trust and
confidence.
Part 6
1. Termination of employment pursuant
to union security clause
This is a just cause falling under
analogous cases
Security union clause is provided under
Art 248 par e
2. Discrimination. – It is a ULP that
employer may commit
3. Union security clause
4. Agency fee
5. Is the continued existence of the
union?
6. Union security clause. – refers to
securing the continued existence of the
union
It is found in the CBA
7. Types of union security clauses
(1) Closed shop agreement
(2) Maintenance of membership
agreement
(3) Agency shop agreement
(4)
(5)
8. Requisites for termination
Employer only has to prove that: the
union security clause is applicable,
union is requesting for its enforcement,
there is sufficient evidence to support
the union’s claim to dismiss the
employee
9. Normal feature of USC
Any member may be recommended by
the union to be dismissed to the
management, after due process
10. Once employer receives the
recommendation by the union, the 3
requisites must be proven
11. To validly dismiss an employee based
on violation on USC, employee must be
afforded due process
12. Company must conduct an independent
and separate investigation. It should
not merely rely on the union’s findings
13. Employer must give employee due
process. He has to be served two
notices – notice to explain and notice of
termination
He must be given reasonable time to
explain which is 5 days
14. Employer cannot adopt the due process
accorded by the union.
It has to be a separate due process
given by the employer.
These are two different and distinct
requirements
15. No.
Employees who are members of other
unions cannot be compelled to join the
exclusive bargaining union when at the
time of signing they are already
member of another union.
16. Newly hired employees can be
compelled to join the sole and exclusive
bargaining unit, except religious
objectors
17. If a member of iglesia ni kristo wants to
join a union, pursuant to his guaranteed
right to self-organization, then he
should be allowed to join. That right
cannot be curtailed.
18. The Employer is liable for the
consequences of illegality of dismissal
based on violation of union security
clause, except if there is an agreement
to the contrary
19. Analogous just causes
(1) Dismissal of union officers who
knowingly participated in an illegal
strike
(2) Ordinary members who are
dismissed because of knowingly
participating in the commission of
illegal acts during a strike
(3) Dismissal of strikers who violated
orders or injunction issued by DOLE
Secretary or NLRC
20. Once strike is declared illegal, officers of
the union which conducted the illegal
strike is deemed to have lost his
employment. It is an analogous just
cause for dismissal.
No requirement that the officer actually
participated in the strike. What is
material is officership.
So long as he is an officer of the union,
his dismissal is automatic because of his
position
21. Ordinary members of the union should
knowingly participate in the
commission of illegal acts in the strike,
because they can be declared to have
lost their employment
22. Mere declaration of illegality of strike,
will not result in the dismissal of
ordinary members of the union.
But once it is proven that they
knowingly participated in the
commission of illegal acts in the strike,
they are deemed to have lost their
employment
The evidence of commission of illegal
acts must be individually determined
Wholesale reference to ordinary
members as having committed certain
illegal acts, without pinpointing
individual liability is insufficient.
23. When strikers openly violate orders,
prohibition, injunction issued by DOLE
Secretary or NLRC
The assumption order issued by the
DOLE Sec, or the certification order
 issued by him certifying the national
interest case to the NLRC for
compulsory arbitration should never be
defied by any officer of the union or
member
Such defiance would mean that they
have lost their employment status.
24. Once assumption order is issued by the
DOEL Sec, it has the following effects:
(1) No strike or lock-out will be
commenced
(2) Immediate lifting of strike or lock
out
(3) All pending cases and all
proceedings in any case related to
the case assumed by the DOLE Sec
or that certified to the NLRC are
deemed subsumed by the labor
dispute
25. In event of defiance of this order,
irrespective of the status (officer or
ordinary member) it will result in loss of
employment status
26. AJO was served in 8:45 am. Sheriff
tried to serve in to the union lawyer.
Informed sheriff that the union
President will only accept 5pm
The strike that day is illegal.
As a consequence of the refusal, all
officers and ordinary members are
deemed to have lost their employment
27. Totality of infraction doctrine
This doctrine calls for consideration of
past infraction or violations of the
employee for purposes of determining
the culpability of the same employee
for the present offense.
Previous infractions may be used as
justification for employees’ dismissal
from work in connection only with a
subsequent similar offense.
Past infractions are relevant only in
connection with subsequent similar
offense or offenses.
Whatever unauthorized absence
infractions in the past cannot be
considered in determining the gravity of
offense in the present infraction which
is of a different nature.
28. The fact that he was suspended in his
past two similar infractions does not
prevent the employer from imposing
the penalty of dismissal.
29. Past infractions are no longer relevant
to the current violation when the same
has already been penalized. Therefore,
