2014 Labor Bar Questions and Answers

I.

Linda was employed by Sectarian University (SU) to cook for the members of a
religious order who teach and live inside the campus. While performing her assigned
task, Linda accidentally burned herself. Because of the extent of her injuries, she
went on medical leave. Meanwhile, SU engaged a replacement cook. Linda filed a
complaint for illegal dismissal, but her employer SU contended that Linda was not
a regular employee but a domestic househelp. Decide. (4%)

Answer: Linda is a regular employee. The primary standard to determine the basis
of a regular employment is the reasonable connection between the particular activity
performed by the employee in relation to the usual business or trade of the
employer. In the case provided, Linda worked for the Sectarian University which is
not a household hence, SUs contention that she is a domestic helper is without basis
for she worked directly for SU and not to a household ministering the personal
comfort of any members of a household.

II.

Lucy was one of approximately 500 call center agents at Hambergis, Inc. She was
hired as a contractual employee four years ago. Her contracts would be for a
duration of five (5) months at a time, usually after a onemonth interval. Her re-hiring
was contingent on her performance for the immediately preceding contract. Six (6)
months after the expiration of her last contract, Lucy went to Hambergis personnel
department to inquire why she was not yet being recalled to work. She was told that
her performance during her last contract was below average. Lucy seeks your legal
advice about her chances of getting her job back. What will your advice be? (4%)
Answer: I would advise Lucy to file constructive dismissal with a prayer for
reinstatement to work and backwages, if any. In the case provided, Lucy has
rendered four years of service. Lucy has attained tenure on the first day of her
employment. The repeated rehiring of Lucy for a period of four years is a
manifestation of the need for her service as an evidence of the necessity and
indispensability of her service to Hambergis, Inc. Provided by the nature of her job,
she is deemed to be a regular employee and therefore could only be dismissed for a
just or authorized cause. The expiration of her last contract was neither a just nor
authorized cause, hence she was illegally dismissed. Further, the contracts she signed
in the four year duration of her service is a contract of adhesion, an obvious intent
by Hamburgis, Inc to use periods to bar her regularization.

III.

Lolong Law Firm (LLF), which employs around 50 lawyers and 100 regular staff,
suffered losses for the first time in its history. The management informed its
employees that it could no longer afford to provide them free lunch. Consequently,
it announced that a nominal fee would henceforth be charged. Was LLF justified in
withdrawing this benefit which it had unilaterally been providing to its employees?
(1%)
 (a) yes, because it is suffering losses for the first time
(b) yes, because this is a management prerogative which is not due to any legal
or contractual obligation
(c) no, because this amounts to a diminution of benefits which is prohibited
by the Labor Code
(d) no, because it is a fringe benefit that has already ripened into a
demandable right

Ratio: The losses do not appear to be substantial, so not A. The management

prerogative cannot be the source of a unilateral benefit at one point and the very
justification for its taking away at another, so not B. C is also not the answer because
article 100 of the labor code applies only to benefits enjoyed before or at the time
of the effectivity of the Code (Waterfront ruling 22 Sept 2010, J Peralta). But note
that Azucena opines that, although Article 100 refers to benefits being enjoyed as
of May 1, 1974, the date the Code was promulgated, the Court has applied the non-
diminution provision (as if it were an established labor law principle) to
employment benefits initiated after the issuance of the Code).

IV.

Linis Manpower, Inc (LMI) had provided janitorial services to the Philippine
Overseas Employment Administration (POEA) since March 2009. Its service
contract was renewed every three months. However, in the bidding held in June
2012, LMI was disqualified and excluded. In 2013, six janitors of LMI formerly
assigned at POEA filed a complaint for underpayment of wages. Both LMI and
POEA were impleaded as respondents. Should POEA, a government agency subject
to budgetary appropriations from Congress, be held liable solidarily with LMI for
the payment of salary differentials due the complainant? Cite legal basis of your
answer. (4%)

