6-23-11
In an employment contract, it is imbued with public interest
therefore the government may interfere.
Other persons who have interest in an employer-employee
relationship is the PUBLIC. Ex. During lockouts the public is
affected
compared to other contracts, an employment contract must yield
to the common good
LABOR – exertion by a human being of his physical or mental
effort towards the production of goods or services. It may refer to
a job or service.
Are rules and regulations promulgated by the DOLE considered
laws?
- No, because DOLE does not have legislative power but
they have the force and effect of law.
Is the rule making power of the secretary absolute?
- it should not limit or expand the law which it seeks to
enforce
Are circulars considered law?
- they are merely interpretations.
If there is conflict between the implementing rules and the
statute, which should prevail?
- the statute should prevail
SONZA VS ABS-CBN – there was a policy instruction. It classified
employees into programme and station employees. It applies to
the broadcast industry. ABS-CBN applied the policy instruction
with regard to the classification of employee. The SC ruled that
the policy instruction has no basis in fact and law. So it reverted to
the classification of employees under the labor code. It showed
that the order should have basis. Neither should it expand nor
restrict the law. Otherwise it is void.
The same is true in another case (SAN JUAN DE DIOS CASE) where
the DOLE came up with a policy instruction that for workers in
hospitals or clinic who work for 7 days they will be entitled to full
pay. It expanded the law and thus void.
PEREZ VS NLRC – whenever you terminate an employee, aside
from giving him the twin notice requirement, the employer is
required to conduct a formal conference. The SC tried to check
what the law says. The law requires an ample opportunity to be
heard. A formal conference requirement is in excess of the law. In
case of conflict bet the law and implementing rules, the former
should prevail.
What are the constitutional rights of workers in relation to labor
relations?
1. Right to self-organization
2. Right to conduct collective bargaining or negotiation
with management
3. Right to engage in peaceful concerted activities
including strike, in accordance with law
4. Right to enjoy security of tenure
5. Participate in policy and decision-making processes
affecting worker’s rights and benefits as may be
provided by law
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
What are the tests in determining ER-EE relationship?
- The two tests are the four-fold test and the two-tier
test
Four fold test:
- Selection and engagement of employees
- Payment of wages
- Power of dismissal
- Power of control over employee’s conduct and over the
means and methods by which the work is to be
accomplished
Power of control is the most controlling
Aside from the 4 fold test, in case of conflict, to determine the
existence of ER-EE relationship, use the 2-tiered test. (better test)
1. Putative employer’s control, known as the right to control test
2. Economic reality test – pieces of evidence showing that the
employee is economically dependent. Ex: Name on the payroll,
payslip, company ID, uniform, SSS
what are the chief characteristics of an employee?
a. economic dependence to another
b. subordination in work relation – does not have control
over the means and methods over the work
Difference from independent contractor
- what s an independent contractor? One who exercises
his profession or practices an independent calling.
- An individual-independent contractor is someone who
is engaged in a business that is distinct from someone
who hires him.
- One who exercises a profession or calling or one
engaged in a small business of his own, offering services
to the public, NOT being subject to control with regard
to the means and method in performing services except
to the results thereof.
- Example of independent contractor- dentist, he/she can
offer his/her services to the public. There is no
subordination of work relations.
SONZA case- he was an independent contractor
COCA-COLA BOTTLERS VS CLIMACO – Dr. Climaco was retained by
Coca-Cola as a doctor to work in the plant of Coca-Cola but he was
an independent contractor because Coca-Cola lacked the power of
control over Dr. Climaco.
TONGKO VS MANULIFE- he was considered an employee but in
the 2011 case the SC reversed the main decision.
What is security of tenure?
- Right of an employee to continue with his employment
until he is removed or dismissed with just or authorized
cause.
Is it available to any employee?
- Yes, except casual employees.
Scope of security of tenure
- depends on the type of employment
Kinds of employment under the labor code:
1. Regular
1
 - an employment shall be deemed to be regular where
the EE has been engaged to perform activities which are
usually necessary or desirable in the usual business or
trade of the ER
2. Seasonal
3. Casual
4. Probationary
5. Project
Is the list exclusive?
- No, there is the FIXED TERM/PERIOD employment.
Analogous to project employment.
BRENT SCHOOL CASE: Why was his employment not considered
regular? The employment is necessary or desirable but what is
determinative is not the nature of work but the period or term
fixed.
Can you place a regular employee in probationary employment?
YES.
What is meant by probation?
- It is the trial period during which the ER determines the
fitness of the EE to qualify for regular employment
For whose benefit is the probationary period?
- For both the EE and ER.
Period for probation: not more than 6 months
Can the ER fix a period of probation less than 6 months?
- Yes.
Can the ER who fixes the period to 6 months unilaterally shorten it
without the consent of the EE?
- No, fixing of period is supposed to be for the benefit of
both ER and EE.
If longer probation period is allowed, it would not be for the
benefit of the EE because probationary employees receive less
benefits than regular employees.
If you are placed under probation, does the law require that the
ER inform the EE of the reasonable standards for the EE to
become a regular employee?
- Yes, at the time of the engagement of the EE.
Can the EE be informed about the standards 2 months after the
engagement? NO.
What is the effect on the employment status of an EE if he is not
informed of the standards?
- He will be a regular employee (see implementing rules)
When does a PE become regular?
a. by operation of law (beyond 6 months)
b. when the PE successfully passed the standards that
were made known to EE at the time of the engagement
c. when the standards were not made known to the PE at
the time of engagement (implementing rule, book 6,
rule 1, sec 6)
Does the standard have to be reasonable? YES.
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
Example, teachers: competency, work attitude, punctuality,
attendance
How would the EE know whether he/she has passed the
standards?
- Evaluation based on the standards at the end of the
period
What is casual employment?
- One where an EE whose job is not necessary or
desirable to the usual trade or business.
- Example: carpenter working for a school – his job is not
necessary or desirable in the function of the school.
Once carpentry work is no longer needed his
employment is deemed ended.
- Coterminous with the activity which he was engaged.
CE becomes RE with respect to the activity in which he is
employed after one year.
Exceptions to regular employment
a. Project employment – fixed for a specific project or
undertaking the completion or termination of which has
been determined at the time of the engagement of the
EE.
ex: construction of LRT station. After the work is
completed the employment is deemed ended or
terminated.
- Can you hire the mason as regular employee? As
probationary employee? Yes.
- Even if more than one year he is still not regular.
- Two types of activities (COSMOS CASE):
1. Particular job WITHIN the regular or usual business
of the ER but is DISTINCT and SEPARATE, and
IDENTIFIABLE as such from the undertakings of the
company.
2. Particular job NOT WITHIN the regular or usual
business of the ER company but is DISTINCT and
SEPARATE, and IDENTIFIABLE from the ordinary or
regular business operations of the ER.
- Do you need to notify when the project will be
completed? Yes. It must be explained to the EE at the
time of engagement in writing.
- Has there been an instance when a Project EE becomes
a Regular EE? MARAGUINOT CASE: repeated re-hiring
and the fact that the job is a vital part of the business
can make one a regular EE.
b. Seasonal employment- the work or service to be
performed is seasonal in nature and the employment is
for the duration of the season.
- When is an undertaking considered seasonal?