they can no longer be invoked.
 To do so would put him in penalty twice
for the same offense.
Relief from illegal dismissal (Part 1)
1. Dismissal was effected without just or
authorized cause, though due process
was observed. It is patently illegal.
2. Dismissal was effected without just or
authorized cause, procedural due
process was not observed. It is patently
illegal and invalid.
3. Dismissal was effected with just or
authorized cause, but due process was
not observed.
4. Dismissal was effected through a non-
existent cause
5. Dismissal was effected but not effected
by any evidence of termination
6. Dismissal is brought about by way of
implementation of the law.
7. Prior to Wenphil vs NLRC
Dismissal was effected with just or
authorized cause, but due process was
not observed.
Reinstatement plus back wages, and if
warranted payment of moral and
exemplary damages
8. Wenphil
Previous ruling was abandoned
Termination shall be considered valid,
but the employer shall be subjected to
the payment of indemnity
(10,000)
9. Serrano vs NLRC
The dismissal in such case is to be
considered as ineffectual.
Here, employee is awarded payment of
full back wages plus moral and
exemplary damages as warranted by
the evidence
If for an authorized cause, separation
pay shall be paid to the employee
10. Agabon vs NLRC
Abandoned Serrano doctrine. Reverted
to Wenphil doctrine.
Employee who is dismissed for
authorized or just cause but without
due process shall not be considered as
illegally dismissed or ineffectually
dismissed. Rather, he is validly and
legally dismissed. But employer shall be
ordered to pay an indemnity for
nominal damages for non-compliance
with the statutory due process.
 It held that the better rule is to
abandon the Serrano Doctrine and
revert to Wenphil Doctrine
The dismissal is valid, but the employer
must be sanctioned.
The sanction must be stiffer than that
imposed in Wenphil
In this way, justice is dispensed no only
insofar as the employee but to the
employer as well
**
12. 50,000 nominal damages can be
Continually embracing Serrano would
encourage frivolous suit where even the
most frivolous violators of company
policy are rewarded by invoking due
process.
13. Business Services of the Future (San
This also creates absurd situation where
there is a just or authorized cause for
dismissal, but the procedural infirmity
invalidates the termination.
Invalidating the dismissal will not serve
public interest. It will also discourage
investment that will generate
employment in the local economy.
**
Here, they were awarded 30,000 pesos
in the form of indemnity (just cause)
14. Termination for without cause vs
11. This 30,000 nominal damages was
increased in the case of Jaka Food
Processing, when the dismissal was due
to an authorized cause
The amount imposed here was stiffer
and it was pegged at 50,000 pesos
The difference between Agabon and
this case (JAKA) is in the cause of
dismissal
In the first, it is the employee who
initiated the dismissal process. He is the
one who gave ground. In the case of an
authorized cause, it is the employer
who gave ground for dismissal.
reduced because of mitigating factors
(Smart)
Miguel Corporation)
50,000 nominal damages can be
reduced because of mitigating factors
Here, it was reduced to 40,000 pesos
for each employee. Reason is: the
closure of the business was effected in
good faith although without due
process. That was a mitigating factor
that was considered by the Supreme
Court.
termination for non-existent cause
In the first, it is the intention of
employer to dismiss the employee for
 no cause whatsoever. In which case, the
dismissal shall be treated as illegal.
In the second, the employer did not
intend to dismiss the employee, but the
dismissal was nonetheless effected for a
specific cause which turned out to be
non-existent
As a consequence, the dismissal is
illegal and the reinstatement of the
employee must be effected as a matter
of normal course
15. Arrested and detained. Went back to
employer. Employer already hired
substituted workers. They were not
allowed to work anymore.
They should be reinstated to their
employment because their dismissal
was founded on a false or non-existent
cause, hence, illegal.
16. AWOL. Committed rape. Acquitted in
the crime of rape. Went back to work.
Not allowed to work.
He should be allowed to be reinstated.
Because of his acquittal in the rape of
case, the ground for his dismissal
becomes non-existent.
His AWOL for a period of time cannot
be considered an abandonment of
work. Abandonment is a matter of
intention. It cannot be lightly inferred or
legally be presumed from certain
equivocal act. Mere absence or failure
to report to work, even after notice to
return, is not tantamount to
abandonment.
Moreover, his acquittal for rape makes
it more compelling to view the illegality
of his dismissal.
The trial court dismissed the case for
insufficiency of evidence. Such ruling is
tantamount to acquittal of the crime
charged and proves that his detention
was without factual and legal basis in
the first place.
Hence, he should be reinstated back to
his work.
17. The absences incurred by the employee
who is prevented to report from work
because of his detention to answer for
some criminal charge is excusable.
If his detention is baseless, in that the
criminal charge against him is not
supported by sufficient evidence, then
he should be reinstated.
18. Dismissal not supported by any
evidence of termination
Employee files and illegal termination
case, but employer denies having
dismiss the employee
Who has the burden of proof?
employee

