Q: What are the elements of large scale illegal recruitment?

A: The prosecution is burdened to prove three essential elements:

1. the person charged undertook a recruitment activity under Article 13(b) or any
prohibited practice under Article 34 of the Labor Code;
2. accused did not have the license or the authority to lawfully engage in the
recruitment and placement of workers; and
3. accused committed the same against three or more persons individually or as a
group.

Q: Who are criminally liable for illegal recruitment under the Migrant Worker’s
Law?
A: Principals, accomplices and accessories. In case of juridical persons, the officers
having control, management or direction of their business shall be liable. An employee
may be held liable if it is shown that he actively and consciously participated in the
recruitment process.

Q: Rule on the constitutionality of this provision of the Migrant Worker’s Act: In

case of termination of overseas employment without just, valid or authorized cause
as defined by law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his employment contract or for
three (3) months for every year of the unexpired term, whichever is less.
A: Serrano v. Gallant Maritime Services, Inc.: Some constitutional provisions are not
judicially enforceable. Article XIII sec. 3 (The State shall afford full protection to labor,
local and overseas, organized and unorganized, and promote full employment and
equality of employment opportunities for all) has been described as not self-actuating.
These are automatically acknowledged and observed without need for enabling
legislation. However, to declare that the constitutional provisions are enough to
guarantee the exercise of the rights embodied therein, and the realization of ideals therein
expressed would be impractical, if not unrealistic. Subsequent legislation is still needed
to define the parameters of these rights to ensure the protection and promotion, not only
the rights of the labor sector, but of the employers’ as well. When the challenge to a
statute is premised on the perpetuation of prejudice against persons favored by the
Constitution with special protection – such as the working class or a section thereof—the
Court may recognize the existence of a suspect classification and subject the same to
strict judicial scrutiny. The subject clause does not state or imply any definitive
governmental purpose; and it is for that precise reason that the clause violates not just
right to equal protection, but also the right to substantive due process under Section 1,
Article III of the Constitution. The clause being unconstitutional, petitioner is entitled to
his salaries for the entire unexpired period of his employment contract, pursuant to law
and jurisprudence prior to the enactment of RA 8042.

Q: A Inc. hired B as administrative assistant whose responsibilities included

purchasing equipment and supplies of the corporation. A Inc. dismissed him due to
purchases wherein only acknowledgment receipts, instead of official receipts, were
received and recorded by the corporation's accounting department. B also allegedly
surreptitiously obtained commissions for in dealing with other companies. B filed a
complaint for illegal dismissal against A Inc. He claims that his employer failed to
prove its claim that he is a confidential employee; hence, his tenure did not depend
on the trust and confidence reposed by A Inc. on him. He also claims that he was
unjustly dismissed. Are his claims valid?

A: NO. For the purpose of applying the provisions of the Labor Code on who may join
unions of the rank-and-file employees, jurisprudence defines "confidential employees" as
those who "assist or act in a confidential capacity to persons who formulate, determine,
and effectuate management policies in the field of labor relations."

However, for the purpose of applying the Labor Code provision on loss of confidence as
a just cause for the dismissal of an employee, jurisprudence teaches that: Loss of
confidence should ideally apply only to cases involving employees occupying positions
of trust and confidence or to those situations where the employee is routinely charged
with the care and custody of the employer's money or property. As stated early on,
Michael’s duties included purchasing supplies and equipment of the corporation. He thus
regularly handled significant amounts of money and property in the normal and routine
exercise of his functions. His position was thus one of trust and confidence, loss of which
is a just cause for dismissal. (MICHAEL V. SANTOS vs. SHING HUNG PLASTICS, CO.,
INC. and NLRC. G.R. No. 172306. September 29, 2008)

Q: T was employed by N Co. as a repairman in charge of maintenance and welding

works, which called for him to move heavy equipment and materials. After a
number of years he felt slight pains in his back and other parts of his body. He
consulted company-designated clinic, which said that he is fit to resume sea duties.
He sought a second opinion from an orthopedic expert who declared him unfit for
further sea duties. The doctor recommended a partial permanent disability. He
thereupon sought to claim illness allowance and disability benefits from N Co. His
claim was denied in view of the declaration by the company-designated physicians
that he was fit to work. He thus filed a complaint against said Corporation. The
latter argues against him positing that the company-designated physician declared
him fit to resume sea duties. Implied in this argument is that T is already precluded
from seeking a second opinion. Rule.