1. When its operation is limited to a regular, annual,
or recurring part or parts of each year and
regularly closes during the remainder of the year
due to climatic or other natural causes.
2. Activity is agricultural where the crops are
available only in certain times of the year.
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6-30-11
What is an example of a seasonal employment?
- In the sugar industry. During the time when sugar cane
is not in season the workers may find employment
somewhere else.
What about catching of fish? Is it a seasonal industry?
- No. Because the employment does not depend on the
season for one to be able to catch fish. There may be
differences in the amount of the catch depending on
the season but still the employment continues.
Can you be a regular seasonal employee?
- Yes. If he is continually rehired by the employee or
there is continual rehiring for every season.
During off season, what happens to his employment?
- His employment is deemed suspended. He is free to
seek employment elsewhere but when the season
arrives he is required to go back. They are merely
considered on leave of absence without pay.
CASE: MANILA HOTEL VS CIR
Is the enumeration of the kinds of EEs under the LC exclusive?
- No. Because there is also the FIXED TERM EE. It cannot
be found in the LC but it is analogous to a Project EE.
How do you differentiate a Fixed Term EE from a Project EE?
- A project EE is employed for a particular undertaking or
for the completion of a certain project while in a fixed
term employment there is merely a time fixed. In a
fixed term employment the nature of the work is not
necessary but it is the duration of the work which is
important.
In a fixed term employment, the parties agree when the
employment shall start and when it shall end.
What is the similarity between project EE and seasonal EE?
- In both cases it ends at a particular time. For project,
upon the completion of the project. For seasonal, upon
the end of the season. For fixed term, upon the end of
the term.
Is this not against the provision of the Labor Code?
- In the case of BRENT SCHOOL, a fixed term employment
was considered valid.
What are the requisites for a valid fixed term employment?
1. The fixed term was knowingly and voluntarily
agreed upon by the parties
2. The EE is with equal footing with the ER and that
no moral dominance is exercised by the latter.
Probationary EE – an employee who is made to undergo a trial
period at the end of which his performance is assessed whether
satisfactory or not. If satisfactory it is followed by the EE becoming
regular and if not satisfactory it is followed by his termination.
What is the maximum period for probation? 6 months
When we speak of 6 months it is 180 days. This is important
because this would determine when you will be considered a
regular employee.
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
What happens when a probationary EE is made to work beyond 6
months?
- He is already deemed a regular employee
Is there any exception to the 6 months rule under the LC?
- When it involves an apprenticeship agreement
- Academic personnel
What are the laws applicable to academic personnel?
- Manual of Regulations for Private Higher Education, for
those teaching in the tertiary level
- Manual of Regulations for Private Basic Education
What is the period of probation for those academic personnel
working in private higher education?
- Not more than six consecutive semesters or nine
consecutive trimesters of satisfactory service
If you are an academic personnel in a private educational
institution, when can you become regular or permanent?
- Sec. 118 (MRPHE) A full-time academic teaching
personnel who has satisfactorily completed his/her
probationary employment, and who possesses the
minimum qualifications required by the Commission
and the institution, shall acquire a regular or permanent
status if he/she is re-hired or reappointed immediately
after the end of hi/her probationary employment.
What is the period of probation for those in private basic
education?
- Teaching personnel – not more than 3 years
- Non-teaching personnel – not more than 6 months
What are the classifications of EEs in the construction industry?
- Workers in the construction industry could either be
project or non-project EEs
- Non-project EEs are further classified as either
probationary, regular, or casual EEs
How about those working in private education institutions, how
are they classified?
- Academic and Non-academic
Who are academic personnel under the Manual? Non-academic?
- Academic personnel include those who are formally
engaged in actual teaching or in research assignments,
either on full-time or part-time basis, as well as those
who possess certain prescribed academic function
directly supportive of teaching, such as registrars,
librarians...
- Non-academic personnel are rank-and-file employees
who are engaged in administrative functions and
maintenance of the academic institution.
Who is considered a full-time academic personnel?
- A full-time academic personnel is one who meets all the
following requirements
1. Who possesses at least the minimum academic
qualifications prescribed under the Manual
2. Who is paid monthly or hourly, based on the
regular teaching loads
3. Who devotes not less than 8 hours of work a day
to the school
3
 4. Who have no other remunerative occupation
elsewhere requiring regular hours of work, except
when permitted by the higher education
institution
5. Who is not teaching full-time in any other higher
education institution
- If you do not meet the requirements then you are part-
time.
- If you are teaching and at the same time holding a
position in the government, you are a part-time
academic employee.
Can a part-time academic personnel acquire regular or permanent
employment?
- You should be a full-time academic personnel in order
to become a regular or permanent employee
How do you classify a guidance counsellor?
- Academic personnel
What is the period of probation for non-academic personnel?
- Not more than 6 months, you apply the Labor Code.
Why is the period of probation for academic personnel longer
than non-academic personnel?
- whimsically
The Manual applies to PRIVATE educational institutions.
PIER 8 ARRASTRE AND STEVEDORING case – by the nature of the
industry they hire arrastre and stevedores. While they have
regular workers it is possible that these regular workers are
absent from time to time. Whenever these regular workers are
absent, this may result to the unnecessary interruption of the
operation. So if this arrastre or stevedoring company decides to
hire EEs who will report to work only when the regular workers
are absent, how do you classify the employment status of these
relievers?
- It is akin a seasonal or project or term employee, albeit
on a daily basis.
- Such classification is unique to the arrastre industry.
You cannot apply this to other industries.
What is casual employment?
- This is where an EE is engages to perform a job, work,
or service which is merely incidental to the business of
the ER, and such job, work, or service is for a definite
period made known to the EE at the time of the
engagement.
- If more than one year, you become regular EE with
respect to the activity in which you are employed.
The ER has the prerogative to classify the status of his EEs as
either regular, project, probationary, casual, or seasonal subject to
limitations provided by law. It must not circumvent the security of
tenure of the EE.
Aside from the right of the ER to classify his EEs, are there other
management prerogatives?
- The right to hire
- The right to promote
- The right to demote
- The right to transfer
- The right to dismiss
What is promotion?
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
- It is the advancement or scalar ascent from one position
to another with an increase in duties and
responsibilities as authorized by law and usually
accompanied by an increase in salary.
In the exercise of the right to promote, is it necessary that the EE
accepts the promotion?
- YES. If he does not accept then there is no promotion.
What is the reason why the consent of the EE is important in
promotion?
- Because promotion is in the nature of a gift or donation
thus it requires the acceptance to be valid and binding.
The opposite of promotion is demotion. What is meant by
demotion?
- It means the movement from one position to another
with a diminution in duties and/or status or rank, not
necessarily with a reduction in salary.
Is the exercise of demotion an active right of the ER? Explain.
- Yes. It is subject to the limitation provided by law.
What are the limitations to the right to demote?
1. It must not be exercised arbitrarily, capriciously, or
2. It must be for a cause
3. It must pass the test of reasonableness, equity and
good faith
Does it require due process?
- Yes. The EE must be given notice regarding the
demotion and the cause or causes thereof.
Can you demote an employee if your purpose is to get rid of him?
- No. It would be tantamount to constructive dismissal.
- The demotion must be for a valid cause or any reason
justified or sufficient to issue a demotion.
