Labor Law 2019 Bar Q And A

Do you know that the following are the suggested answers to the PART I of the 2019 Bar Examinations in Labor Law: PARTIAL SUGGESTED ANSWERS TO QUESTION NUMBERS 1-5. The following are just mere guide and no special claim. A.1. Define, explain or distinguish the following terms: (a) Just and authorized causes (2%) SUGGESTED ANSWER: In Libcap Marketing Corp. v. Baquial, G.R. No. 192011, June 30, 2014, the Supreme Court discussed the two causes for a valid dismissal, as differentiated in the case of Jaka Food Processing Corporation v. Pacot, as follows: A dismissal for just cause under Article 282 implies that the employee concerned has committed, or is guilty of, some violation against the employer, i.e. the employee has committed some serious misconduct, is guilty of some fraud against the employer, or, as in Agabon, he has neglected his duties. Thus, it can be said that the employee himself initiated the dismissal process.

Seasonal employment operates much in the same way as project employment, albeit it involves work or service that is seasonal in nature or lasting for the duration of the season. (Ibid) As with project employment, although the seasonal employment arrangement involves work that is seasonal or periodic in nature, the employment itself is not automatically considered seasonal so as to prevent the employee from attaining regular status. To exclude the asserted “seasonal” employee from those classified as regular employees, the employer must show that: (1) the employee must be performing work or services that are seasonal in nature; and (2) he had been employed for the duration of the season. (See Hacienda Bino/Hortencia Starke, Inc. v. Cuenca., supra, at 209; and Hda. Fatima v. Nat’l Fed. of Sugarcane Workers–Food and Gen. Trade, supra at 596) NOTE: The foregoing answer can be found in pages 681 and 700-702 of the book entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Historically, the question about project employment is always being distinguished with casual/contractual worker (see 2005 BQ No. II [2b]) or regular employee (see 1996 BQ No. 3) and the question about seasonal employee is about illegal termination (see 2010 PART II, BQ No. XVII). (c) Strikes and lockouts (2%)

On another breath, a dismissal for an authorized cause under Article 283 does not necessarily imply delinquency or culpability on the part of the employee. Instead, the dismissal process is initiated by the employer’s exercise of his management prerogative, i.e. when the employer opts to install labor saving devices, when he decides to cease business operations or when, as in this case, he undertakes to implement a retrenchment program.

SUGGESTED ANSWER:

Accordingly, it is wise to hold that: (1) if the dismissal is based on a just cause under Article 282 but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee; and (2) if the dismissal is based on an authorized cause under Article 283 but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of his management prerogative.

NOTE: The foregoing answer can be found in page 12 of the book entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano.

NOTE: The foregoing answer can be found in page 755 of the book entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. Questions involving the same subject matter were given during the 2017 [see BQ No. X (B)] and 2000 Bar [see BQ No. VI] Examinations. (b) Seasonal and project employees (2%) SUGGESTED ANSWER: In Universal Robina Sugar Milling Corporation v. Acibo, G.R. No. 186439, January 15, 2014, the Honorable Supreme Court elucidated the distinction between seasonal employment and project employment as follows: A project employment, on the other hand, contemplates on arrangement whereby “the employment has been fixed for a specific project or undertaking whose completion or termination has been determined at the time of the engagement of the employee[.]” (LABOR CODE, Article 280) Two requirements, therefore, clearly need to be satisfied to remove the engagement from the presumption of regularity of employment, namely: (1) designation of a specific project or undertaking for which the employee is hired; and (2) clear determination of the completion or termination of the project at the time of the employee’s engagement. (See Violeta v. NLRC, 345 Phil. 762, 771 [1997])

“Strike” means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute while “Lockout” means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.

(d) Bona fide occupational qualifications (2%) SUGGESTED ANSWER: Bona fide occupational qualifications (BFOQ) are employment qualifications that employers are allowed to consider while making decisions about hiring and retention of employees. The qualification should relate to an essential job duty and is considered necessary for operation of the particular business. This test was discussed by the High Court in Star Paper Corporation v. Simbol, G.R. No. 164774, April 12, 2006, as follows: We note that since the finding of a bona fide occupational qualification justifies an employer’s no-spouse rule, the exception is interpreted strictly and narrowly by these state courts. There must be a compelling business necessity for which no alternative exists other than the discriminatory practice. (See note 117, A. Giattina, supra) To justify a bona fide occupational qualification, the employer must prove two factors: (1) that the employment qualification is reasonably related to the essential operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. (Richard G. Flood and Kelly A. Cahill, The River Bend Decision and How It Affects Municipalities’ Personnel Rule and Regulations, Illinois Municipal Review, June 1993, p. 7) NOTE: The foregoing answer can be found in page 48 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. (e) Grievance machinery (2%) SUGGESTED ANSWER:

