Considering that B is not a managerial employee, may he be dismissed from employment

based on loss of trust and confidence?

YES. Willfull breach of trust; if done intentionally, knowingly and purposely without justifiable
excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.

It must be Willful, and Related to the performance of the EEs functions

Assuming that there is indeed just cause to terminate the services of B, may he nevertheless
be awarded separation pay?

YES. GR: SP from work of an EE for a just cause DOES NOT entitle him to SP
EXCEPT: when the EE was validly dismissed for a cause, other that serious misconduct
or offenses reflecting on his moral character as a measure of social justice

Assuming that B’s dismissal is held to be illegal, may his prayer for “reinstatement to his
former position without loss of seniority rights” be denied?

YES. If position is no longer possible or already filled Up. - Dismissed EE should be given a
substantially equivalent position Otherwise, the EE is entitled to separation pay equivalent to at
least 0ne month salary for every year of service plus backwages, if warranted.

Reinstatement - Relief separate and distinct from backwages; Restores the lost position;
Backwages – restores the lost income
- Restoration to a state from which one has been removed or separated. It is the return to the
position from which he was removed.

Reinstatement “Without Loss of Seniority Rights” - Means upon reinstatement, the EE is to

be treated in matters involving rank, position, and continuity of employment as though he has not
been absent from work.

Alternative relief If Reinstatement is No Longer Possible/already filled up - Dismissed EE

should be given a substantially equivalent position

§ Otherwise, the EE is entitled to separation pay equivalent to at least 0ne month salary for every
year of service plus backwages, if warranted.
-(if ER has closed down its business, undertook retrenchment measures or drastic reduction of
personnel or considerable lapse of time has lapsed since the EEs dismissal that reinstatement is
impractical)

§ However, if the illegally dismissed EE has retired that relief of SP is not available, he will only
be entitled to backwages up to the time when he reached the retirement age plus, retirement pay.
 Before the expiration of the freedom period, may DEF Union again request GHI
Corporation for voluntary recognition?

Assuming GHI Corporation agrees to the request, will such voluntary recognition give rise
to a complaint for unfair labor practice? Why or why not?

Enumerate five (5) salient features of RA 9481 which strengthens the workers’ rights to
self-organization.

Considering that there are no invalid votes cast, may Union 1 be declared as the winner?
Explain.
Answer: NO WINNER. 260 + 250 + 100 + 200 = 810; First Majority (1000/2 + 1) 50; 810
Employees voted hience the election is valid; Second Majority (810/2 + 1) 406 – No winner in
the Cert of Election
Is run-off election proper? Explain.
YES. If none of the contenders in a certification election (with atleast 3 choices) obtains a
majority of the valid votes cast, the labor unions receiving 2 highest number of votes shall be
subjected to an election to determine which of them should be the CB representative.
Conditions:
 (a) Certification Election should have at least 3 choices
 (b) None of the choices
obtained a majority of the valid votes cast
 (c) Total # of votes for ALL contending unions is at
least 50 % of the numbers votes cast
 (d) There are no challenged ballots, which can
materially alter the results


Is the action of the Secretary justified and legal? State your reasons.
Yes. National Interest Disputes When, in his opinion, there exists a labor dispute causing or
likely to cause a strike or lockout in an industry indispensable to the national interest, the
Secretary may assume jurisdiction over the dispute and decide it or certify the same to the NLRC
for compulsory arbitration. Recommendation of the Undersecretary is not a condition.
The Secretary may assume jurisdiction over a labor dispute or certify it for compulsory
arbitration even if there is no actual strike or lockout. The existence of a labor dispute likely to
cause a strike or lockout is enough basis for the Secretary to assume jurisdiction or to issue a
certification. Such powers are not undue delegation of legislative power. It is not an interference
with the workers’ right to strike. It simply regulates such right.

Assuming it is justified and legal, what, if any, are the effects of the Secretary’s assumption
of jurisdiction over the dispute?

Effects of the Assumption of Jurisdiction of the Secretary

1. Automatically enjoins the intended or impending strike or lockout as specified in the assumption
or certification order
2. If one has already taken place at the time of assumptio or certification, all striking or locked-out
employees shall within 24 hours return to work from receipt of an assumption or certification
3. The emloyer shall immediately resume operations and re-admit all workers under the same terms
and conditions prevailing before strike or lockout.