If demotion amounts to constructive dismissal, what relief will the
EE who was demoted be entitled to?
- Reinstatement to his position prior to demotion
- Backwages and other benefits he was entitled to
receive
Is promotion found in the Labor Code?
- No, because it is a management prerogative. It is an
inherent right of an ER
- The same with demotion and transfer.
Transfer – it is the lateral movement from one position to another
of equivalent rank, level or salary, without break of service.
Is that prerogative (transfer) absolute?
- No. There are limitations set by law such that:
a. It must not be for the inconvenience of the EE
b. it must be reasonable
c. it must not be made in bad faith
d. the transfer must be to maximize the productivity of
the EE.
Is the reshuffling of employees in the bank wherein they transfer
employees from one branch to another a valid exercise of the
management prerogative?
- Yes. This is done for security purposes.
4

Can an EE refuse transfer because it is inconvenient to him?
- Mere reasons of inconvenience does not justify the
refusal to be transferred
When would the transfer constitute constructive dismissal?
- NORKIS CASE
Validity of certain stipulations:
The ER in the exercise of management prerogative may stipulate
in the employment contract several stipulations with the EE so
long as they are not contrary to law, public policy, morals. One of
the common stipulations is the Non-competing or Non-
competitive clause or post employment competitive employment
ban. Is this valid? YES.
A policy of a pharmaceutical company prohibiting its employees
from having personal or marital relationships with employees of
rival companies, is this valid?
- YES. There might be a violation of trade secrets if such
relationships are allowed. The ER has the right to
protect his economic interests under the Constitution
and the right to a fair and reasonable return on
investments. (DUNCAN VS GLAXO case)
How about a policy prohibiting spouses from being employed in
the same company, is this valid?
- This was answered in the case of STAR PAPER
CORPORATION where the court ruled that for the policy
to be valid there must be a compelling business
necessity for which no alternative exists other than the
discriminatory practice.
Can you think of a situation where conflict of interest might arise?
- For example the wife works in the HR department and
the husband works in a different department. If the
husband could not account for a certain transaction it is
the duty of the HR to verify. The wife might tamper with
evidence in order to clear the husband’s name. She
could inhibit herself from the investigation.
Policy on nepotism, wherein an ER prohibits the employment of a
relative of an existing EE to a certain degree of consanguinity or
affinity, is this valid?
- YES. Because there could be certain biases that would
prevent you from performing your assigned job
properly.
CASE: RIVERA VS SOLIDBANK
How about post-employment competitive employment ban,
wherein an EE is prohibited after the separation from joining a
competitor, is this valid?
- YES. However, this is subject to limitation on duration
and place. It should only be for a certain period of time
that is reasonable and the prohibition should only apply
in a particular place.
A policy which requires an EE to stay with the company for a
period of one year after being given training and that if the EE
chooses to leave he shall reimburse the company for the expenses
paid for his training, is this valid?
- YES, because an ER is entitled to a reasonable return of
his investment.
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
- The aspect of requiring the EE to reimburse the
company is based on the principle against unjust
enrichment.
Termination of employment requires the compliance of what
requirements?
- For there to be valid termination it must comply with 2
requirements:
1) Substantive requirement refers to the compliance
with the substantive due process.
 Entails those substantive causes which would
allow termination as provided for by law
2) Procedural requirement refers to procedural due
process.
Is the right to terminate found in the Labor Code? YES.
If it were not included in the Labor Code, can the ER still exercise
the power to dismiss?
- Yes. It is an inherent management prerogative.
What is actual dismissal and how do you differentiate it with
constructive dismissal?
- Actual dismissal- when voluntarily undertaken by the ER
- Constructive dismissal – when there is involuntary
resignation on account that the continued employment
of the EE is rendered unlikely, unreasonable or even
impossible. Ex: invalid transfer
What is the right to security of tenure?
- Means the no employee shall be terminated from his
employment without just or authorized cause
When we speak of dismissal for a cause it could either be just
cause or authorized cause.
What are the just causes of dismissal under the Labor Code?
- ARTICLE 282. Termination by employer. — An
employer may terminate an employment for any of the
following just causes:
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his
duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representative; and
(e) Other causes analogous to the foregoing.
A. Serious misconduct
- It is improper conduct so grave as to offend normal
standards of decency.
5
Must it be work related? YES.
What are the elements to constitute serious misconduct?
1. An improper act
2. Willful in nature
3. Of a grave and aggravated character not merely
trivial or unimportant
4. Work related
Example of serious misconduct:
- Security guard sleeping on the job
- Security guard having sex inside the premises he is
supposed to be guarding
B. Willful disobedience to the lawful orders of the employer in
connection with the EEs work.
When is disobedience considered willful?
- When there is wanton disregard to follow the orders of
the employer
What are the requisites to constitute willful disobedience?
1. The orders must be lawful and reasonable
2. The orders must have been made known to the EE
3. The lawful orders must be in connection with the
work of the EE
Example of willful disobedience:
- A secretary who refuses to make a report
- If a secretary refuses to write a check is willful
disobedience even if the EE knows that there are
insufficient funds because it only involves the
mechanical act of writing. If the order was to deliver the
check thereby exposing the company to criminal liability
then the order already becomes unlawful.
A directive of the ER for the EE to render overtime, is that a lawful
directive? If there is refusal does it qualify as willful disobedience?
- Yes. It is the right of the ER to order the EEs to render
overtime work if the need arises.
- If the EE refuses to render overtime then it is willful
disobedience.
C. Gross and habitual neglect of duty
- Neglect of duty means that there is absence or failure
to exercise a degree of diligence or care
When can it be considered gross?
- When it is grave or serious.
When is it habitual?
- Repetition of the similar act
Example of gross and habitual neglect:
- Prolonged absence without any reason
- Tardiness- if the job requires being punctual and there
is no reason for the tardiness then it will be gross
neglect
Can there be termination on the ground of gross negligence even
if the act is not habitual?
- Yes, as an exception. Where gross neglect is sufficient
to terminate one’s employment.
D. Fraud or willful breach of trust
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
- Any commission or concealment which involves a
breach of legal duty, trust and confidence justly
reposed, and is injurious to another.
Example of fraud:
- Falsification of time cards
When will willful breach of trust apply?
- When the position of the EE involves a position of trust.
What are considered as positions of trust?
- Where the EE is routinely and regularly charged with
the care and custody of the EE’s money or property
- EEs occupying positions of trust and confidence; or
managerial EEs or those vested with powers or
prerogatives to lay down management policies.
When can the breach of trust be considered willful?
- When it is done intentionally or deliberately
E. Commission of a crime or offense by the EE against the person
of his ER or any immediate member of his family or his duly
authorized representatives
Is conviction necessary?
- No. Only substantial evidence is necessary for
termination based on this ground.
7-7-11
How can you say that it is an analogous case?
- HANCOCK: case involved theft by an employee of a
credit card. A cause analogous to serious misconduct is
a voluntary and/or willful act or omission attesting to an
employee's moral depravity.
YRASEGUI case: just cause. Wilful disobedience
What about conflict of interest , what is it analogous to?
- Willful breach of trust. Ex: your employer is engaged in
softdrinks business and you establish a company of the
same business in competition with your employer.