A: T can seek a second opinion. The right of a seafarer to seek a second opinion is
recognized by the POEA Standard Employment Contract of 2000, the CBA governing
the relationship between Talavera and Nyk-Fil, and jurisprudence. While it is the
company-designated physician who must declare that the seaman suffers a permanent
disability during employment, it does not deprive the seafarer of his right to seek a
second opinion, hence, the Contract recognizes the prerogative of the seafarer to request a
second opinion and, for this purpose, to consult a physician of his choice. (NYK-FIL
SHIP MANAGEMENT INC., ET. AL., vs. ALFONSO T. TALAVERA. G.R. No. 175894.
November 14, 2008)

Q: In the previous problem, N Co. further argues that the injuries incurred by T are
not work-related. Is this argument valid?
A: T’s illness or injury is compensable. For disability to be compensable under Section
20 (B) of the 2000 POEA Standard Employment Contract, it must be the result of a work-
related injury or illness. It defines "work-related injury" as "injury(ies) resulting in
disability or death arising out of and in the course of employment" and "work-related
illness" as "any sickness resulting to disability or death as a result of an occupational
disease listed under Section 32-A of this contract with the conditions set therein
satisfied." Compensability of an ailment does not depend on whether the injury or disease
was pre-existing at the time of the employment but rather if the disease or injury is work-
related or aggravated his condition

Q: C Hospital engaged the services of medical doctors-spouses Dr. A and Dr. B as

part of its team of resident physicians. Reporting at the hospital twice-a-week on
twenty-four-hour shifts. Dr. A was dismissed for allegedly participating in a strike
of rank and file employees and for his failure to heed the return-to-work order. The
hospital then did not give Dr. B, who was not involved in the said incident, any work
schedule. Subsequently, they filed complaints for illegal dismissal. The hospital
raised the defense that there is no employer-employee relationship. Is it’s defense
valid?

A: NO. They are employees of the hospital. Under the "control test", an employment
relationship exists between a physician and a hospital if the hospital controls both the
means and the details of the process by which the physician is to accomplish his task. In
the case at hand, the complainants maintained specific work-schedules, as determined by
the hospital through its medical director, which consisted of 24-hour shifts totaling forty-
eight hours each week and which were strictly to be observed under pain of
administrative sanctions. That the hospital exercised control over them gains light from
the undisputed fact that in the emergency room, the operating room, or any department or
ward for that matter, their work is monitored through its nursing supervisors, charge
nurses and orderlies. (CALAMBA MEDICAL CENTER, INC., vs. NLRC ET. AL.,
G.R. No. 176484. November 25, 2008)

Q: As justification for dismissing an employee for violating its meal policy

(employee ate a fried chicken during her duty because she was experiencing
stomach pains due to hunger), McDo cites, among others, the said employee’s past
infractions. When can Previous offenses may be used as valid justification for
dismissal from employment?
A: Previous offenses may be used as valid justification for dismissal from work only if
they are related to the subsequent infraction. In one case the employers cite the
checkered employment record of the dismissed employee to justify her dismissal thus:

x x x Her employment record was marred by numerous infractions of Company rules for
which she was repeatedly sanctioned by her superiors, to wit: a written warning for
failing to report for work; a three-day suspension for incurring several absences; two (2)
verbal warnings and a written warning among others for incurring a cash shortages.

This was deemed as a desultory attempt to justify the illegal dismissal of the said
employee. Previous infractions, in other words, may be used if they have a bearing on the
proximate offense warranting dismissal. No such bearing exists, however, between the
above-detailed alleged infractions with respondent’s meal policy
violation. (MCDONALD'S (KATIPUNAN BRANCH) and/or MCGEORGE FOOD
INDUSTRIES, INC., vs. MA. DULCE ALBA,
G.R. No. 156382. December 18, 2008)

Q: Respondent University, refused salaries of union members be deducted due to

their non- attendance in union meetings. Union members who staged a strike
against the respondent were terminated from work. Is the University guilty of ULP?
A: No, to constitute ULP, violations of the CBA must be gross. Under Art 261, LC, gross
violation means flagrant and/or malicious refusal to comply with the economic provisions
thereof. The University can not be faulted for ULP as it in good faith merely heeded the
request of Union members. Thus under Art. 261:

X x X

2) Violations of a CBA, except those which

are gross in character, shall no longer
be treated as unfair labor practice and
shall be resolved as grievances under
the CBA.

(ARELLANO UNIVERSITY EMPLOYEES ET AL. VS CA, NLRC & ARELLANO

UNIVERSITY, INC. GR NO. 139940. September 19, 2006)

Q: Is a welga ng bayan a valid strike?