How do we determine whether a strike is legal or not?

Strike Strike is any temporary stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute.

The requisites of a strike are as follows: a.) temporary; and b.) the result of a labor dispute.1

Legality of a Strike
a.) If the purpose is lawful and the means employed are lawful, the strike is LEGAL.
b.) If declared for both a legal and illegal purpose, the strike is ILLEGALin its entirety.
c.) If the purpose is lawful but the means employed are unlawful, the strike is ILLEGAL.

Legal Grounds for Declaring a Strike

a.) Collective bargaining deadlock b.) Unfair labor practice
Any strike founded on other grounds is illegal.

Legal Requirements of a Strike a.) Notice of strike b.) Strike vote

c.) Strike vote report
Failure to comply with any of these requirements will render the strike illegal.

Notice of Strike - Filed with the Regional Branch of the National Conciliation and Mediation
Board and served to the company, at least:
a.) 30 days before the intended date of strike – if the ground for strike is based on collective
bargaining deadlock
b.) 15 days before the intended date of strike – if the ground for strike is based on ULP.

Cooling-off Period - is the span of time allotted by law for the parties to settle their disputes in a
peaceful manner before declaring a strike.
a.) 30 days from filing of the notice of strike – if the ground for the strike is CBD
b.) 15 days from filing of the notice of strike – if the ground for strike is ULP

Strike Vote - The decision to declare a strike must be approved by the majority of the total union
membership in the bargaining unit concerned, through secret ballot in a meeting or referendum
called for the purpose.

Strike Vote Report- The report is filed with the regional branch of the NCMB at least 7 days
before the intended strike.

7-Day Strike Ban - This is the 7-day period reckoned from the submission of the strike vote
report. The union cannot strike during this period. This is a reasonable exercise of police power.
In computing the period, the first day shall be excluded and the last day included.
Declaration of Strike - The union may go on strike if after the lapse of the cooling-off period
and the 7-day strike ban, if the dispute remains unsettled. The NCMB shall continue mediating
and conciliating.

A strike is not rendered illegal by the mere fact that the demands of the union are unreasonable.
The legality of a strike does not depend upon the reasonableness of the demands. If the demands
cannot be granted, they should be rejected. Also, the mere fact that the demands of the union
were rejected does not make the strike illegal.

Sanction for Illegal Strike

The Current Doctrine
An Illegal strike does not automatically warrant the wholesale dismissal of strikers. Only the
following strikers can be penalized with loss of employment status:
a.) Union officers who knowingly participate in an illegal strike;
b.) Union officers or members who knowingly participate in the commission of illegal acts
during a strike.

Lockout - iis the temporary refusal of an employer to furnish work as a result of an industrial or
labor dispute.
Requisites:
The refusal to furnish work must be: a.) Temporary; and b.) The result of a labor dispute.

Requisites of a Valid Lockout

a.) It should be declared only on grounds specified by law; and b.) It should comply with the
requirements prescribed by law.

Legal Grounds for Declaring a Lockout

a.) Collective bargaining deadlock (CBD) b.) Unfair labor practice (ULP)

Legal Requirements of a Lockout

a.) Notice of lockout; b.) Lockout vote;
c.) Lockout vote report

Notice of Lockout Filed with the NCMB and served to the union, at least:
a.) 30 days before intended date – if the ground is CBD
b.) 15 days before the intended date – if the ground is ULP

Cooling-off Period
a.) 30 days from the filing of notice of lockout – for CBD b.) 15 days from filing the notice of
lockout – for ULP

Lockout Vote The decision to declare a lockout must be approved by the majority of the BoD, in
case of a corporation, or the partners in the case of a partnership, through secret ballot in a
meeting called for the purpose.
The employer shall furnish the regional branch of the NCMB the notice of meeting at least 24
hours before the holding of such meeting. The NCMB may also supervise the secret balloting at
its own initiative or upon instance of any affected party.

Lockout Vote Report - The employer must report the results of the voting at least 7 days before
the intended lockout.

7-day Lockout Ban - The 7-day period is reckoned from the submission of the lockout vote
report. Observance is mandatory.