Answer: Yes. The POEA, although a government agency, is a statutory employer

by operation of article 106 of the Labor Code, as implemented by D.O. 18-A. As
such, it can be held solidarily liable for salary differentials resulting from its job
contractors underpayment of salaries due its workers (Meralco Industrial
Engineering Ruling, 14 March 2008). Relative to the trilateral relationship between
a principal (P), a contractor (C) and worker (W), we hardly read that P may be any
personprivate or public. The Bar question tells us that P may be the POEA, SSS,
GSIS, or ADB. Article 106, LC, makes no distinction; hence, any person can be a
statutory employer. Indeed, only principals of service providers in IT-assisted
outsourcing, PCAB-registered contractors, and canteen concessionaires are beyond
the reach of D.O. 18-A.

V.

Liwayway Glass had 600 rank-and-file employees. Three rival unions-A, B, and C
participated in the certification elections ordered by the Med-Arbiter. 500 employees
voted. The unions obtained the following votes: A-200; B-150; C-50; 90 employees
voted no union; and 10 were segregated votes. Out of the segregated votes, four
(4) were cast by probationary employees and six (6) were cast by dismissed
employees whose respective cases are still on appeal (10%).

(A) Should the votes of the probationary and dismissed employees be counted
in the total votes cast for the purpose of determining the winning labor
union?

Answer: Yes. The segregated votes should be counted as valid votes. Probationary
employees are not among employees who are ineligible to vote. Likewise, the
pendency of the appeal of the six dismissed employees indicates that they have
contested their dismissal before a forum of appropriate jurisdiction; hence, they
continue to be employees for purposes of voting in a certification election (D.O. 40-
03)

(B) Was there a valid election?

Answer: Yes. The certification election is valid because it is not a barred election
and majority of the eligible voters cast their votes.

(C) Should Union A be declared the winner?

Answer: No. Union A should not be declared the winner because it failed to garner
majority of the valid votes. The majority of 500 votes, representing valid votes, is
251 votes. Since Union A received 200 votes only, it did not win the election.

(D) Suppose the election is declared invalid, which of the contending unions
should represent the rank-and-file employees?

Answer: None of the participating unions can represent the rank-and-file employees
for purposes of collective bargaining because none of them enjoys majority
representative status.

(E) Suppose that in the election, the unions obtained the following votes: A-250;
B-150; 40 voted no union; and 10 were segregated votes. Should Union A
be certified as the bargaining representative?

Answer: If the 10 votes were segregated on the same grounds, Union A cannot still
be certified as the bargaining representative because its vote of 250 is still short of
the majority vote of 251. However, if the 10 votes were validly segregated, majority
vote would be 246 votes. Since Union A received more than majority vote then it
won the election.

VI.

Lina has been working as a steward with a Miami, USA-based Loyal Cruise Lines
for the past 15 years. She was recruited by a local manning agency, Macapagal
Shipping, and was made to sign a 10-month employment contract everytime she left
for Miami. Macapagal Shipping paid for Linas round-trip travel expenses from
Manila to Miami. Because of a food poisoning incident which happened during her
last cruise assignment, Lina was not re-hired. Lina claims she has been illegally
terminated and seeks separation pay. If you were the Labor Arbiter handling the
case, how would you decide? (4%)

Answer: I will dismiss the complaint for illegal dismissal. Lina is a seafarer. As such,
she is a contractual employee who cannot require her employer to enter into a
contract of employment with her under the Principle of Freedom of Contracts. In
effect, Lina cannot be awarded separation pay. As an alternative relief, separation
pay is proper only when there is a finding of illegal dismissal.

VII.

Non-lawyers can appear before the Labor Arbiter if: (1%)

(A) They represent themselves.

(B) They are properly authorized to represent their legitimate labor organization
or member thereof.
(C) They are duly-accredited members of the legal aid office recognized by the
DOJ or IBP.
(D) They appear in cases involving an amount of less than Php 5,000.

Ratio: Not (B) because it restricts the term organizations to legitimate labor
organizations. Not (C) because the DOJ is not an accrediting agency. Not (D)
because the not exceeding Php 5,000 is a jurisdictional rule, not a rule on law
practice.