What are the just causes for academic personnel in the tertiary
level? (Sec. 121. MRPSHE)
1. Grave misconduct
2. Gross inefficiency and incompetence in performance of
duties
3. Tampering or falsification or, or negligence in keeping
school or student records
4. Conviction of a crime, or an attempt on or a criminal act
against the life...
5. Being notoriously undesirable
6. Disgraceful or immoral act inside or outside school
campus
7. Sale of tickets/contributions in any form or for any
project
8. Voluntary or request for deloading of teaching units
9. Phasing out, closure or cessation of the higher
education program or the institution itself
10. Other causes analogous
When we speak of substantive due process it means the existence
of just cause and authorized cause. While in procedural due
6
process it refers to the manner of dismissal whether there was
compliance with the prior notice rule or the twin notice
requirement.
What is the prior hearing and notice rule?
- Before an EE is terminated, he must be given notice
about the termination and should be given an ample
opportunity to be heard.
In describing the prior notice and hearing rule, you did not
mention a conduct of a formal investigation, is that not part of the
procedures required by the LC?
- It is not mandatory since it is only written in the IRR and
not in the LC itself. What is important is the ample
opportunity to be heard.
When does it become mandatory?
1. when the employee himself requests
2. when it is a company practice
3. w hen it involves substantial evidentiary issues and
other similar instances
Does the employee have the right to confront the witnesses
against him?
- Yes. It is necessary to controvert the grounds imputed
against him. To rebut the charges.
Can this right to confront witnesses be waived? YES.
Is the ER under obligation to provide you the right to confront
witnesses? No.
The right to counsel, is that a right of an employee under
investigation? Yes. But waivable.
Is the ER under obligation to provide EE counsel? NO.
EE is supposed to invoke these rights. If not invoked, may be
validly waived. If he invokes the right and the ER denies it then
violation of due process.
Consequences of compliance and non compliance with just cause
and prior notice requirement:
a. If there exists just cause and there is prior notice – dismissal
is VALID
Is the EE entitled to relief? NO
Is there an exception?
- YES. Separation pay as financial assistance provided
that the dismissal does not involve serious misconduct
and does not reflect the moral character of the EE.
b. There is JC but no prior notice and hearing – VALID but ER is
liable for nominal damages. Fixed at 30k (AGABON CASE)
What is the purpose of the nominal damages?
- -
c. No JC but there is prior notice – INVALID
reliefs: 1. Reinstatement
2. Backwages
3. Other monetary benefits (article 279 LC).
4. Damages
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
Reinstatement – restoration to one’s former position
Where will you be reinstated? To your previous position
what if the position is no longer available?
- sec4. Book VI. Substantially equivalent position. Or
separation pay if the establishment closed.
When is reinstatement no longer available and entitles the EE to
separation pay?
- when you have reached the compulsory age of
retirement (65 years old)
- when the position no longer exists
- when the EE opts for separation pay instead of
reinstatement
Backwages – salary, benefits, or their monetary equivalent
EQUITABLE VS SADAC: inclusive of allowances and benefits.
Excludes salary increases because: volatile and dependent on
numerous valuables; mere expectancy; no degree of assuredness
Are chairs considered benefits?
- No. It is for the efficiency of the workers.
If the EEs are dismissed, can they include the chairs as backwages?
- No. The benefits do not involve those which are used in
the performance of the job and will not increase their
standard of living.
Authorized causes:
1. Installation of labor saving devices
2. Redundancy
3. Retrenchment to prevent losses
4. Closure or cessation of operations
Labor Saving Device: AGUSTILLO VS CA
- example is in the softdrink factory
redundancy - the position is redundant not the worker
Retrenchment to prevent losses
- Requisites:
1. Losses are substantial and not merely de minimis
2. Losses must be reasonably imminent
3. Must be reasonably necessary and likely
effectively prevent losses
4. Alleged losses must be proven by sufficient and
convincing evidence
- Does it require that it be a measure of last resort? YES.
- There must be an audit by an independent external
auditor.
Examples of cost saving device:
- flexible work schedule
- compressed work week: more than 8 hours but less
than 12 hours per day
- work rotation: one group MWF, other group TTHF
flexi holiday: because some businesses are more
profitable during holidays
- gliding schedule: EE chooses when to arrive and depart
but not less than the required hours of work
Closure or cessation of operation, does it require a total closure?
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 - No. It may be partial closure or closure of a division,
portion, department.
Are there causes analogous to authorized causes?
- Yes. Termination of lease contract and non-renewal of
permit to operate – analogous to closure or cessation
Procedural due process requirement in authorized causes: what is
the 30 day notice rule?
- 30 days before termination you should send notices to
the employee and the DOLE.
Should it be a personal notice? Yes
Notice to the regional office of the DOLE? 30 days
What is the purpose of the 30 days to the EE?
- To give them time to look for another job.
For the DOLE? To determine the validity of termination. The SOLE
has the power to suspend the effects of the termination.
How will you determine the one to be terminated due to
retrenchment, etc?
- fair and reasonable criteria: seniority, efficiency,
physical fitness, age, financial hardship of certain
workers, less preferred status, size of the family
- If you do not follow the criteria then it is illegal
dismissal.
Effects:
a. authorized cause + 1 month prior notice: valid
- relief: NONE
b. authorized cause + no notice: valid but liable for
damages (50k)
authorized cause is more strict since the prerogative
comes from the ER
c. NO authorized cause + 1 month notice: INVALID
relief: same as just cause
d. NO authorized cause + NO notice: INVALID
relief: same as above
Is it the obligation of the ER to pay the separation pay if due t
authorized cause?
- Yes. Unless due to serious business losses or financial
reverses
If due to labor saving device: one month pay or at least for every
year of service
If the EE only worked for 1 week? one month pay
7-14-11
What is this provision on bona fide suspension of employment?
- the ER may suspend the business operations not
exceeding 6 months
Are losses necessary to suspend under 286? NO.
How long should be the suspension?
- not more than 6 moths
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
Is the employer required to notify the EE of the suspension one
month prior?
- No need for 1 month prior notice because there is no
termination of employment.
Do the EEs have to be paid salary during the period of suspension?
No.
What is the basis why the EEs cannot receive benefits?
- Because the ER-EE relationship is suspended. The ER is
not bound to pay while the EE is not bound to render
service.
What is the obligation of the ER to the EE in case of resumption of
operation?
a. notify the EEs of the resumption of the operation
b. reinstate the EE to prior position
Once the EEs are notified, what is the obligation of the EE?
- They should notify the ER not later than one month of
their desire to return.
- ER has the right to suspend for 6 months so the EE
should also be given time to respond if they want to
return, whether they are still interested to go back to
their job.
What will happen to the EE if he does not inform the ER of his
desire to return to work within one month?
- The EE is deemed resigned.
Is he entitled to separation pay?
- He is not entitled to separation pay because he resigned
voluntarily.
Employer is only obliged to pay separation pay if the termination
is based on (1) any of the authorized causes, (2) disease, (3) if
reinstatement is no longer viable.
Does suspension of operation under 286 includes suspension of a
department?
- suspension may be partial or total, thus a department
may be suspended.
Can you apply 286 in case of “temporary lay-off” of an individual
employee? YES.