Grievance machinery a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. (Article 273 [260], Labor Code) NOTE: The foregoing answer can be found in page 434 of the book entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This is the first time that the term was asked to be defined. A.2. X is a member of the Social Security System (SSS). In 2015, he died without any spouse or children. Prior to the semester of his death, X had paid 36 monthly contributions. His mother, M, who had previously been receiving regular support from X, filed a claim for the latter’s death benefits. (a) Is M entitled to claim death benefits from the SSS? Explain. (2.5%) SUGGESTED ANSWER: Yes, M is entitled to claim the death benefits. According to Section 8 (k) of the SSS Law (RA 8282 [now RA 11199]) in the absence of the dependent spouse and children the dependent parents shall be the secondary beneficiaries of the member. In this case, since X died without any spouse or children his mother M can therefore claim the death benefits. NOTE: The foregoing answer can be found in page 955 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. A similar question was asked on the subject last 2017 (see 2017 BQ No. XII [b]). (b) Assuming that X got married to his girlfriend a few days before his death, is M entitled to claim death benefits from the SSS? Explain. (2.5%) SUGGESTED ANSWER: No, M is not entitled to claim death benefits of X. According to Section 8 (k) of the SSS Law (RA 8282 [now RA 11199]) one of the primary beneficiaries is the dependent spouse while dependent parents are only secondary beneficiaries of the member. M can only be entitled to the death benefits in the absence of primary beneficiaries such as the dependent spouse and children. On the assumption that X got married to his girlfriend a few days before his death, M is not entitled to claim her son’s death benefits from the SSS. NOTE: The foregoing answer can be found in page 955 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano. A.3. A, B, and C were hired as resident-doctors by MM Medical Center, Inc. In the course of their engagement, A, B, and C maintained specific work schedules as determined by the Medical Director. The hospital also monitored their work through supervisors who gave them specific instructions on how they should perform their respective tasks, including diagnosis, treatment, and management of their patients. One day, A, B, and C approached the Medical Director and inquired about the non-payment of their employment benefits. In response, the Medical Director told them that they are not entitled to any because they are mere “independent contractors” as expressly stipulated in the contracts which they admittedly signed. As such, no employer-employee relationship exists between them and the hospital.

(a) What is the control test in determining the existence of an employer-employee relationship? (2%) SUGGESTED ANSWER: In Royale Homes Marketing Corporation v. Alcantara, G. R. No. 195190, July 28, 2014, it was held: Among the four, the most determinative factor in ascertaining the existence of employeremployee relationship is the "right of control test". "It is deemed to be such an important factor that the other requisites may even be disregarded." (Sandigan Savings and Loan Bank, Inc. v. National Labor Relations Commission, 324 Phil. 348, 358 [1996]) This holds true where the issues to be resolved iswhether a person who performs work for another is the latter’s employee or is an independent contractor, (Cosmopolitan Funeral Homes, Inc. v. Maalat, G.R. No. 86693, July 2, 1990, 187 SCRA 108, 112) as in this case. For where the person for whom the services are performed reserves the right to control not only the end to be achieved, but also the means by which such end is reached, employer-employee relationship is deemed to exist (Id. at 112-113). (b) Is the Medical Director’s reliance on the contracts signed by A, B, and C to refute the existence of an employer-employee relationship correct? If not, are A, B, and C employees of MM Medical Center, Inc.? Explain. (3%) SUGGESTED ANSWER: No, the Medical Director’s reliance on the contracts is not correct. In Calamba Medical Center, Inc. v. NLRC, G.R. No. 176484, November 25, 2008, applying the “control test”, the Supreme Court ruled that 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. (Nogales v. Capitol Medical Center, G.R. No. 142625, December 19, 2006, 511 SCRA 204, 221 citing Diggs v. Novant Health, Inc., 628 S.E.2d 851 [2006]) In this case, the element of control is very clear in the given facts. This is because the residentdoctors in the course of their engagement maintained specific work schedules as determined by the Medical Director and the hospital also monitored their work through supervisors who gave them specific instructions on how they should perform their respective tasks, including diagnosis, treatment, and management of their patients. A.4. Mrs. B, the personal cook in the household of X, filed a monetary claim against her employer, X, for denying her service incentive leave pay. X argued that Mrs. B did not avail of any service incentive leave at the end of her one (1) year of service and hence, not entitled to the said monetary claim. (a) Is the contention of X tenable? Explain. (2.5%) SUGGESTED ANSWER: Yes, X’s contention is tenable. While under Kasambahay Law (RA 10361) A domestic worker who has rendered at least one (1) year of service shall be entitled to an annual service incentive leave of five (5) days with pay any unused portion of said annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not be convertible to cash. (Section 29, Article IV, Republic Act No. 10361) Hence, Mrs. B is not entitled to the said monetary claim. NOTE: The foregoing answer can be found in page 783 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.