A: Stoppage of work due to welga ng bayan is in the nature of a general strike, an

extended sympathy strike. It affects numerous employers including those who do not
have a dispute with their employees regarding their terms and conditions of employment.
Employees, who have no labor dispute with their employer but who, on a day they are
scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal
work stoppage.
Q: What is the rationale for the abovementioned doctrine?
A: Although the act of joining the welga ng bayan is considered merely as an exercise of
the freedom of expression, freedom of assembly or freedom to petition the government
for redress of grievances, the exercise of such rights is not absolute. For the protection of
other significant state interests such as the "right of enterprises to reasonable returns on
investments, and to expansion and growth" enshrined in the 1987 Constitution must also
be considered, otherwise, oppression or self-destruction of capital in order to promote the
interests of labor would be sanctioned. And it would give imprimatur to workers’ joining
demonstrations/rallies even before affording the employer an opportunity to make the
necessary arrangements to counteract the implications of the work stoppage on the
business, and ignore the novel "principle of shared responsibility between workers and
employers" aimed at fostering industrial peace. There being no showing that the
employees notified the employers of their intention, or that they were allowed by the
latter, to join the welga ng bayan, their work stoppage is beyond legal protection.
(BIFLEX PHILIPPINES LABOR UNION V. FILFLEX INDUSTRIAL AND
MANUFACTURING CORPORATION. GR NO. 155679. December 19, 2006)

Q: May a rank-and-file employee, who is not a member of the union representing

his bargaining unit, avail of the wage increases which the union negotiated for its
members?

A: Yes. The beneficiaries of a Collective Bargaining Agreement include Non-Union

Members; otherwise, there will be discrimination which is prohibited by law. [New
Pacific Timber and Supply Co., Inc. vs. NLRC, 328 SCRA 424 (2000)].

Q: State whether the following policies of A Company violate the right against
discrimination. Explain.

A. Policy prohibiting women employee from marrying

B. Policy prohibiting an employee of A Company from marrying an employee of

a competitor company

C. Policy prohibiting marriage between its employees

A: A. The blanket policy disqualifying from work any woman who contracts marriage
violates the right against discrimination afforded all women workers under Art. 136
of the Labor Code. However, a requirement that a woman employee must remain
unmarried could be justified as a “bona fide occupational qualification” whether the
particular requirement of the job would justify the same, but not on the ground of a
general principle, such as the desirability of spreading work in the work place. A
requirement of that nature would be valid provided it reflects an inherent quality
 reasonably necessary for satisfactory job performance [ PT&T Co. v. NLRC, G.R. No,
118978, May 23, 1997].

B. The policy prohibiting an employee from marrying an employee of a

competitor company is non-discriminatory. A Company has the right to guard its trade
secrets, manufacturing formulas, marketing strategies and other confidential programs
and information from competitors. The possibility that a competitor company will gain
access to its secrets and procedures is a valid interest and the prohibition is reasonable
under the circumstance [Tecson v. Glaxo, G.R. No. 162994, Sept. 17, 2004].

C. The prohibition on marriage between employees is discriminatory. There is no

legitimate business concern in imposing the questioned policy [State Paper Corp. v.
Simbol, G.R. No. 164774, April 12, 2006].

Q: What is redundancy and what criteria may an employer use in determining who to
lay-off in its redundancy program?

A. Redundancy exists when the service capability of the work force is in excess of what
is reasonably needed to meet the demands of the business enterprise, as held in the case
of Dusit Hotel Nikko vs. National Union of Workers in Hotel, restaurant and Allied
industries (NUWHRAIN)-Dusit Hotel Nikko Chapter, (466 SCRA 374).

It is imperative for employers to employ fair and reasonable criteria in

implementing their redundancy programs, such as but not limited to (a) preferred
status, (b) efficiency, and (c) seniority, as held in the case of Lopez Sugar Corp.
vs. Franco, (458 SCRA 515).

Q: Is it required for a worker to lose the use of any part of his body to be considered
as permanently disable within the meaning of the POEA Standard Employment
Contract?
A: No. Permanent disability is the inability of a worker to perform his job for more than
120 days, regardless of whether he loses the use of any part of his body. The law does not
require that the illness should be incurable. What is important is that he was unable to
perform his customary work for more than 120 days which constitutes permanent total
disability.

Q: What is the Brent doctrine?

A: The second paragraph of Art 280 stating that “Any 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 actually exists.” is applicable to agreements
entered into precisely to circumvent security of tenure. It should have no application to
instances where a fixed period of employment was agreed upon knowingly and
voluntarily by the parties, without any force, duress or improper pressure being brought
to bear upon the employee and absent any other circumstances vitiating his consent, or
where it satisfactorily appears that the employer and employee dealt with each other on
more or less equal terms with no moral dominance whatever being exercised by the
former over the latter. (Brent School, Inc. v Zamora. G.R. No. L-48494 February 5,
1990).