ER owns a bus company, EE is driver. Aircon broke down. EE
cannot continue with business because aircon is broken. Fixing of
aircon has to take 1 and a half month. What will happen to the
EE?
- There will be temporary lay-off. Article 286 will apply by
analogy.
How long can an EE be placed on temporary lay-off?
- same as bona fide suspension, not more than 6 months
What will happen if the EE is not reinstated after the resumption
of the business or the suspension is more than 6 months?
- It will be tantamount to constructive dismissal.
What reliefs are the EE entitled to if he is deemed constructively
dismissed?
1. Reinstatement to his position or to a substantially
equivalent position,
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 2. Backwages inclusive of allowances and other benefits or
their monetary equivalent.
If on the 5th month of suspension I foresee that there is no more
chance for the company to resume operations. What will I do to
my EEs? What are the legal options?
- Terminate their employment.
On what ground will you terminate?
- closure or cessation of business
How will you go about the termination?
1. Notify the EEs individually and the Regional Office of
DOLE at least 30 days before the termination.
2. If the closure is NOT due to serious financial losses EEs
should be paid one month pay or ½ month pay for every
year of service, whichever is higher
If DUE to serious financial losses, no separation pay.
What is the difference of temporary shutdown in the IRR from
article 286?
- Temporary shutdown may be due to yearly inventory or
there is repair or cleaning of machineries and
equipment.
Other forms of severance would include retirement and
resignation
Retirement- result of a bilateral act of the parties, a voluntary
agreement between the ER and EE whereby the latter, after
reaching a certain age, agrees and/or consents to sever his
employment with the former.
Does the LC require retirement pay? YES.
Is there an exception?
1) government employees – covered by another law and not the
LC
2) retail, service and agricultural establishments not employing
more than 10 EEs.
What is the retirement age under the LC?
- optional – 60 with 5 years of service
- compulsory – 65 with 5 years of service
- exception: underground mining industry: optional 50;
compulsory 60, with at least 5 years of service
Who are underground mining employees?
- Persons employed to extract mining deposits
underground...
When do you apply art 287?
- “in the absence of a retirement plan or an agreement
providing for retirement benefits.
Is it valid to lower the age of retirement?
- Yes. If it is with the consent of the EE. Refer to
definition of retirement. It should be a bilateral act.
How much is the retirement pay?
- ½ month pay for every year of service
Is it the same as separation pay?
- in retirement, ½ month pay includes 15 days plus 1/12
of the 13th month pay and the cash equivalent of not
more than 5 days of service incentive leave. (22.5 days)
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
- in separation pay, just 15 days.
How do you compute?
- Determine the daily rate, multiply by 22.5, multiply by
the number of years of service.
What are the causes for termination by the EE?
- The EE can terminate his employment WITH just cause
or WITHOUT just cause.
What are the grounds for termination by the EE for just cause?
(SI, IUT, CC, OAC)
- serious insult on the honor of the EE
- inhuman and unbearable treatment accorded the EE
- commission of a crime by the ER on the person of the EE...
- other analogous causes
What is the rule for termination with cause?
- no notice is required
For termination without cause?
- there should be notice at least one month in advance,
otherwise he will be liable for damages.
What is resignation?
- When a person is put in a position where personal
reasons cannot be sacrificed in favor of the exigency of
the service and he has no other choice but to dissociate
himself from his employment.
What is an example of personal reasons?
- for health reasons
Does resignation require to be voluntary on the part of the EE?
- There are 2 types of resignation, voluntary and
involuntary
What is involuntary resignation?
- The same as forced resignation
Are you required to notify the ER in advance?
- Yes. 30 days in advance.
What is the liability of the EE if no notice is given?
- Damages for losses.
Who has jurisdiction in case the ER sues the EE for damages
because EE terminated his services without just cause and without
giving notice?
- RTC. EVIOTA VS CA case – in this case the ER was not
seeking relief under the Labor Code but rather based on
the Civil Code thus the RTC has jurisdiction.
7-21-11
When an EE terminates his employment with cause does that
mean forced resignation? YES.
The notification is for whose benefit?
- For the ER.
If the EE notifies the ER of his termination, the law requires 1
month notice, for whose benefit is the period?
- for the benefit of the ER, for him to find a replacement.
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If the EE notifies the ER of the termination and provided notice
one month in advance, can the ER accept it in advance saying that
instead of after one month it will be effective right away. Valid or
not valid?
- Valid. It is discretionary on the part of the ER to shorten
the period because the period is basically for the
benefit of the ER.
Termination based on authorized cause, for whose benefit is that?
- for the benefit of the EE
When the ER accepts the resignation can the EE withdraw it?
- No. It was the EEs decision to leave the company.
Prescription of claims
- illegal dismissal: 4 years from the time the cause of action
accrues
- ULP: 1 year
- money claims: 3 years
When can you say that the “cause of action accrues”?
- Art. 1150 NCC- “from the day they may be brought”
which means from the day a claim started as a legal
possibility
Jurisdiction of the LA
1. ULP - any violation of the EE’s right to self organization.
- Are there any other government agencies aside from
the Labor Arbiter that can try and hear ULP? a.
Voluntary arbitrator (art 262), if agreed upon by the
parties; b. SOLE (art 263g), plenary power of the
Secretary of labor
- If the LA decides and ULP case, who can review? NLRC.
- If the voluntary arbiter? CA, rule 43
- If the SOLE? CA, grave abuse, rule 65
2. Termination disputes- includes both actual and constructive
dismissal.
- What are the reliefs if illegally dismissed? reinstatement
and backwages
- Are there any other agencies that can try and hear
termination disputes?
a. Secretary of Labor, strikes and lockouts
b. voluntary arbitrator, if the parties agree, there must
be concurrence among the parties
3. If accompanied with claim of reinstatement, those cases that
workers may file involving wages, rate of pay, hours of work and
other terms and conditions of employment- non payment or
underpayment of wage, overtime pay, etc
- presupposes that the EE has been dismissed
- How much is the amount involved? regardless of the
amount
- If money claim is with the RD the proceeding is only
summary and not adversarial.
- when it is adversarial it is with the LA. Because it
requires the appreciation and admissibility of evidence,
whether the evidence is competent or material.
4. Claims for actual, moral, exemplary and other forms of damages
arising from ER-EE relationship
- When you say claims for damages, would it be possible
that it is the ER suing the EE for damages?
YES. The law does not give a distinction. Subject to the
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
condition that there is a reasonable causal connection
between the claims and the relief sought.
5. Violation of article 264 LC, including questions involving the
legality of strikes and lockouts
- What is the difference between 264(g) and the
jurisdiction of LA? In 264(g) it involves industries
indispensable to the national interest
- Ex. Petroleum industry, shipping industry, public
utilities, pharmaceuticals
- If the industry is indispensable to national interest, can
the LA try and hear the legality of the strike or lockout?
YES. Until the SOLE assumes the jurisdiction then the LA
can continue to try and hear the case.
- NOTE: if the industry is not indispensable to national
interest and SOLE assumes jurisdiction such decision
shall be void.
- Any other agency that can try and hear?
a. SOLE
b. VA, if the parties agree.
- A small resort having 40 EEs, and there is a strike, can it
be considered to be an industry indispensable to
national interest? No.