Declaration of Lockout - The employer may declare a lockout if after the cooling-off period
and
the 7-day lockout ban, the dispute remains unsettled. The NCMB shall continue mediating and
conciliating.

Illegal Lockouts
a.) Lockouts on grounds other than those prescribed by law
b.) Lockouts without complying with any of the legal requirements
c.) Lockout before the lapse of the cooling-off period or the 7-day lockout ban
d.) Lockout declared after the Secretary of Labor and Employment has assumed jurisdiction over
the dispute or certified the same for compulsory arbitration
e.) Lockout declared without first having bargained collectively

Sanction for Illegal Lockout - An employer guilty of illegal lockout may be held liable for
backwages.

Is theCBA provision valid?

Should the company comply with the union’s demand of terminating the services of the
members of the religious sect? Explain.

Concept of Probationary Employment

- A situation where the employee upon his engagement is made to undergo a trial period during
which the employer determines his fitness to qualify for regular employment, based on
reasonable standards made known to him at the time of engagement.
- Employment contract or appointment paper should expressly and specifically state that the
engagement of the employee is on probationary basis
- Purpose of probationary employment: To allow the employer to test the working habits and
other personal traits of the employee with respect to his fitness for regularization in its company.
- Prerogative of an employer to place new employees on probation.

Duration of Probationary Employment of Ordinary Employees

- Generally: Probationary period of employment of ordinary employees is limited to six (6)
months. 

 - Exceptions:
(a) When the parties to an employment contract or collective 
 bargaining agreement agree on a
longer period; 

(b) When a longer probationary period is established by company 
 policy; or 

(c) When a longer period is required by the nature of work. 


Extension of Probationary Employment 


- Can be extended to give the employee a chance to improve. 

- Such extension should be done on or before the expiration of the prescribed period otherwise
the employee will automatically become a 
 regular employee by operation of law. 


Limitations on the Right to Terminate a Probationary Employment

- The power of an employer to terminate a probationary employment is subject to the following
limitations: (a) It must be exercised in accordance with the specific requirements 
 of the
contract. 
 (b) The dissatisfaction of the employer must be real and in good faith, 
 not feigned
so as to circumvent the contract or the law; and 
 (c) There must be no unlawful discrimination
in the dismissal. 


Art. 282. Termination by Employer. - An employer may terminate an employment for any of
the following 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 representatives; and

(e) Other causes analogous to the foregoing.

Serious Misconduct “Misconduct”: improper or wrong conduct.The transgression of some

established and definite rule of action, a forbidden act, a dereliction of duty, wilful in character,
and implies a wrongful intent and not a mere error of judgment. To constitute a just cause for
dismissal, the misconduct must be:
(a) Serious; and 
 (b) Related to or in connection with the employee’s work. 

. If not serious, it will merely warrant a penalty lesser than dismissal. 


Willful Disobedience - Wilful or intentional disobedience thereof, as a general rule, justifies the
peremptory dismissal of the employee. 

- In order that disobedience to employer’s order can constitute a valid cause for dismissal, the
following requisites must be complied with:
(a) The disobedience must be wilful or intentional; 

(b) The order must be reasonable and lawful; 

(c) The order must be known to the employee; and 

(d) The order must pertain to or must be in connection with 
 the duties which the employee
had been engaged to discharge. 


Gross and Habitual Neglect of Duty- “Gross”: glaringly noticeable usually because of
inexcusable badness or objectionableness.
“Neglect”: indicates that a person has not done that which it was his duty to do – it does not
indicate the reason for this failure.
- “Negligence”: a subjective state of the mind
 o Indicates a particular reason why the man has
failed to do his duty, namely because he has not kept the performance of the duty in his mind as
he ought to have done.
FRAUD Is the knowing misrepresentation of the truth

Concealment of a material fact to induce another to act to his or her detriment.
 To constitute a
just cause for dismissal, the fraud must be:
1) Committed against the employer; and 
 2) In connection with the employee’s work. 

Fraud committed against third person without connection whatsoever with work will not
justify the dismissal of an employee.

WILLFUL BREACH OF TRUST Breach is willful if it is done intentionally, knowingly and

purposely, without justifiable excuse. 