(b) Assuming that Mrs. B is instead a clerk in X’s company with at least 30 regular employees, will her monetary claim prosper? Explain. (2.5%) SUGGESTED ANSWER: Yes, Mrs. B's monetary claim will prosper. The Rules to Implement the Labor Code is very clear that the service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year. This is the distinction with respect to the service incentive leave (SIL) of a domestic worker under RA 10361. Moreover, the establishment is not excluded from paying the SIL as it was regularly employing more than nine (9) employees. NOTE: The foregoing answer can be found in page 467 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018, by Atty. Voltaire T. Duano.

In the given facts, the absence of company policy was clearly stated. Moreover, the grant of the subject gas and transportation is not a regular company practice in the absence of substantial evidence that it was done over a long period of time or it was made consistently and deliberately.

A.5. Ms. F, a sales assistant, is one of the eight (8) workers regularly employed by ABC Convenience Store. She was required to report on December 25 and 30. Should ABC Convenience Store pay her holiday pay? Explain. (2.5%) SUGGESTED ANSWER: ABC Convenience Store is excluded from paying F her holiday pay. Under the Rules to Implement the Labor Code the retail and service establishments regularly employing less than ten (10) workers is excluded from the coverage of holidays with pay Section 1, Rule IV, Book III, Rules to Implement the Labor Code).

A.6. D, one of the sales representatives of OP, Inc., was receiving a basic pay of P50,000.00 a month, plus a 1% overriding commission on his actual sales transactions. In addition, beginning three (3) months ago, or in August 2019, D was able to receive a monthly gas and transportation allowance of P5,000.00 despite the lack of any company policy therefor. In November 2019, D approached his manager and asked for his gas and transportation allowance for the month. The manager declined his request, saying that the company had decided to discontinue the aforementioned allowance considering the increased costs of its overhead expenses. In response, D argued that OP, Inc.’s removal of the gas and transportation allowance amounted to a violation of the rule on non-diminution of benefits. Is the argument of D tenable? Explain. (2.5%) SUGGESTED

The argument of D is not tenable. The case of Wesleyan University-Philippines v. Wesleyan University-Philippines Faculty and Staff Association, G.R. No. 181806, March 12, 2014 laid down the rule as to when to apply the Non-Diminution Rule. This rule, however, applies only if the benefit is based on express policy, a written contract, or has ripened into a practice. (Central Azucarera De Tarlac v. Central Azucarera De Tarlac Labor Union-NLU, G.R. No. 188949, July 26, 2010, 625 SCRA 622, 630-631) While in as held in Vergara, Jr. v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 176985, April 1, 2013, “To be considered as a regular company practice, the employee must prove by substantial evidence that the giving of the benefit is done over a long period of time, and that it has been made consistently and deliberately.” (See Eastern Telecommunications Philippines, Inc. v. Eastern Telecoms Employees Union, supra note 15, at 532; Supreme Steel Corporation v. Nagkakaisang Manggagawa ng Supreme Independent Union (NMS-IND-APL), supra, at 528; and Metropolitan Bank and Trust Company v. National Labor Relations Commission, G.R. No. 152928, June 18, 2009, 589 SCRA 376, 384)

ANSWER:

Applying the above rule, the discontinuance is not a violation of non-diminution rule. A.7. W Gas Corp. is engaged in the manufacture and distribution to the general public of various petroleum products. On January 1, 2010, W Gas Corp. entered into a Service Agreement with Q Manpower Co., whereby the latter undertook to provide utility workers for the maintenance of the former’s manufacturing plant. Although the workers were hired by Q Manpower Co., they used the equipment owned by W Gas Corp. in performing their tasks, and were likewise subject to constant checking | based on W Gas Corp.’s procedures. On February 1, 2010, Mr. R, one of the utility workers, was dismissed from employment in line with the termination of the Service Agreement between W Gas Corp. and Q Manpower Co. Thus, Mr. R filed a complaint for illegal dismissal against W Gas Corp., claiming that Q Manpower Co. is only a labor-only contractor. In the course of the proceedings, W Gas Corp. presented no evidence to prove Q Manpower Co.’s capitalization. (a)

Is

Q

SUGGESTED

Manpower

Co.

a

labor-only

contractor?