If there is no dismissal to speak of, no
question of legality or illegality of
dismissal may be raised, and the burden
of proving that the employer has been
dismissed is shifted to the employee.
19. While in cases of illegal dismissal, the
employer bears the burden that the
termination was for a just or authorized
cause, it is necessary that the facts and
the evidence presented therein must be
able to establish a prima facie case that
the employee was really dismissed from
employment.
Before the employer bears the burden
of proving that the dismissal was legal,
the employee must first establish by
substantial evidence the fact of his
dismissal from service
Logically, if there is no dismissal to
speak of, then there is no question as to
the legality or illegality thereof.
20. The burden of proving the fact of
dismissal rests upon the employee, and
not on the employer.
21. There is no dismissal to speak of if the
antecedent circumstances and the
employees contemporaneous act
simply provides proof of their voluntary
termination of employment
22. The fact that employee has filed an
illegal dismissal case, is not by itself
indicator that he has no intention of
abandoning or deserting his
employment
The totality of employee antecedent
acts should be looked into.
23. The remedy if the employee was not
dismissed is to reinstate said employee
but without the corresponding back
wages.
24. No back wages shall be awarded. Back
wages is proper only when employees
are unjustly or illegally dismissed. Here,
they were not dismissed. The employee
must simply be ordered to report back
to work, and for the employer to accept
them in the same or substantially the
same position, but without back wages.
25. He was not terminated from
employment, but was merely
suspended in the administrative case. It
is only proper that she be ordered to
report back to work, and for the
employer to accept them in the same or
substantially the same position, but
without back wages.
Here, there was no evidence to prove
the alleged dismissal asserted by the
employee.
 Employer simply awaited the
employees’ decision to come back to
work.
Reinstatement should be ordered
because it is the most equitable relief
under the circumstances.
26. Is it okay to file a dismissal case to
pre-empt an anticipated dismissal?
Here, she was simply placed under
preventive suspension.
It is premature to file an illegal dismissal
case.
He cannot be dismissed on the same
day when he was preventively
suspended. In fact, she participated in
the investigation of the employer
Here, it was not proper to award
separation pay and back wages.
Right of employee to demand
separation pay and back wages is
always premised on the fact that he was
terminated legally or illegally
27. Refused to be investigated. Instead,
filed an illegal dismissal case.
Employee should not be awarded any of
the reliefs under the law.
28. Dismissal effected because of an
implementation of a law.
There are requirements imposed in the
law, employee failed to comply.
Employer is constrained to dismiss him.
Dismissal is legal. It was made pursuant
to compliance of employer to the
provisions of the law.
29. Termination of employee was
occasioned by the enactment of a law
Inability to secure a certification from
the board of radiologic technology as
required by law
Before, it was not required
She has not passed the board exam
She was terminated for failure to
comply with the law
Was it a just cause?
Yes, it is an analogous circumstance
No malice or ill will can be imputed
upon St Lukes
Her termination was undertaken to
conform to the law.
Otherwise, it will expose the hospital to
possible sanctions, including revocation
of its license
 Employer cannot be expected to retain
her services if she has not passed the
board exam as required by law
Employer should not be penalized for
situations where it had no participation
or control.
30. Teachers; Failed to pass LET
Dismissal was effected due to
implementation of law. It is legal.
The termination was made by operation
of law.