To constitute a valid cause for dismissal, the breach of trust must be: Willful; and 
 Related to
the performance of the employee’s functions. 

The basic premise for the dismissal on the ground of willful breach of trust is that employee
concerned holds a position of trust and 
 confidence. 

An employee holds a position of trust and confidence if he is entrusted 
 with responsibility
involving:
Delicate matters 
 Where the employees has access to the employer’s property in 
 the form of
articles or merchandise for sale. 


COMMISSION OF A CRIME Commission of a crime is a ground for dismissal if it is

committed by an employee against the person of the:
 a. Employer;
 b. Immediate member of
his family, or c. Authorized representative of the employer
 Prior conviction is not required-
 mere commission of the crime is enough justify the dismissal.
ANALOGOUS CAUSES The offense must have an element similar to those found in the
specific just causes enumerated under Art 282 of LC.
Analogous causes contemplate an act that is due to voluntary or willful act of employee.
Illness is not analogous because it is neither voluntary nor willful.
 Conviction of a crime
involving moral turpitude is not analogous to commission of a crime by the employee or to fraud
and willful breach of trust.
a) Gross inefficiency
 Is closely related to gross neglect
b) Inflicting or attempting to inflict bodily injury on the job site on company time

c) Unreasonable behavior, quarrelsome, bossy and difficult to deal with

OTHER VALID CAUSES FOR DISMISSAL Violation of company rules and regulations;
Breach of union security arrangements; Participation in an illegal strike; 
 Commission of illegal
acts during a strike; Defiance of return-to-work order in a strike; and 
 Sexual harassment 

Blue sky Bargaining Blue-Sky Bargaining is defined as "unrealistic and unreasonable demands
in negotiations by either or both labor and management, where neither concedes anything and
demands the impossible." It actually is not collective bargaining at all.
-making exaggerated proposals

Surface bargaining is defined as "going through the motions of negotiating" without any legal
intent to reach an agreement; never presents an easy issue. It ivolves a question of the intent of
the party

1. Considering that B is not a managerial employee, may he be dismissed from employment

based on loss of trust and confidence? Explain (5pts)

Suggested Answer: YES

Ungos Notes:
Willfull breach of trust
o – if done intentionally, knowingly and purposely without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly, heedlessly or inadvertently
§ Valid ground:
· Willful, and
· Related to the performance of the EEs functions
§ Basic Premise: the EE concerned holds a position of trust and confidence and it is breach of
this trust that results in the ER’s loss of confidence in the EE
o Guidelines for the Application of the doctrine of Loss of confidence:
§ Loss of confidence should not be simulated
§ Should not be used as a subterfure for causes which are improper, illegal or unjustified
§ May not be arbitratrily asserted in the face of overwhelming evidence to the contrary and
§ Must be genuine, not a mere afterthought to justify the earlier action taken in bad faith
Positions ofT/C Bankteller Cashier Salesma Miner Teachers GM VP for Marketing Dist.
Sales Sup Credit and Collection Sup Warehouseman

2. Before B’s dismissal may be validly implemented, discussed the statutory

obligations of C Company towards B.

3. Assuming that there is indeed just cause to terminate the services of B, may he
nevertheless be awarded separation pay? Explain.

Suggested Answer: Yes

Separation Pay ( SP)
o Distinct from backwages, hence, can be awarded simultaneously
o SP is intended to provide the EE money during the period in which he will be looking for
another employment
o Sort of an aid to an EE upon his separation from service so that he may something on which
to fall back when he losses his means of livelihood
o Amount designed to provide him with the wherewithal during the period that he is looking
for employment
· GR: SP from work of an EE for a just cause DOES NOT entitle him to SP
· EXCEPT: when the EE was validly dismissed for a cause, other that serious misconduct
or offenses reflecting on his moral character as a measure of social justice

4. Assuming that B’s dismissal is held to be illegal, may his prayer for “reinstatement to
his former position without loss of seniority rights” be denied? Explain.
Suggested Answer: Yes

Alternative relief If Reinstatement is No Longer Possible/already filled up

- Dismissed EE should be given a substantially equivalent position
§ Otherwise, the EE is entitled to separation pay equivalent to at least 0ne month salary for every
year of service plus backwages, if warranted.
-(if ER has closed down its business, undertook retrenchment measures or drastic reduction of
personnel or considerable lapse of time has lapsed since the EEs dismissal that reinstatement is
impractical)
§ However, if the illegally dismissed EE has retired that relief of SP is not available, he will only
be entitled to backwages up to the time when he reached the retirement age plus, retirement pay.