Explain.

(2.5%) ANSWER:

Q Manpower Co. is a labor-only contractor. In Valencia v. Classique Vinyl products Corporation, G. R. No. 206390, January 30, 2017 it was ruled that generally, the presumption is that the contractor is a labor-only [contractor] unless such contractor overcomes the burden of proving that it has the substantial capital, investment, tools and the like. W Gas Corp. and Q Manpower

Co. failed to overcome this presumption. Therefore it is a labor-only contractor.

discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. There is involuntary resignation due to the harsh, hostile, and unfavorable conditions set by the employer. The test of constructive dismissal is whether a reasonable person in the employee’s position would have felt compelled to give up his employment/position under the circumstances.

(b) Will Mr. R’s complaint for illegal dismissal against W Gas Corp. prosper? Explain. (2.5%)

On the other hand, “[r]esignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether he or she, in fact, intended to sever his or her employment.” (Gan v. Galderma Philippines, Inc., et al., supra, at 638-639. [Citations omitted])

SUGGESTED

ANSWER:

Yes, Mr. R’s complaint for illegal dismissal against W Gas Corp. will prosper. In this case, since the arrangement between W Gas Corp. and Q Manpower Co. is labor-only contracting, due to its failure to overcome the presumption, the latter shall be considered merely as an agent of the former, who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. The liability of W Gas Corp. for illegal dismissal is based on Article 109 of the Labor Code which says that every employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code.

Ms.

SUGGESTED

A.8. Ms. T was caught in the act of stealing the company property of her employer. When Ms. T admitted to the commission of the said act to her manager, the latter advised her to just tender her resignation; otherwise, she would face an investigation which would likely lead to the termination of her employment and the filing of criminal charges in court. Acting on her manager’s advice, Ms. T submitted a letter of resignation. Later on, Ms. T filed a case for constructive dismissal against her employer. While Ms. T conceded that her manager spoke to her in a calm and unforceful manner, she claimed that her resignation was not completely voluntary because she was told that should she not resign, she could be terminated from work for just cause, and worse, criminal charges could be filed against her. (a) What is the difference between resignation and constructive dismissal? (2%) SUGGESTED

(b)Will

ANSWER:

Doble, Jr. v. ABB, Inc. G.R. No. 215627, June 5, 2017 discussed the difference between constructive dismissal and resignation, citing Gan v. Galderma Philippines, Inc.,701 Phil. 612 (2013), as follows: To begin with, constructive dismissal is defined as quitting or cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay and other benefits. It exists if an act of clear

T’s

claim

for

constructive

dismissal

prosper.

Explain? ANSWER:

Ms. T’s claim for constructive dismissal will not prosper. It is settled that there is nothing reprehensible or illegal when the employer grants the employee a chance to resign and save face rather than smear the latter's employment record, as in this case. The facts belie Ms. T’s argument that her employer constructively dismissed her. These circumstances show that she was given the option to voluntarily resign from the company instead of dealing with an investigation which might result in her dismissal. Verily, the manager’s decision to give Ms. T a graceful exit rather than to file an action for redress is perfectly within the discretion of the former; as it is not uncommon that an employee is permitted to resign to avoid the humiliation and embarrassment of being terminated for just cause after the exposure of her malfeasance. In sum, the company did not constructively dismiss Ms. T; but rather, the latter voluntarily resigned from her job in order to avoid a full-blown administrative trial regarding her misdeeds which could potentially result in her termination for just cause. While it may be said that she did not tender her resignation wholeheartedly, circumstances of her own making did not give her any other option but to voluntarily do so. The foregoing is based on the ponencia of Justice Perlas Bernabe in Central Azucarera de Bais, Inc. v. Siason, G.R. No. 215555, July 29, 2015. A.9. After due proceedings, the Labor Arbiter (LA) declared Mr. K to have been illegally dismissed by his former employer, ABC, Inc. As a consequence, the LA directed

ABC, Inc. to pay Mr. K separation pay in lieu of reinstatement as well as his full backwages.

the

subject

was

asked.