31. Ang vs PNB
Although the transformation of PNB
from GOCC to a private one, did not
result in a break of its life as a juridical
person
The same idea of continuity cannot be
said of its employees.
The law (PD 50) provides for automatic
termination of employee-employer
relationship upon privatization of a
government owned and controlled
corporation.
This is another case of termination by
operation of law
Employee’s termination here is
perfectly legal.
When PNB was privatized, employee’s
employment ceased.
32. Termination results by reason of law
(1) Termination due to stoppage of
work or closure of establishment by
the government due to violation of
employer certain rules, laws and
regulations
Termination here is legal
termination pursuant to visitation
power of Secretary of Labor
(2) Termination resulting from the
phasing out of retail operation of
employer to conform to RA 1180,
repealed by RA 8762
36:40
(3) Forcible closure of Philippine
Veteran’s Bank
(4) Termination due to closure of
employer’s business because a large
portion of its business was acquired
by DA pursuant to CARP
Valid termination of employment
(5) Termination due to closure of
newspaper company because of
martial law
33. Procedural due process
34. 2 notice rule
39:24
35. In authorized causes, procedural due
process, it only involves:
Notice to employer, and notice to DOLE
one month before target of date
36. Procedural requirement in terminating
Regular employment:
Depends if it is a just or authorized case
Just cause; notice, hearing, notice again
Authorized cause: 2 notices
37. Project employment. - no procedural
requirement required. It terminates
upon the completion or termination of
specific project or undertaking for
which such employee has been engaged
But the completion of project was made
known to him at the time of his
engagement, and not later.
38. Seasonal employment. – same rule
above
It terminates or end at the end of the
season
39. Casual. – same rule applies
Terminates upon expiration of casual
employment or period agreed upon by
the parties
Any casual employee allowed to work
for more than a year is considered a
permanent employee insofar as that
work is concerned and insofar as that
job, work, or service continually exists
40. Fixed term employment. – Art 280
Ends at the fixed term agreed upon by
the parties
41. Probationary employment. –
Also enjoys security of tenure during
the effectivity of probationary period
Failure to qualify - ground
45:42
There is no procedural requirement
required, but he must be made known
of the reason why he failed to qualify.
42. Art 283
Disease
Due process
43. Resignation – 285
No due process required
Employee may terminate employment
relationship with or without cause
 Only requirement is that he served
notice of termination at least 30 days
prior to effectivity date of resignation.
47. 286

Off detail or floating status

44. If it is a just cause, there is no need for Cases of security guards

employee to serve notice to the
employer (Art 285)
(1) Serious insult upon the person and
honor of employee
(2) Unjust, inhumane and unbearable
treatment of the employer
(3) Commission of a crime by employer
to the employee
(4) Analogous cases to the foregoing
Security agency is given a maximum
period of 6 month to find a post for the
security guard
Agency not required to pay any salary
within that 6 months
Security guard not required to render
service as well

Security agency should send notice to

the security guard and the DOLE if it will
45. Suspension of operations by the not be able to reinstate or find post for
employer for a maximum of 6 months the guard
which must be bona fide. Element of
good faith is required
48. Floating status is also applied by the SC
Civic duties to contractor-supplied workers like
Military duties merchandisers

Procedural due requirements – not

provided 49.

46. Bonafide suspension of operations –

must comply with 2 notice requirement 50.
under Art 283

Notice to the employee, and notice to

DOLE at least 30 days prior to target
date