B. DEF Union was voluntarily recognized as the exclusive bargaining agent by GHI
Corporation, an unorganized establishment. Thereafter, a collective bargaining agreement
was executed and registered.
1. Before the expiration of the freedom period, may DEF Union again request GHI
Corporation for voluntary recognition? Explain. (5 points)
2. Assuming GHI Corporation agrees to the request, will such voluntary recognition give rise
to a complaint for unfair labor practice? Why or why not? (5 points)
3. Enumerate five (5) salient features of RA 9481 which strengthens the workers’ rights to self-
organization. (5 points)

1) federation, national union or industry or trade union center or an independent union

aquire legal personality
Upon issuance of the certificate of registration. It shall likewise be entitled to the rights and
privileges granted by law to legitimate labor organizations.

2) federation or national union create a local chapter

3) voluntary cancellation of union registration
4) failure to comply with the reportorial requirements is not a ground for cancellation of
union registration
norganized establishments, may a federation or national 5) union file a petition for
certification election with the Med-Arbiter

E. A group of employees in NOPQ Factory belonging to a religious sect, in conformity with the
teachings and dictates of their religion, refused to join the labor union in the factory. The labor
union was able to negotiate a substantial wage increase in its collective bargaining agreement
with management. A provision therein stated that the wage increase clause in the new agreement.
The members of the sect pretested and demanded that the wage increase be extended to them.
The officers of the union countered by demanding their dismissal from the company pursuant to
the closed-shop provision in the just-concluded CBA.

1. Is the CBA provision valid? Explain. (5 points)

2. Should the company comply with the union’s demand of terminating the services of the
members of the religious sect? Explain. (5 points)

F. True or False. Explain your answer in not more than three (3) sentences. (3 points each)

1. When there is a bargaining deadlock, notice of strike may be filed by any legitimate labor
organization in the employer’s business.
ANS: FALSE Filed with the Regional Branch of the National Conciliation and Mediation Board

2. The voluntary arbitrator’s jurisdiction is limited to interpretation and

implementation of collective bargaining agreements and company personnel policies.
 ANS: FALSE
 Jurisdiction of Voluntary Arbitrators Original and Exclusive Jurisdiction
 unresolved grievance arising from interpretation or implementation of a collective bargaining
agreement;
 unresolved grievance arising from interpretation or enforcement of company personnel policies;
 disputes arising from wage distortion caused by the application any wage order in organized
establishments; and
 disputes arising from interpretation and implementation of the productivity incentive programs
under RA No. 6971

Voluntary Arbitrator - is a person accredited as such by the National Conciliation and

Mediation Board;or any person chosen or designated by the parties in the collective bargaining
agreement; or one chosen with or without the assistance of the National Conciliation and
Mediation Board pursuant to a selection procedure agreed upon in the Collective Bargaining
Agreement; or any official who may be authorized by the Secretary of Labor and Employment to
act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor
dispute, whose function is to resolve the disputes submitted to it by the parties.

Jurisdictional Preconditions
A voluntary arbitrator can acquire jurisdiction over the foregoing disputes only when the
following conditions have been complied with:
 the dispute has been brought to the grievance machinery for resolution;
 the grievance machinery failed to resolve the dispute; and
 the parties agree to submit the dispute for voluntary arbitration.

Jurisdiction Over Termination Disputes

General Rule:
Disputes over the validity of dismissal or severance of employment do not fall within the
jurisdiction of voluntary arbitrators BUT within the original and exclusive jurisdiction of the
Labor Arbiter.
Exception:
Disputes over the validity of dismissal or severance of employment will fall within the
jurisdiction of voluntary arbitrators only when the issue pertains to interpretation or
implementatation of a collective bargaining agreement or company personnel policy.
Case involving “interpretation or implementation of collective bargaining agreemen or company
personnel policies” vs. case involving “termination”
 Where the dispute is just in the interpretation, implementation or
 enforcement stage, it may be referred to the GRIEVANCE MACHINERY set up in the
collective bargaining agreement OR to VOLUNTARY ARBITRATION.
 Where there was already actual termination, i.e., violation of rights, it is already cognizable by
the LABOR ARBITER.