Q: X was an employee of ABC Corporation. He sent an email to his co-workers

inviting them to a Halloween party at another venue after the Senior Vice President
of the company did not agree to the idea of holding it at their office. He further
stated that the Senior Vice President “was unfair. Para bang lagi siyang iniisahan sa
trabaho. Anyway, solohin na lang niya bukas ang office.” The Senior Vice President
got hold of a copy of the email. X was subsequently dismissed. Was X’s dismissal
valid? Assume that the requisites for procedural due process were observed.
A: Yes. X therefore displayed a tendency to act without management’s approval, and
even against management’s will, as he invited her co-workers to join a trick or treating
activity at another venue during office hours. The message also came across as an
encouragement to ignore SVP’s authority, and portrayed him as unworthy of respect
because of his unpopular personality.

Q: Can a rank-and-file employee be dismissed due to loss of trust and confidence?

A: Yes, a mere rank-and-file employee can be dismissed on the ground of loss of
confidence albeit it requires "a higher proof of involvement" in the questioned acts. As a
general rule, employers are allowed wide latitude of discretion in terminating the
employment of managerial personnel. It is sufficient that there is some basis for loss of
confidence. However, in the case of ordinary rank-and-file employees, termination on the
basis of the same grounds requires a higher proof of involvement in the events in
question; mere uncorroborated assertions and accusations will not suffice.

Q: Company R adopted an upgraded salary scale that increased the hiring rates of
new employees without increasing the salary rates of old employees. Is there wage
distortion in this case?
A: None. To determine the existence of wage distortion, the "historical" classification of
the employees prior to the wage increase must be established. It must be shown that as
between the different classification of employees, there exists a "historical" gap or
difference. In this case, the employees have been "historically" classified into levels and
not on the basis of their length of service. The entry of new employees to the company
ipso facto places them under any of the levels in the new salary scale adopted. It is a
recognized management prerogative of formulating a wage structure.

Q: Good Friday and Araw ng Kagitingan falls on the same day. How much is M
entitled to receive if she works on that day?
A: 200% of his basic wage. Article 94 of the Labor Code, as amended, affords a worker
the enjoyment of ten paid regular holidays. The fact that two holidays falls on the same
day should not operate to reduce to nine the ten holiday pay benefits a worker is entitled
to receive. (Asian Transmission Corporation v CA. G.R. 144664. March 15, 2004)

Q: When can an employee be regarded as having willfully disobeyed his employer?

A: The employee’s assailed conduct has been willful or intentional, the willfulness being
characterized by a "wrongful and perverse attitude;" and the order violated must have
been reasonable, lawful, made known to the employee and must pertain to the duties
which he had been engaged to discharge.

Q: What are the types of tests in determining Employee-Employer Relationship?

A:
1. Four-fold test: The four elements of an employment relationship are: (a) the
selection and engagement of the employee; (b) the payment of wages; (c) the
power of dismissal; and (d) the employer's power to control the employee's
conduct.
2. Control test: Whether the rules set by the employer are meant to control not just
the results of the work but also the means and method to be used by the hired
party in order to achieve such results.
3. Economic Relations test: The economic realities prevailing within the activity or
between the parties are examined, taking into consideration the totality of
circumstances surrounding the true nature of the relationship between the parties.
The benchmark of economic reality in analyzing possible employment
relationships for purposes of applying the Labor Code is the economic
dependence of the worker on his employer.

Q: When is the transfer of an employee valid?

A: To determine the validity of the transfer of employees, the employer must show that
the transfer is not unreasonable, inconvenient, or prejudicial to the employee, and that it
does not involve a demotion in rank or a dimunition of his salaries, privileges and other
benefits – should the employer fail to overcome this burden of proof, the employee’s
transfers shall be tantamount to constructive dismissal. (Herida vs. F& C Pawnshop and
Jewelry Store G.R. No. 172601 April 16, 2009)

Q: What are the requisites for Retrenchment to be valid?

A:
1. That retrenchment is necessary to prevent losses and it is proven, by sufficient and
convincing evidence such as the employer's financial statements audited by an
independent and credible external auditor, that such losses are substantial and not
merely flimsy and actual or reasonably imminent; and that retrenchment is the
only effective measure to prevent such imminent losses;
2. That written notice is served on to the employees and the DOLE at least one (1)
month prior to the intended date of retrenchment;[and
3. That the retrenched employees receive separation pay equivalent to one (1) month
pay or at least one-half (1/2) month pay for every year of service, whichever is
higher. (Eastridge Golf Club, Inc. vs. Eastridge Golf Club, Inc. Labor Union-
Super G.R. No. 166760 August 22, 2008)