A.10. While ABC, Inc. accepted the finding of illegal dismissal, it nevertheless filed a motion for reconsideration, claiming that the LA erred in awarding both separation pay and full backwages, and instead, should have ordered Mr. K’s reinstatement to his former position without loss of seniority rights and other privileges, but without payment of backwages. In this regard, ABC, Inc. pointed out that the LA’s ruling did not contain any finding of strained relations or that reinstatement was no longer feasible. In any case, it appears that no evidence was presented on this score. (a)Is ABC, Inc.’s contention to delete the separation pay, and instead, order reinstatement without backwages correct? Explain. (3%) SUGGESTED

For purposes of prescription, within what periods from the time the cause of action accrued should the following cases be filed: (a)

Money

claims

arising

from

employer-employee

relations

SUGGESTED

ANSWER:

All money claims and benefits arising from employer relations shall be filed within three (3) years from the time the cause of action accrued; otherwise, they shall be forever barred. (Section 1, Rule II, Book VII, Rules to Implement the Labor Code, Article 306. [291], Labor Code)

ANSWER:

Yes, ABC Inc.’s contention is correct. It is a established doctrinal rule that even in cases of illegal dismissal, the doctrine of strained relations is not applied indiscriminately as to bar reinstatement, especially when the employee has not indicated an aversion to returning to work (Coca-Cola Bottlers Phils., Inc. v. Daniel, G.R. No. 156893, June 21, 2005) or does not occupy a position of trust and confidence in (Globe-Mackay Cable and Radio Corporation v. NLRC, G.R. No. 82511, 3 March 1992, 206 SCRA 701, 712) or has no say in the operation of the employer’s business. (Abalos v. Philex Mining Corporation, G.R. No. 140374, November 27, 2002) Although litigation may also engender a certain degree of hostility, it has likewise been ruled that the understandable strain in the parties’ relations would not necessarily rule out reinstatement which would, otherwise, become the rule rather than the exception in illegal dismissal cases. (Procter and Gamble Philippines v. Bondesto, G.R. No. 139847, March 5, 2004)

(b)

Illegal

dismissal

(1%)

SUGGESTED

ANSWER:

Teekay Shipping Philippines, Inc. v. Concha, G.R. No. 185463, February 22, 2012 ruled: In Callanta v. Carnation Philippines, Inc., 229 Phil. 279, 288 (1986), this Court ruled that actions based on injury to rights prescribe in four (4) years under Article 1146 of the Civil Code rather than three (3) years as provided for the Labor Code. An action for damages involving a plaintiff separated from his employment for alleged unjustifiable causes is one for injury to the rights of the plaintiff, and must be brought within four (4) years. (Valencia v. Cebu Portland Cement, et al., 106 Phils. 732, 735 [1959]) [see

BQ

(c)

No.

Unfair

XI] labor

Bar

Examinations.

practice

(1%)

SUGGESTED (b)Assuming that on appeal, the National Labor Relations Commission (NLRC) upholds the decision of the LA, where, how, and within what time frame should ABC, Inc. assail the NLRC ruling? (2%) SUGGESTED

(1%)

ANSWER:

All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from accrual of such unfair labor practice; otherwise, they shall be forever barred. (Article 305 [290], Labor Code)

ANSWER:

The decision of the NLRC can be assailed to the Court of Appeals by petition for certiorari under Rule 65 of the Rules of Court and within sixty (60) days from receipt of the resolution denying the motion for reconsideration.

NOTE: The foregoing answer can be found in page 934 of the book entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This is the first time that the prescription of ULP was asked. (d)

NOTE: The foregoing answer can be found in pages 154 to 158 of the book entitled Principles and Cases Labor Relations, Second Edition 2018, by Atty. Voltaire T. Duano. This is the first time that

Offenses

SUGGESTED

under

the

Labor

Code

(1%) ANSWER:

Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years. (Article 305 [290], Labor Code)