VIII.

As a result of a bargaining deadlock between Lazo Corporation and Lazo employees

Union, the latter staged a strike. During the strike, several employees committed
illegal acts. Eventually, its members informed the company of their intention to
return to work. (6%)

(A)Can Lazo Corporation refuse to admit the strikers?

Answer: No. A strike is a temporary stoppage of work only. Therefore, strikers can
go back to their work in the event of a voluntary abandonment of their strike.

(B) Assuming the company admits the strikers, can it later on dismiss those
employees who committed illegal acts?

Answer: After admission, the company can hold the strikers behind the illegalities
accountable for their acts. If found to have committed acts justifying a dismissal,
said employees can be terminated after due process.

(C) If due to prolonged strike, Lazo Corporation hired replacements, can it refuse
to admit the replaced strikers?

Answer: No. The positions left behind by strikers are deemed legally unoccupied.
Moreover, the hiring of replacement workers does not terminate employer-
employee relationship because a strike is a temporary stoppage of work only. Finally,
replacement workers are deemed to have accepted their engagement subject to the
outcome of the strike.

IX.

Luisa Court is a popular chain of motels. It employs over 30 chambermaids who,

among others, held clean and maintain the rooms. These chambermaids are part of
the union rank-and-file employees which has an existing collective bargaining
agreement (CBA) with the company. While the CBA was in force, Luisa Court
decided to abolish the position of chambermaids and outsource the cleaning of the
rooms to Malinis Janitorial Services, a bona fide independent contractor which has
invested in substantial equipment and sufficient manpower. The chambermaids filed
a case of illegal dismissal against Luisa Court. In response, the company argued that
the decision to outsource resulting from the new managements directive to
streamline operations and save on costs. If you were the Labor Arbiter assigned to
the case, how would you decide? (4%)

Answer: I would declare the chambermaids to have been illegally dismissed. The
chambermaids are regular employees for performing necessary or desirable to the
main trade of the Luisa Court. As such, they enjoy security of tenure. The job
contracting arrangement between Luisa Court and Malinis Janitorial Services is
prohibited by D.O. 18-A because it has the effect of introducing workers to displace
Luisa Courts regular workers.

X.

Luisa was hired as a secretary by the Asian Development Bank (ADB) in Manila.
Luisas first boss was a Japanese national whom she got along with. But after two
years, the latter was replaced by an arrogant Indian national who did not believe her
work output was in accordance with international standards. One day, Luisa
submitted a draft report filled with typographical errors to her boss. The latter
scolded her, but Luisa verbally fought back. The Indian boss decided to terminate
her services right then and there. Luisal filed a case for illegal dismissal with the
Labor Arbiter claiming arbitrariness and denial of due process. If you were the Labor
Arbiter, how would you decide the case? (4%)

Answer: I will dismiss the complaint for illegal dismissal. Luisa committed serious
misconduct. Her Indian boss, regardless of his arrogant nature, had the clear right
to reprimand her for her poor performance. Absent justification for verbally fighting
back, Luisas act amounted to serious misconduct. Therefore, her dismissal was
valid. However, she was not accorded statutory due process. For this reason, I will
award her nominal damages of Php 30,000.

XI.

Lionel, an American citizen whose parents migrated to the U.S. from the
Philippines, was hired by JP Morgan in New York as a call center specialist. Hearing
about the phenomenal growth of the call center industry in his parents native land,
Lionel sought and was granted a transfer as a call center manager for JP Morgans
operations in Taguig City. Lionels employment contract did not specify a period for
his stay in the Philippines. After three years of working in the Philippines, Lionel
was advised that he was being recalled to New York and being promoted to the
position of director of international call center operations. However, because of
certain "family reasons," Lionel advised the company of his preference to stay in the
Philippines. He was dismissed by the company. Lionel now seeks your legal advice
on: (6%)

(A) Whether he has a cause of action.