- Are banks indispensable? YES General banking law
states that banks are indispensable. You no longer have
to prove to the SOLE that banks are indispensable.
There is a list of industries indispensable to national
interest.
- to question jurisdiction apply rule 65
- If the SOLE assumes jurisdiction then the strike or
lockout may be enjoined and the EEs will be ordered to
report back to work and for the ER to readmit them as a
matter of obligation.
6. All other claims arising from ER-EE relationship...
- If the claim is more than 5k and there is claim for
reinstatement? Labor Arbiter, except if the claim is for
EE compensation, social security, medicare and
maternity benefits.
- Other than the LA, is there any other agency?
a. VA, by agreement
b. SOLE, if it is submitted to it then it can try and decide
the case.
7. Money claims of OFWs (migrant workers and overseas Filipino
act RA 8042)
8. Wage distortion in an unorganized establishment
unorganized- if there is no certified collective bargaining
agreement
- if organized – jurisdiction is with the VA
9. Enforcement of compromise agreement
What if a person is a corporate officer is dismissed? Who has
jurisdiction?
- RTC because it is an intra-corporate dispute according
to the Securities Regulation Code RA 8799
Intra-corporate dispute
- one which pertains to any of the following
relationships: (1) between the corporation, partnership
or association and the public; (2) between the
corporation, partnership, or association and the State
insofar as the former’s franchise, permit or license to
10
 operate is concerned; (3) between the corporation,
partnership or association and its stockholders,
partners, members or officers; and (4) among the
stockholders, partners or associates themselves.
7-28-11
What is the reasonable causal connection rule?
- If there is a reasonable causal connection between the
claim asserted and the employer-employee relations,
then the case is within the jurisdiction of our labor
courts. In the absence of such nexus, it is the regular
courts that have jurisdiction.
What is the Single Entry Approach?
- SENA refers to an administrative approach to provide a
speedy, impartial, inexpensive and accessible
settlement procedure of all labor issues or conflicts to
prevent them from ripening into full blown disputes.
What is the difference between arbitration and conciliation-
mediation?
- In arbitration, there is a neutral third person or persons
who will render an award based. In conciliation-
mediation, the neutral third person does not render an
award but instead facilitates communication between
the parties in order for them to arrive at certain
agreements. (wala ni gi-answer ni sir, ako ako ra ni nga
answer. HAHAHA)
What is the scope of SENA?
- Cases falling under the administrative and quasi-judicial
functions of all DOLE offices and attached agencies
including the NLRC
Is the NLRC an attached to the DOLE?
- Only for policy and program coordination
Which provision of the LC which shows the quasi-judicial functions
of the DOLE?
- The role of the Regional Director in simple money
claims (Art. 129), Visitorial power of the SOLE (Art. 128)
What are the exceptions to the coverage of SENA?
1. Notices of strikes or lockouts, or preventive
mediation cases which shall remain with the National Conciliation
and Mediation Board (NCMB); and
Why?
- because if you will not submit it toNCMB, it will make
it appear that NCMB is useless. NCMB already has
conciliation and mediation functions. Atty Marquez’s
opinion: to avoid duplication of functions.
2. Issues arising from the interpretation or
implementation of the collective bargaining agreement and those
arising from the interpretation or enforcement of company
personnel policies which should be processed through the
Grievance Machinery.
- it is already embodied in the CBA. If these issues are
not resolved they should result to voluntary arbitration. It is
inherent in the VA the power of conciliation and mediation.
What are the issues covered?
- All issues arising from the labor and employment
What would it include?
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
a. Termination or suspension of employment issues;
- for termination, if i will pre-terminate, where
will you refer? To the NLRC
- for suspension of employment? To the NLRC.
Although it is not included in the
enumeration in Art 217.
b. Claims for any sum of money, regardless of amount;
- if my claim is 6k, where will you refer? To the
NLRC, the Labor Arbiter
c. Intra-union and inter-union issues, after exhaustion of
administrative remedies;
- refer the case to LA
d. Unfair Labor Practice;
- to LA
e. Closures, retrenchments, redundancies, temporary lay-
offs;
- to LA, because termination based on
authorized causes
f. OFW cases;
- to LA
g. Any other claims arising from ER-EE relationship
Under the Rules of Procedure:
h. Occupational safety and health standards issues except
those involving imminent danger situation;
i. Issues arising from other labor and related issuance
(OLRI)
How will these issues be brought within the SENA?
- Section 4. Who may file – Any aggrieved worker, union,
group of workers or the employer may file a request for
assistance.
- All you need to do is go to any SENA office and file the
request for assistance form.
- OR you could file a complaint
- If your case does not fall within the original and
exclusive jurisdiction of the LA then you can file a
request for assistance in the SENA
What is the role of the Desk Officer?
- Upon receipt of the complaint or request for
conciliation-mediation services, the designated Desk
Officer shall initiate a pre-conference assessment,
evaluation, counselling and conciliation-mediation
services.
What is this rule on privileged communication?
- Information and statements given in confidence at the
conciliation-mediation proceedings shall be treated as
privileged communication and shall not be used as
evidence in any arbitration proceedings, except the
stipulation of facts voluntarily entered into by the
parties
What is the reason for this?
- The parties may not be able to settle because the
parties would have the tendency to withhold
information out of fear that such information will later
be used as evidence against the party.
What are those which are outside the privileged communication
rule?
- Stipulation of facts which form part of the settlement in
accordance with Rule V hereof;
11
 - Facts which are of common knowledge; or
- Waiver of confidentiality
What are the contents of a referral?
- Names and addresses of the parties
- Summary of unresolved issues
- Causes of action
- Relief sought
- If for VA, specify issues to be arbitrated
Where do you file your claim or request for assistance?
- Any SENA desk in the region where the employer
principally operates
- In case of a union or federation representing a local
chapter, the request shall be made at the
regional/provincial/district office where the union or
local chapter is registered.
May lawyers appear?
- Lawyers may be allowed to join the conference only to
render advice.
- Under the rules, lawyers may appear so long as they
have SPA. Why is this so? Atty Marquez: Because the
SOLE may have thought that the parties will be
individuals. You can’t expect the CEO of San Miguel
Corp to appear. They can be represented by lawyers
provided they have Special Power or Attorney.
- If the parties are individuals, the SENA requires that the
parties be present themselves. Unless you have reasons
for non-appearance and you can appoint a lawyer to
appear in your behalf.
NLRC Rules of Procedure:
Complaint- a pleading alleging a cause of action
When can we say that an employee is illegally dismissed?
- When the EE is dismissed without just or authorized
cause and was not given the twin notice
If he has a cause of action and entitled to relief, does he have the
right to initiate a complaint? YES.
Complainant, should it be a natural or juridical person?
- it may be natural or juridical person
- For termination dispute? Both
- For ULP? Both
- For money claim? Natural
- For moral and exemplary damages? Both
- For the respondent? Both
Who assigns the case number?
- The arbitration branch
Is the age material in the filing of complaint?
- For example, for employees below 18 certain conditions
of employment must be complied with like the
workplace
Hours of work?
- For ages 16-17, they cannot work from 10pm to 6am
Status?
- For married women there are certain privileges
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
Address of the complainant?
- To know where to send notices and other legal
processes
Name of respondent company?