B.11. Briefly discuss the powers and responsibilities of the following in the scheme of the Labor Code: (a) Secretary of Labor (2%) SUGGESTED ANSWER: The following are the Secretary of Labor’s powers and responsibilities of the following in the scheme of the Labor Code: 1. Article 35 concurrent jurisdiction to suspend and/cancellation of license or authority to recruit; 2. Article 36 Regulatory power to restrict and regulate the recruitment and placement activities of all agencies; 3. Article 37 Visitorial power to inspect the premises, books of accounts and records of any person or entity under the tile of recruitment and placement, to require the submission of reports and act on violation of the title on recruitment and placement; 4. Article 66 Appeal of the decision of the authorized agency of DOLE for violation of apprenticeship agreement; 5. Article 128 Visitorial and enforcement power; 6. Article 231 Contempt powers; 7. Article 278 (g) Assumption of jurisdiction over disputes involving industries indispensable to national interest; 8. Article 289 Visitorial power 9. Article 292 (b) Power to suspend the effects of termination NOTE: The foregoing answer can be found in pages 178,237, 240, 336, 644-647 of the book entitled Principles and Cases Labor Standards and Social Legislations, Second Edition 2018, by Atty. Voltaire T. Duano and pages 167, 475, 562 and 572 of the book entitled Principles and Cases Labor Relations, Second Edition 2018. Similar questions were asked during the 2012 on Art. 35, 2011 on Art. 36, 2011, 2008 and 1993 on Art. 128, 2015, 2010 and 2008 on Art. 278 (g) Bar Exams, 2001 and 1999 on Art. 289, and 2010, 1998 and 1994 on Art. 292 (b) Bar Examinations. (b) Bureau of Labor Relations (2%) SUGGESTED ANSWER: The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on: a. All inter-union and intra-union conflicts; and b. All disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, whether agricultural or non-agricultural. (Article 232 [226], Labor Code) The jurisdiction of the Bureau of Labor Relations, in so far as inter/intra union and registration related cases, are as follows:

1. Inter/intra union disputes included under Section 1 (A), Rule XI, Book V, Rules to Implement the Labor Code — Complaints or petitions involving federations, national or industry unions, trade union centers and their chartered locals, affiliates or members organizations shall be filed either with the Regional Office or the Bureau. The complaint or petition shall be heard and resolved by the Bureau (Fourth paragraph, Section 4, Rule XI, Book V, Rules to Implement the Labor Code); 2. Disputes over conduct of election of officers — In the case of federations, national or industry unions, trade union centers, the petition shall be filed with the Bureau or the Regional Office but shall be heard by the Bureau (Second paragraph, Section 2, Rule XII, Book V, Rules to Implement the Labor Code); 3. Visitorial power under Article 289 of the Labor Code — A request for examination of books of accounts of federations or national and trade union centers pursuant to Article 289 [274] shall be filed with the Bureau. Such request or complaint, in the absence of allegations pertaining to a violation of Article 250 [241] shall not be treated as an intraunion dispute and the appointment of an Audit Examination by the Regional or Bureau Director shall not be appealable (Second paragraph, Section 3, Rule XIII, Book V, Rules to Implement the Labor Code). 4. Registration of labor organizations: a. Application for registration — Applications for registration of federations, national unions or workers’ association operating in more than one region shall be filed with the Bureau of the Regional Offices, but shall be processed by the Bureau in accordance with Sections 2-B and 2-D of this Rule (Second paragraph, Section 1, Rule III, Book V, Rules to Implement the Labor Code); b. Notice of Merger/Consolidation of Labor Organizations — Notice of merger or consolidation of federations or national unions shall be filed with and recorded by the Bureau (Second sentence, Section 8, Rule III, Book V, Rules to Implement the Labor Code); c. Action on application either by approving or denying it (Sections 4 and 5, Rule IV, Rules to Implement the Labor Code); d. Cancellation of Registration - Complaints or petitions involving federations, national or industry unions, trade union centers and their chartered locals, affiliates or member organizations shall be filed either with the Regional Office or the Bureau. The complaint or petition shall be heard and resolved by the Bureau (Fourth paragraph, Section 4, Rule XI, Book V, Rules to Implement the Labor Code). In case of federations, national or industry unions and trade union centers, the Bureau Director may cancel the registration upon the filing of a petition for cancellation or application for voluntary dissolution in the Bureau of Labor Relations. (Third paragraph, Section 1, Rule XIV, Book V, Rules to Implement the Labor Code). 5. Registration/deregistration of CBA a. Registration of CBA for Multi-employer — Multi-employer collective bargaining agreement shall be filed with the Bureau (Second paragraph, Section 1, Rule XVII, Book V, Rules to Implement the Labor Code); b. Action on application either by approving or denying it (Sections 4 and 5, Rule XVII, Book V, Rules to Implement the Labor Code); c. Deregistration of CBA for multi-employer under Section 4, Rule XI, Book V, Rules to Implement the Labor Code where the complaints or petitions involving federations, national or industry unions, trade union centers and their chartered locals, affiliates or member

organizations shall be filed either with the Regional Office or the Bureau. The complaint or petition shall be heard and resolved by the Bureau.

president; (2) secretary; (3) treasurer; and (4) such other officers as may be provided for in the by-laws. (Easycall Communications Phils., Inc. v. King, supra at 302)

(c) Voluntary Arbitrators (2%)

The facts is clear, as alleged in the motion to dismiss, that Mr. X’s position as Vice-President for External Affairs was listed in the by-laws of the corporation. Therefore, Mr. X is not a mere employee or subordinate. His termination is an intra-corporate controversy and not a termination dispute under the Labor Code.