Answer: Yes, he has a cause of action because he was illegally dismissed. A

promotion is in the nature of a gift or reward. As such he has a right to refuse it.
There is no law that compels an employee to accept a promotion. When Lionel
advised the company of his preference to stay in the Philippines due to family
reasons, he was exercising a right and he cannot be punished for it. He who uses his
own legal right injures no one. (Dosch v. NLRC, et.al., GR No. L-51182 [1983]).

(B) Whether he can file a case in the Philippines.

Answer: Yes, he can file a case in the Philippines. Section 1, Rule IV of the NLRC
Rules of Procedure provides that all cases which Labor Arbiters have authority to
hear and decide may be filed in the Regional Arbitration Branch having jurisdiction
over the workplace of the complainant or petitioner. Workplace is defined as the
place or locality where the employee is regularly assigned at the time the cause of
action arose. Lionel had been working as a call center manager of a company which
operates in Taguig City when he was advised of being promoted and to be recalled
to New York. His workplace is in the Philippines. Hence, the Labor Arbiter has
jurisdiction over the case.

(C) What are his chances of winning?

Answer: He has a good chance of winning. An employers decision to transfer or

reassign or promote an employee is an exercise of management prerogative.
However, the exercise of this right is not incontestable. It has been ruled in PT&T
vs. CA, G.R.No. 152057, September 29,2003, that an employee cannot be promoted,
even if merely as a result of a transfer, without his consent. A transfer that results in
promotion or demotion, advancement or reduction or a transfer that aims to lure
the employee away from his permanent position cannot be done without the
employees consent. An employees refusal to accept promotion cannot be
considered as insubordination or willful disobedience of a lawful order of the
employer. Removal due to this reason constitutes removal without just cause and is
therefore an illegal dismissal.

XII.

Which of the following groups does not enjoy the right to self-organization? (1%)
(A) those who work in a non-profit charitable institution
(B) those who are paid on a piece-rate basis
(C) those who work in a corporation with less than ten (10) employees
(D) those who work as legal secretaries
Ratio: The Labor Code limits the ineligibility of managerial employees to join, form
and assist any labor organization. It has been held that this prohibition has been
extended to confidential employees who assist or act the managerial employees in a
fiduciary manner. The former are privy to sensitive and highly confidential records
and may become sources of undue advantage like acting as spies of either party to a
collective bargaining agreement. In Pier 8 Arrastre & Stevedoring Services, Inc. v.
Roldan-Confesor, it has been ruled that legal secretaries who are tasked with such
duties as required by the legal personnel of the corporation, fall under the category
of confidential employees.

XIII.

Don Luis, a widower, lived alone in a house with a large garden. One day, he noticed
that the plants in his garden needed trimming. He remembered that Lando, a 17-
year old out-of-school youth, had contacted him in church the other day looking for
work. He contacted Lando who immediately attended to Don Luiss garden and
finished the job in three days.
(A) Is there an employer-employee relationship between Don Luis and Lando?

Answer: Yes, there is employer-employee relationship between Don Luis and

Lando . Firstly, Lando who was looking for work finally rendered personal services
for Don Luis. Secondly, Lando could not have been the master of his time, means
and methods under his circumstances. (Sec.8, RA 8282).
(B) Does Don Luis need to register Lando with the Social Security System (SSS)?

Answer: No. Don Luis does not need to register Lando with the SSS because he is
a purely casual employee, hence outside SSS coverage. Neither should he report
Lando for SSS coverage under the Kasambahay Act because, although a gardener,
he is an occasional if not sporadic employee. Therefore, he is not a kasambahay who
is entitled to SSS coverage (RA 10361).

XIV.

Luisito has been working with Lima Land for 20 years. Wanting to work in the
public sector, Luisito applied with and was offered a job at Livecor. Before accepting
the offer, he wanted to consult you whether the payments that he and Lima Land
had made to the Social Security System (SSS) can be transferred or credited to the
Government Service Insurance System (GSIS). What would you advice?
Answer: I would tell Luisito that, under the Limited Portability Law, he will carry
with him his creditable service and paid contributions as he moves from one system
to the other. Hence, he may accept the job offer without fearing that he would lose
his years of service in the private sector. In fact, they can be totalized with his years
of service in the public sector in the event that he would not be able to qualify for
benefits due solely to insufficiency of creditable service.