- To know the person who has violated the right
Address of respondent?
- To know where to send notices...
- to determine the venue
 may be filed in the Regiional Arbitration
Branch having jurisdiction over the workplace
of the complainant or petitioner
 workplace – place or locality where the EE is
regularly assigned at the time the cause of
action arose. It shall include the place where
the employee us supposed to report back
after temporary detail, assignment, or travel.
In case of field employees, as well as
ambulant or itinerant workers, their
workplace is where they are regularly
assigned, or where they are supposed to
regularly receive their salaries and wages or
work instructions from...
 exception is the OFW
Owner-Manager/President?
- You do not sue the trade name. Example, you do not
sue McDonald’s, you sue Golden Arches Development
Corp.
- What is the significance of writing their name? Because
they will be the one to whom summons will be served.
- Is it important to serve summons? To acquire the
jurisdiction of the person
Nature of business
- Why is it relevant? There are different laws depending
on the nature of business
- If you classify your business as retail or service, it is
material
Number of employees
- There are certain labor standards that may not apply
depending on the number of workers
Date employed
- For the computation of retirement pay, separation pay
Date dismissed
- For prescription
- If you were constructively dismissed what date will you
put? The day that you believe you were forced to
resign
Nature of work/position
- Whether you are a managerial, supervisory, or rank and
file. It will determine if you are entitled to labor
standards
Work Schedule
- To determine the number of days you work in a
company
- There are certain labor standards available depending
on work schedule
12

Salary Rate
- Latest salary rate should be placed
Frequency of payment
- To know if there are some violation
Place of work
- To determine venue
“Have you filed a similar case elsewhere?”
- For forum shopping and litis pendencia
“if you are a union member...”
- If member of union, it will indicate whether the
jurisdiction is with the Labor Arbiter.
- For purposes of jurisdiction
Causes of action
- What will happen if the respondent does not attend the 2
8-4-11
Pro forma complaint, does this require to be sworn under oath?
- Yes, before the labor arbiter
Is the certification of forum shopping needed?
- Yes. In order to know if there the case was filed also in
other courts
Can parties be represented by counsel?
- yes
Ibp number? Yes
What does “relief sought” mean?
After the complaint is filed with the arbitration branch, it will be
raffled to a specific labor arbiter, the labor arbiter is required to
issue the summons including the notice of conciliation and
mediation, the summons is for what purpose?
- In order to acquire jurisdiction of the respondent
Who can qualify as parties?
- Natural and juridical persons
If the respondent is an individual, how are summons served?
- Personally served by the bailiff, if he cannot be served
personally, it could be by registered mail or by private
carrier
- If he cannot be served in person it can be by substituted
service
- If respondent is a corporation, it should be served to
the president, corporate secretary, treasurer, in-house
counsel, general manager, managing partner
- Private courier – new addition to the rules
- If you don’t acquire jurisdiction over the person of the
respondent then the decision will not be binding upon
the person. Decision is not valid and enforceable
against the person who was not properly served
summons.
What is the mandatory conciliation and mediation?
- The mandatory conciliation and mediation conference
shall be called for the purpose of (1) amicably settling
the case upon a fair compromise; (2) determining the
real parties in interest; (3) determining the necessity of
amending the complaint and including all causes of
action; (4) defining and simplifying the issues in the
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
case; (5) entering into admissions or stipulations of
facts; and (6) threshing out all other preliminary
matters.
Does it require the LA’s presence?
- Yes. The rule requires him to PERSONALLY preside over
the proceedings.
What is the effect on non-appearance of parties?
- If it were the complainant who failed to attend the 2
settings the complaint will be ordered dismissed
without prejudice.
If the complaint is dismissed without prejudice, what is the
remedy of the complainant?
- File a motion to reopen/revive/reinstate the complaint
- And
settings?
- He is deemed to have waived his right to file position
paper
Is the period to file position paper extendible?
- Yes. Unlike in the old rules.
Assuming that both parties were present, if the possibility of
settling the case, what are the parties expected to come up with?
- They may come up with a compromise agreement
Is compromise allowed by law on proceedings before the Labor
Code? Yes
What is a compromise?
- It is when two parties give mutual concessions to avoid
litigation or to put an end to one already started
Does compromise require approval by LA? If it is approved what is
the effect?
- Yes. It is final and binding upon the parties and it is
called a judgment by compromise. Such judgement is
final and executor.
If one of the parties breaches his obligation in the compromise,
what is the remedy?
- File a motion to enforce the judgment and apply for an
issuance of a writ of execution
- If you do not follow the order then you will be liable for
contempt
If the case is already on appeal, can it still be subject to comprise?
- Yes. Compromise could apply to any stage of the
proceeding.
If the case is brought on appeal to the Commission and there is
compromise, who will approve the compromise?
- It should be approved by the COMMISSION, unlike in
the old rule where it is the commissioner.
Is a motion to postpone the mediation conference allowed?
- No motion for postponement will be entertained except
on meritorious grounds and filed 3 days before the
scheduled hearing
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If you are considered to have waived you right to file position
paper, what is your remedy?
- File a motion to set aside order of waiver (new
provision)
- It must be under oath, and the failure to appear is
based on justifiable and meritorious grounds
- If you are unable set aside the order of waiver the LA
will render judgment based on the evidence
A motion to declare respondent in default is among the prohibited
motions.
Is a petition for certiorari, prohibition and mandamus considered
a prohibited pleading?
- Not anymore
If there is no possibility of a compromise, does it authorize the LA
to terminate the conference?
- No. LA must proceed with the other purposes of the
conference unlike in the old rules.
Determination of real parties in interest
- Real party in interest is one who stands to be benefited
or injured by the avails of the suit
- What is the effect if the complaint is brought against a
person who is not a real party in interest? There will be
lack of cause action.
- Can a motion to dismiss based on that ground be filed
in a case in the NLRC? NO
- If the complaint Is filed in the wrong venue can it be
dismissed? Yes
What do we mean by workplace?
- For purposes of venue, the workplace shall be
understood as the place or locality where the employee
is regularly assigned at the time the cause of action
arose. It shall include the place where the employee is
supposed to report back after a temporary detail,
assignment, or travel. In case of field employees, as well
as ambulant or itinerant workers, their workplace is
where they are regularly assigned, or where they are
supposed to regularly receive their salaries and wages
or work instructions from, and report the results of
their assignment to, their employers.
If the complainant is an OFW, where shall the case be filed?
- the Regional Arbitration Branch having jurisdiction over
the place where the complainant resides or where the
principal office of any of the respondents is situated, at
the option of the complainant
When can you file a motion to dismiss?
- Before the date set for mandatory conciliation
What will be the effect if beyond the period allowed?
- MOTION TO DISMISS SHALL NO LONGER BE
ALLOWED/ENTERTAINED
Are you also barred from raising these grounds in the position
paper?
- No. what is barred is filing of motion to dismiss and if
the ground is waivable.
Can you appeal the motion denying your motion to dismiss?
- No. it is not appealable.
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
What other orders are not subject to appeal?
- Interlocutory orders
- Interlocutory orders do not dispose of the case unlike
final orders
An order denying your motion for inhibition?
- Not appealable
What other appeals are prohibited?