SUGGESTED ANSWER: The voluntary arbitrator or panel of voluntary arbitrators shall have exclusive and original jurisdiction to hear and decide all unresolved grievances arising from: 1. The implementation or interpretation of the collective bargaining agreements; (Article 274 [261], Labor Code, Section 4, Rule XIX, Book V, Rules to Implement the Labor Code) 2. The interpretation or enforcement of company personnel policies which remain unresolved after exhaustion of the grievance procedure; (Article 274 [261], Labor Code, Section 4, Rule XIX, Book V, Rules to Implement the Labor Code) 3. Wage distortion issues arising from the application of any wage orders in organized establishments; (par. 4, Article 124, Labor Code, Section 4, Rule XIX, Book V, Rules to Implement the Labor Code) 4. The interpretation and implementation of the productivity incentive programs under RA 6971. 5. Upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. (Article 275, [262], Labor Code, Section 4, Rule XIX, Book V, Rules to Implement the Labor Code) 6. Violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement; (Article 274, [261], Labor Code) B.12. Due to serious business reverses, ABC Co. decided to terminate the services of several officers receiving “fat” compensation packages. One of these officers was Mr. X, its Vice-President for External Affairs and a member of the Board of Directors. Aggrieved, Mr. X filed a complaint for illegal dismissal before the National Labor Relations Commission (NLRC) — Regional Arbitration Branch. ABC Co. moved for the dismissal of the case on the ground of lack of jurisdiction, asserting that since Mr. X occupied the position of Vice-President for External Affairs which is listed in the by-laws of the corporation, the case should have been filed before the Regional Trial Court. The Labor Arbiter (LA) denied ABC Co.’s motion and proceeded to rule that Mr. X was illegally dismissed. Hence, he was reinstated in ABC Co.’s payroll pending its appeal to the NLRC. (a) Did the LA err in denying ABC Co.’s motion to dismiss on the ground of lack of jurisdiction? Explain. (2.5%)

(b)Assuming that jurisdiction is not at issue and that the NLRC reverses the LA’s ruling of illegal dismissal with finality, may ABC Co. claim reimbursement for the amounts it paid to Mr. X during the time that he was on payroll reinstatement pending appeal? Explain. (2.5%) SUGGESTED ANSWER: ABC Co. cannot claim reimbursement for the amounts it paid to Mr. X during the latter’s payroll reinstatement pending appeal. The reimbursement referred in the problem refers to the refund doctrine enunciated in Genuino v. National Labor Relations Commission, G.R. Nos. 142732-33 & 142753-54, December 4, 2007 which provides that if the decision of the labor arbiter is later reversed on appeal upon the finding that the ground for dismissal is valid, then the employer has the right to require the dismissed employee on payroll reinstatement to refund the salaries s/he received while the case was pending appeal, or it can be deducted from the accrued benefits that the dismissed employee was entitled to receive from his/her employer under existing laws, collective bargaining agreement provisions, and company practices. However, this doctrine was already modified in Garcia v. Philippine Airlines, Inc., G.R. No. 164856, January 20, 2009, 576 SCRA 479, where it was ruled that the social justice principles of labor law outweigh or render inapplicable the civil law doctrine of unjust enrichment. Applying the above ruling, ABC Co. cannot claim reimbursement of the wages paid during Mr. X’S payroll reinstatement. B.13. Mr. A signed a one (1)-year contract with XYZ Recruitment Co. for deployment as welding supervisor for DEF, Inc. located in Dubai. The employment contract, which the Philippine Overseas Employment Administration (POEA) approved, stipulated a salary of US$600.00 a month. Mr. A had only been in his job in Dubai for six (6) when DEF, Inc. announced that it was suffering from severe financial losses and thus intended to retrench some of its workers, among them Mr. A. DEF, Inc. hinted, however, that employees who would accept a lower salary could be retained.