XV.

Our Lady of Peace Catholic School Teachers and Employees Labor Union (OLPCS-
TELU) is a legitimate labor organization composed of vice principals, department
heads, coordinators, teachers, and non-teaching personnel of Our Lady of Peace
Catholic School (OLPCS). OLPCS-TELU subsequently filed a petition for
certification election among the teaching and non-teaching personnel of OLPCS
before the Bureau of Labor Relations (BLR) of the Department of Labor and
Employment (DOLE). The Med-Arbiter subsequently granted the petition and
ordered the conduct of a joint certification election for the teaching and non-
teaching personnel of OLPCS. May OLPCS-TELU be considered a legitimate labor
organization?

Answer: Yes, the OLPCS-TELU is a legitimate labor organization. Its mixed-

membership which includes supervisors and rank-and-filers does not affect its
legitimacy. However, Article 255 provides that Managerial employees are not
eligible to join, assist or form any labor organization. Supervisory employees shall
not be eligible for membership in the collective bargaining unit of the rank-and-file
employees but may join, assist or form separate collective bargaining units and/or
legitimate labor organizations of their own. The rank and file union and the
supervisors union operating within the same establishment may join the same
federation or national union. The only effect of such membership is that the
supervisors in the persons of vice-principals and department heads are deemed
automatically removed.

XVI.

Samahang East Gate Enterprises (SEGE) is a labor organization composed of the

rank-and-file employees of East Gate Enterprises (EGE), the leading manufacturer
of all types of gloves and aprons. EGE was later requested by SEGE to bargain
collectively for better terms and conditions of employment of all the rank -and-file
employees of EGE. Consequently, EGE filed a petition for certification election
before the Bureau of Labor Relations (BLR). During the proceedings, EGE insisted
that it should participate in the certification process. EGE reasoned that since it was
the one who filed the petition and considering that the employees concerned were
its own rank-and-file employees, it should be allowed to take an active part in the
certification process. Is the contention of EGE proper? Explain.

Answer: As an employer, when requested to bargain collectively in a bargaining unit

where no registered collective bargaining exists, EGE could file the petition for
certification election as provided by IRR of Labor Code, Book V, Rule VIII as
amended by DO No.40-03. After it filed the petition, however, it reverted to its
standby status. Therefore, it could not interfere with the selection process which
was the exclusive prerogative of its workers. It could only participate in the
inclusion-exclusion proceedings, and nowhere else.

XVII.

Philhealth is a government-owned and controlled corporation employing thousands

of Filipinos. Because of the desire of the employees of Philhealth to obtain better
terms and conditions of employment from the government, they formed the
Philhealth Employees Association (PEA) and demanded Philhealth to enter into
negotiations with PEA regarding terms and conditions of employment which are
not fixed by law. (4%)
 (A) Are the employees of Philhealth allowed to self-organize and form PEA and
thereafter demand Philhealth to enter into negotiations with PEA for better
terms and conditions of employment?

Answer: Yes, the employees of Philhealth are allowed to self-organize and form
PEA and thereafter demand Philhealth to enter into negotiations with PEA for
better terms and conditions of employment because under the Executive Order
(E.O.) 180, Philhealth employees can organize. Through their organization, they can
negotiate with Philhealth over terms and conditions of employment not fixed by its
charter, Civil Service Law or applicable salary standardization law.

(B) In case of unresolved grievances, can PEA resort to strikes, walkouts, and
other temporary work stoppages to pressure the government to accede to their
demands?

Answer: No, the PEA cannot resort to strikes, walkouts and other temporary work
stoppage in case of unresolved grievances. Although the right to organize implies
the right to strike, law may withhold said right. Executive Order 180 is the law which
withholds government employees the right to strike. Hence, they cannot resort to
strike and other similar concerted activities to compel concessions from the
government.