- Appeal from any interlocutory order of the Labor
Arbiter, such as but not limited to, an order:
(1) denying a motion to dismiss;
(2) denying a motion to inhibit;
(3) denying a motion for issuance of writ of
execution; or
(4) denying a motion to quash writ of execution.
- Appeal from the issuance of a certificate of finality of
decision by the Labor Arbiter
- Appeal from orders issued by the Labor Arbiter in the
course of execution proceedings
Amendment of complaint
Can you amend your complaint?
- Before filing of position paper it is a matter of right. If
after the submission of position paper you need leave
of the LA
Can you appeal an order denying motion to amend? No
Extraordinary remedies
- Example, if there is an order denying your motion to set
aside the order of waiver you can now avail of
extraordinary remedies
- You can file a verified petition in the NLRC restraining
the LA
- Not later than 10 days from the date of receipt of the
order
Defining or simplifying the issues
- If the claim is for illegal dismissal then the issue is WON
there is illegal dismissal
- During the conciliation and mediation there is no reply
just the complaint
Admission and stipulation of facts
- You no longer need to prove things already admitted
- You should be prepared during the conciliation and
mediation to give admissions and denials
- If you make an admission you are bound by that
- This conciliation and mediation does it have the same
essence and substance as the SENA? It is the same. The
essence is to explore the possibility of compromise.
- What is the difference? In SENA the desk officer who
may or may not be a lawyer, in the conciliation and
mediation it is the LA who is a lawyer. The desk officer
is appointed by the RD of DOLE while the LA is
appointed by the President
Threshing out other preliminary matters
- If you want to discuss other preliminary matters
If conciliation and mediation is not possible then the LA will
terminate the mediation conference and order the parties to
submit verified position papers
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Why does it have to be simultaneous?
- To prevent unfairness and surprises. You may be able to
see the strength or weakness of the other party
Extension of the period to file position paper may already be
extended because the new rule is silent.
What is the content of the position paper?
- Only those claims or causes of actions stated in the
complaint as well as affidavits
Does the rules require the position paper to be under oath? Yes
How do you verify?
- By an affidavit that the affiant has read the pleading
and that the allegations therein are true and correct of
his personal knowledge or based on authentic records
Does the position paper require certificate of non forum
shopping?
- No because it is not an initiatory pleading
After submission of position papers what will happen?
- The parties may file their reply
What are the contents of the reply?
- The reply shall not allege and/or prove facts and any
cause or causes of action not referred to or included in
the original or amended complaint or petition or raised
in the position paper
After filing of reply what will happen?
- The LA at his discretion may conduct a clarificatory
hearing
Can the LA continue without the clarificatory hearing? YES.
Will it be deemed submitted for decision after filing of the last
pleading?
- Yes. Clarificatory hearing is discretionary
Are the parties required to appear in the clarificatory hearing?
- Yes. If one is absent the conference will proceed EX
PARTE. If both are absent the LA will consider it
submitted for decision. (significant amendment)
An order for the case to be submitted for decision is no longer
required. Once the clarificatory hearing is terminated the case is
automatically submitted for decision.
What is the remedy from the decision of the LA?
- An appeal from the decision of the LA to the NLRC
Do you file it directly to the NLRC?
- You file it with the court of origin, the LA, because that’s
where the records are
What are the grounds for appeal?
a) If there is prima facie evidence of abuse of discretion
on the part of the Labor Arbiter or Regional Director;
b) If the decision, resolution or order was secured
through fraud or coercion, including graft and
corruption;
c) If made purely on questions of law; and/or
NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT
d) If serious errors in the findings of facts are raised
which, if not corrected, would cause grave or
irreparable damage or injury to the appellant.
What are the requisites for the perfection of the appeal?
1) Filed within the reglementary period provided in
Section 1 of this Rule;
2) Verified by the appellant himself/herself in
accordance with Section 4, Rule 7 of the Rules of
Court, as amended;
3) In the form of a memorandum of appeal which
shall state the grounds relied upon and the
arguments in support thereof, the relief prayed
for, and with a statement of the date the appellant
received the appealed decision, award or order;
4) In three (3) legibly typewritten or printed copies;
and
5) Accompanied by:
i) Proof of payment of the required appeal fee
and legal research fee;
ii) Posting of a cash or surety bond as provided
in Section 6 of this Rule; and
iii) Proof of service upon the other parties.
What is the amount of the bond?
- Equivalent to the monetary award exclusive of
attorney’s fees and damages
Is it required to be accompanied with a certification against forum
shopping?
- NO. This is an amendment of the old rule.
If it were a verified position on extraordinary remedy then it
would require a certification on non forum shopping.
If the judgment of the labor arbiter orders reinstatement of the EE
and award backwages, the ER appeals to the NLRC, is the order of
reinstatement immediately executory?
- Yes. The ER is required to either physically reinstate the
EE or to reinstate him in the payroll.
- The option is on the ER. Why? To avoid the situation
where there will be tension because of the strained
relations between the EE and ER.
How soon is the ER required to comply?
- As soon as he receives the decision
The ER must file a manifestation of compliance within 10 days
where the ER states whether he chooses physical reinstatement
or reinstatement in the payroll.
Does it require a writ of execution?
- No. but if the ER does not choose to reinstate the EE
then a writ of execution may be issued by the LA and
the ER will be cited for indirect contempt.
If the decision of reinstatement is overturned by the Commission,
can the ER recover the wages? No
.
Would it not be unjust enrichment?
- Labor laws outweigh the civil principle of unjust
enrichment. (GARCIA VS PAL)
What is the remedy from the decision of the commission?
- File a motion for reconsideration on the ground that
there was palpable and patent error
Does the Motion for reconsideration be under oath?
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 - No. this is an amendment to the old rule.

How many days to file MR?

- 10 calendar days.

Is the filing of an MR mandatory?

- Yes. Under the principle of exhaustion of administrative
remedies since the NLRC is a quasi-judicial agency.

After denial of MR, what will happen?

- If there is grave abuse of discretion, under special civil
action rule 65
- Supreme court, rule 45

Execution:
How is a monetary judgment executed by the sheriff?
a) Sherriff will demand immediate payment from the
losing party
b) If the losing party fails or refuses to pay, the Sheriff will
proceed against the cash or surety bond.
c) If the bonding company refuses to pay or the bank
holding the cash deposit of the losing party refuses to
release the garnished amount, the president or the
responsible officers or authorized representatives of
the bonding company or the bank shall be cited in
contempt or punished under the RPC
- law enforcement agencies may be asked for
assistance to ensure compliance of the
d) if the cash deposit or surety bond is insufficient or in
case the surety bond cannot be proceeded against for
any reason, the Sheriff shall, within five (5) days from
demand, execute the monetary judgment by garnishing
bank deposits, credits, receivables, and other personal
property not capable of manual delivery
e) if the same is not enough, proceed to levy the personal
property of the losing party
f) if still insufficient, against the real property not exempt
from execution, sufficient to cover the judgment award,
which may be disposed of for value at a public auction
to the highest bidder.

Miscellaneous topic: third party claim- when property sought to

be levied is in the possession of a third person.

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Exam: THURSDAY August 11, 2011 7:30pm-9:00pm

NINJO|EH 404|LABOR RELATIONS MIDTERM TRANSCRIPT 16