3. If there is no a “no strike, no lockout clause” in a collective bargaining agreement, no

strike can be validly declared and staged during the effectively of the CBA.
 ANS: FALSE. One of the Legal grounds for declaration of strike or lockout is Unfair labor
practice even if there is no provision in the CBA
4. In the absence of a retirement plan or agreement providing for retirement benefits of
employees in the establishment, a retiring employee is entitled to retirement pay equivalent to 15
days of his salary for every year of service.

ANS FALSE
ART. 287. Xxx entitled to retirement pay equivalent to at least one-half (1/2) month salary for
every year of service, a fraction of at least six (6) months being considered as one whole year.

 If there is NO Retirement Plan or Contract

 The retirement pay is 1⁄2 month salary for every year of service, a fraction of at least 6 months
considered as 1 year. This equals to 22.5 days for every year of service. This includes:
 a.) 15 days salary based on the employee’s latest salary rate;
 b.) Cash equivalent of not more than 5 days of service incentive leave; and
 c.) 1/12 of the 13th month pay due the employee.


NOTE:
Retirementis a withdrawal from office, public station, business, occupation, or public duty upon
reaching a certain age or after rendering a certain number of years of service.

Types of Retirement Under the Labor Code

a.) Optional
b.) Compulsory

Optional Retirement
1 If there is NO Retirement Plan or Contract
a.) For ordinary employees – at least 60 years old.
b.) For underground mining employees – at least 50 years old.

The retirement option can only be exercised by the employee. The employee must have served in
the establishment for at least 5 years.

2 If there is a Retirement Plan or Contract

The optional retirement age is that established in the retirement plan, CBA or other employment
contract.
Either the employee or the employer can exercise the option. In the exercise of the option to
retire an employee, the employer is not obliged to consult the employee.

Basis of Optional Retirement

A retirement plan, CBA or employment contract, which provides for compulsory retirement at a
certain age is not violative of the right to security of tenure, because the retirement plan forms
part of the employment contract. Optional retirement need not be based on age; length of service
may also be used as a criterion.
 5. An employee who has repeatedly incurred two absences monthly for the past 12 months
may be dismissed from employment.

G. Distinguish (do not define) between: (4 points each)

1. Contract Bar Rule and Deadlock Bar Rule

Contract-Bar Principle - The existence of a duly registered CBA will bar the holding of a
certification election.
- Purpose: To promote stability and fairness in collective bargaining agreements.
- If there is a duly registered collective bargaining agreement, no petition questioning the
majority status of the incumbent bargaining agent shall be entertained.
- No certification election shall be conducted outside of the sixty-day period immediately before
the expiry of the five-year term of the collective bargaining agreement.

The Deadlock-Bar Rule

- No representation question may be entertained if, before the filing of a petition for certification
election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party,
had been submitted to conciliation or arbitration or had become the subject of a valid notice of
strike or lockout.
Purpose: To ensure stability in the relationship of the workers and the management.

2. Just Cause and Authorized Cause for dismissal of employees

JC - the employee is dismissed for causes which are attributable to his fault or culpability; not
entitled to separation pay; he must be given ample opportunity to be heard and defend himself;
notice of DOLE not required

AC- dismissed for causes independent of his fault; entitled to separation pay; written notice must
be given at least one month before termination; notice of DOLE required

3. Surface Bargaining and Blue Sky Bargaining

Blue sky Bargaining Blue-Sky Bargaining is defined as "unrealistic and unreasonable demands
in negotiations by either or both labor and management, where neither concedes anything and
demands the impossible." It actually is not collective bargaining at all. -making exaggerated
proposals
Surface bargaining is defined as "going through the motions of negotiating" without any legal
intent to reach an agreement; never presents an easy issue. It ivolves a question of the intent of
the party