XVIII.

The procedural requirements of a valid strike include: (1%)

(A) a claim of either unfair labor practice or deadlock in collective

bargaining
(B) notice of strike filed at least 15 days before a ULP-grounded strike or at
least 30 days prior to the deadlock in a bargaining- grounded strike
(C) majority of the union membership must have voted to stage the strike
with notice thereon furnished to the National Conciliation and Mediation
Board (NCMB) at least 24 hours before the strike vote is taken
(D) strike vote results must be furnished to the NCMB at least seven (7) days
before the intended strike

Ratio: A. The procedural requirements of a valid strike include (a) a claim of either
unfair labor practice (ULP) or deadlock in collective bargaining. The options B, C
and D are refers to strike procedures. B refers to cooling-off period, C refers to
strike vote and D refers to the strike ban. What is not expressly referred to in the
options is notice to strike. It is this procedural requirement which includes ULP or
bargaining deadlock which are the only strike grounds. Therefore, the procedural
requirements of a valid strike include a claim for ULP or deadlock in the collective
bargaining. In other words, in other words the procedural requirements of a valid
strike are noticed, cooling-off period, strike to vote and strike ban. It is in notice
that ULP and deadlock in CBA are included.
XIX.
Lincoln was in the business of trading broadcast equipment used by television and
radio networks. He employed Lionel as his agent. Subsequently, Lincoln set up
Liberty Communications to formally engage in the same business. He requested
Lionel to be one of the incorporators and assigned to him 100 Liberty shares. Lionel
was also given the title Assistant Vice-President for Sales and Head of Technical
Coordination. After several months, there were allegations that Lionel was engaged
in under the table dealings and received confidential commissions from
Libertys clients and suppliers. He was, therefore, charged with serious misconduct
and willful breach of trust, and was given 48 hours to present his explanation on the
charges. Lionel was unable to comply with the 48-hour deadline and was
subsequently barred from entering company premises. Lionel then filed a complaint
with the Labor Arbiter claiming constructive dismissal. Among others, the company
sought the dismissal of the complaint alleging that the case involved an intra-
corporate controversy which was within the jurisdiction of the Regional Trial Court
(RTC). If you were the Labor Arbiter assigned to the case, how would you rule on
the companys motion to dismiss? (5%)

Answer: I will deny the motion. Section 25 of the corporation code enumerates four
specific officers that are considered Corporate officers in law: (a) President; (b) the
Corporate Treasurer; (c) the Corporate Secretary and (d) Other corporate officers
may be designated under the By-laws of the corporation without getting afoul with
the law. Licoln is clearly not one of them. Therefore, absent the corporate
controversy, the Labor Arbiter shall have the original and exclusive jurisdiction over
the case as provided under Art. 217(a) (2).

XX.

Lito was anticipating the bonus he would receive for 2013. Aside from the 13th
month pay, the company has been awarding him and his other co-employees a two
to three months bonus for the last 10 years. However, because of poor over-all sales
performance for the year, the company unilaterally decided to pay only a one month
bonus in 2013. Is Litos employer legally allowed to reduce the bonus? (4%)

Answer: No. Although these benefits are considered as gratuitous, founded on the
generosity of the employer, wherein, the law allows the employers to prescribe its
own rules on the computation. However, if the employer has been implementing a
certain manner or basis for the computation of these benefits for a time, such
manner or basis for computation may be considered as having ripened into a
company practice, and as such, the employer cannot unilaterally revise or withdraw
such manner or practice of the computation without violating the prohibition on
non-diminution of benefits provided under article 100 of the labor code.
Jurisprudence has not laid down any rule requiring a specific number of years on
what constitutes long period. But it was later held that two (2) years is considered
as a long period of time. Therefore, having been enjoyed for the last 10 years, the
granting of the bonus has ripened into a company practice or policy which can no
longer be peremptorily withdrawn.