4. Regular Employment and Casual employment

Casual Employment is a job wherein the activities performed by the employee are not usually
necessary or desirable in the usual business or trade of the employe; employee who has rendered
at least one year of service, whether such service is continuous or broken, shall be considered a
 regular employee with respect to the activity in which he is employed and his employment shall
continue while such activity exists.
Regular engaged to perform activities which are usually necessary or desirable in the usual
business or trade of the employer,

5. Actual dismissal and Constructive Dismissal

VOLUNTARY RESIGNATION (ACTUAL) - Formal renouncement or relinquishment of an

office; Voluntary act of severing an employment relation at the initiative of the; Must be
unconditional and WITH INTENT to operate as such
- There must be an INTENTION TO RELINQUISH a portion of the terms of the office
accompanied by an act of relinquishment
- Can be inferred from the wordings of the letter or memorandum
- Inferred from the actuations of the employee

Involuntary Resignation (Constructive Dismissal)

Involuntary resignation is a situation where an employee is constrained to quit his job because
continued employment is rendered impossible, unreasonable or unlikely; when there is a
demotion in rank, diminution in pay or when a clear discrimination, insensibility or disdain by an
employer becomes unbearable to the employee.
Grounds Under Art 285(b)
a.) Serious insult by the employer or his representative on the honor and person of the employee;
b.) Inhuman and unbearable treatment accorded the employee by the employer or his
representative;
c.) Commission of a crime or offense by the employer or his representative against the person of
the employee or any of the immediate members of his family; and
d.) Other causes analogous to any of the foregoing.

1. Can Y Company refuse to admit all the striker? (5 points)

General Rule: Striking employees are entitled to reinstatement, whether or notthe strike was the
consequence of the employer’s ULP.
Exceptions:
a.) Union officers who knowingly participate in an illegal strike;
b.) Union officers or members who knowingly participate in the commission of illegal acts
during the strike;
c.) Strikers who defy a RTWO

2. If due to the prolonged strike, Y Company hired replacements, can it refuse to

admit the replace strikers? (5 points)

Alternative relief If Reinstatement is No Longer Possible/already filled up- Dismissed EE

should be given a substantially equivalent position
§ Otherwise, the EE is entitled to separation pay equivalent to at least 0ne month salary for every
year of service plus backwages, if warranted.
 -(if ER has closed down its business, undertook retrenchment measures or drastic reduction of
personnel or considerable lapse of time has lapsed since the EEs dismissal that reinstatement is
impractical)
§ However, if the illegally dismissed EE has retired that relief of SP is not available, he will only
be entitled to backwages up to the time when he reached the retirement age plus, retirement pay.

C. Z Union is a legitimate labor organization in Z Corporation. Desirous of becoming an exclusive

bargaining agent, Z Union wrote a letter to Z Corporation demanding that it be recognized as
such.

1. If you were the President of Z Corporation, would you accede to the demand of Z Union? (4
points)
2. Assuming you accede, will such recognition of Z Union as exclusive bargaining agent possibly
give rise to a complaint for unfair labor practice? Why or Why not? (3 points)
3. Assuming you do not accede, what if any, is your proper course of action? Why and where
would you file it? (3 points)

D. True or False. Explain your answer briefly. (3 points)

1. Deeds of release, waivers and quitclaims are always valid and binding.
2. When there is a bargaining deadlock, a notice of strike may be filed by any legitimate labor
organization in the employer’s business.

A. Discuss briefly and accurately the following:

1. Management prerogative. Rights granted to employer to regulate and control their enterprise
effectively without restraint in accordance with their own discretion and judgment.
2. Worst forms of labor
3. Persons with disability Those who are suffering from restrictions or different abilities, as a result
of a mental, physical or sensory impairments, to perform an activity in the manner or within the
range considered normal for human being.
4. Run-off election Refers to an election between the labor union receiving the 2 highest number
of votes in a certification election or consent election with 3 or more unions in contentions,
where such certification election or consent election results in none of the votes for all
contending unions receiving the majority of the valid votes cast; provided, that the total number
of votes for all contending unions, if added, is at least 50% of the number of valid votes cast.

5. Permanent total disability 1. A permanent impairment or loss of physical or mental

function as a result of injury or sickness.
6. Portability 1. Transfer of funds for the account and benefit of a worker who transfers
from one system to the other.

B. Enumerate the following:

1. The “leaves” the employees are entitled to
a. Service incentive leave
b. Maternity leave
c. Paternity leave
d. Parental leave for Solo Parents
e. Special Leaves for Women Workers under Magna Carta for Women
Leaves for victims of Violence against women and children

2. The authorized causes for dismissal of employees. Business Related Causes

1) Installation of Labor-saving device 2) Redundancy 3) Retrenchment 4) Closure or cessation
of business operations NOT due to serious business losses or financial reverses
5) Closure or cessation of business operations due to serious business losses and financial
reverses

3. 5 instances when separation pay in lieu of reinstatement may be awarded

1) When under the Doctrine of Strained Relations, when the continued relationship between the
employer and the employee is no longer viable due to the strained relations and antagonism
between them
2) When reinstatement proves impossible impracticable, not feasible or unwarrantedfor
varied reasons.
3) Where the employee decides not to be reinstatedas when he does not pray for reinstatement
in his complaint or position paper but asked for separation pay.
4) When reinstatement is rendered moot and academicdue to supervening events.
5) To prevent further delay in the execution of the decisionto the prejudice of private
respondent.

4. The jurisdictional preconditions for collective bargaining

(a) proof of majority representation on the part of the labor organization.

(b) voluntary recognition by the employer or certification of the labor organization as the
collective bargaining representative of the employees covered by the bargaining unit; and
(c) Demand to bargain under Art. 250(a) of the Labor Code.
.
1. The employer is always required to inform the probationary employee of the nature of his/her
employment.
TRUE. If there is no written contract providing for probationary employment he is deemed a
regular employment and even if there is a written agreement, he is deemed a regular employee if
there is no stipulation on probationary period.

2. Probationary employment should not exceed six months otherwise, the probationary
employee automatically becomes a regular employee.
TRUE. If there in so agreement by the parties as to the probationary period, after the expiration
of the 6 months period and the employees is allowed to work he is considered as regular
employee.

3. In labor-only contracting, the principal is considered as the agent of the labor-only

contractor.
FALSE. The principal is considered as the direct employer and the labor-contractor is considered
as the agent.
4. An Employee may be both regular employee and project employee at the same time.
FALSE. The termination of work of regular employees and project employees are incompatible
with each other. The employment of the project employee terminates upon the completion of the
project whereas the regular employee’s employment is not terminated upon the completion of
work.

5. Abandonment of work/employment is not a valid defense if the employee immediately

files a complaint for illegal dismissal. FALSE. An employer may raise the defense of
abandonment of work despite a complaint for illegal dismissal.

6. Payment of Separation Pay is always required when the employee is dismissed due to an
authorized cause. FALSE. In case of closure of business due to serious financial loss no
separation pay is required to be paid.

7. THe twin notice rule must always be observed prior to the dismissal of an
employee. FALSE. The twin notice rule is required only in case of Just cause termination.

8. Separation pay may not be awarded if an employee is dismissed based on just cause.
- TRUE.

9. In all cases, the compulsory retirement age of employees/workers is 65 years old.

- FALSE. The compulsory retirement age is 60 years old.

10. Under the Employee’s Compensation Law, any injury sustained by an employee is
presumed to be compensable.
FALSE. No presumption is provided by law. The injury must be the result of accident arising out
of and in the course of the employment.

DISAFFILIATION A local union has the right to disaffiliate from its mother federation.The
right of a local union to disaffiliate from the mother federation is primarily dependent upon the
constitution and by-laws of the federation.

Proper time for Disaffiliation: Generally, during the 60-day freedom period immediately
preceding the expiration of the CBA.
Exceptionally, disaffiliation may be carried out before the onsetof the freedom period, if there is
a substantial shift of allegiance on the part of the majority of the members of the union.

1. Rights of Union Members1.1 RIGHT TO RESIGN FROM THE UNION 1.2 RIGHT TO
FAIR DEALING 1.3 RIGHT TO INFORMATION 1.4 RIGHT TO DETERMINE MAJOR
UNION POLICIES 1.5 RIGHT TO ELECT UNION OFFICERS 1.6 RIGHT TO SEEK
INVESTIGATION OF IRREGULARITIES