SUGGESTED ANSWER:

Together with some other Filipino workers, Mr. A agreed to a reduced salary of US$400.00 a month and thus, continued with his employment.

The LA erred in denying ABC Co.’s motion to dismiss.

(a) Was the reduction of Mr. A’s salary valid? Explain. (2.5%)

By established ruling in Marc II Marketing Inc. v. Joson, G.R. No. 171993, December 12, 2011 citing Easycall Communications Phils., Inc. v. King, the Supreme Court ruled that in the context of Presidential Decree No. 902-A, corporate officers are those officers of a corporation who are given that character either by the Corporation Code or by the corporations by-laws. Section 25 of the Corporation Code specifically enumerated who are these corporate officers, to wit: (1)

SUGGESTED ANSWER: The reduction of A’s salary is not valid. This is a clear violation of Section 6(h) which prohibits the substitution or alteration to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by

the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;

(b) Did a wage distortion arise under the circumstances which legally obligated K Corporation to rectify the wages of its old employees? Explain. (3%)

The fact that the salary of Mr. A was reduced from US$600.00 a month to US$400.00 a month without the approval of the Department of Labor and Employment is a substitution or alteration of the one (1)-year contract with XYZ Recruitment Co.. The act also constitute illegal recruitment.

SUGGESTED ANSWER:

(b) Assuming that the reduction was invalid, may Mr. A hold XYZ Recruitment Co, liable for underpayment of wages? Explain. (2.5%) SUGGESTED ANSWER: Yes, Mr. A can hold XYZ Recruitment Co, liable for underpayment of wages on the basis of its solidary liability under the Migrant Worker’s overseas Filipino Act of 1995. Section 10 of Republic Act No. 8042 as amended is clear that the liability of the principal/employer and the recruitment/placement agency for any and all money shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. In fact such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. XYZ Recruitment Co is therefore liable for underpayment of wages. B.14. Upon review of the wage rate and structure pertaining to its regular rank and file employees, K Corporation found it necessary to increase its hiring rates for belonging to the different job classification levels to make their salary rates more competitive in the labor market. After the implementation of the new hiring salary, Union X, the exclusive bargaining agent of the rank and file employees, demanded a similar salary adjustment for the old employees. It argued that the increase in hiring rates resulted in wage distortion since it erased the wage gap between the new and old employees. In other words, new employees would enjoy almost the same salary rates as K Corporation’s old employees. (a) What is wage distortion? (2%) SUGGESTED ANSWER: A wage distortion shall mean a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. (seventh paragraph, Article 124, as amended by Republic Act No. 6727, June 9, 1989) Otherwise stated, wage distortion means the disappearance or virtual disappearance of pay differentials between lower and higher positions in an enterprise because of compliance with a wage order. (P.I. Manufacturing, Incorporated vs. P.I. Manufacturing Supervisors and Foremen Association, G.R. No. 167217, February 4, 2008)

No, there was no wage distortion. The provisions of the Labor Code (see Article 124 par. 4) is clear that distortions of the wage structure within an establishment is a result of the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board. It was likewise ruled in Associated Labor Unions-TUCP v. National Labor Relations Commission G.R. No. 109328, August 16, 1994, it was ruled that in case of salary adjustments in terms of restructuring of benefits and allowances by employer or increase pursuant to CBA there is no wage distortion. Thus in Cardona v. NLRC, G.R. No. 89007, March 11, 1991, 195 SCRA 92, 97, it was held that there was no wage distortion where the employer made salary adjustments in terms of restructuring of benefits and allowances and there was an increase pursuant to the CBA. In the given facts, it is clear that the distortion was a result of K Corporation’s increasing its hiring rates of those belonging to the different job classification levels to make their salary rates more competitive in the labor market. Thus, wage distortion did not arise under the circumstances. NOTE: The foregoing answer can be found in pages 626 and 635 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018 by Atty. Voltaire T. Duano. B.15. On December 1, 2018, GHI Co., an organized establishment, and Union J, the exclusive bargaining agent therein, executed a five (5)-year collective bargaining agreement (CBA) which, after ratification, was registered with the Bureau of Labor Relations. (a)When can the union ask, at the earliest, for the renegotiation of all the terms of the CBA, except its representation aspect? Explain. (2.5%) SUGGESTED ANSWER: The period to renegotiate “all other provisions” of the Collective Bargaining Agreement under the Labor Code provides that all other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. (Article 265 [253-A], Labor Code, as amended by Section 21, Republic Act No. 6715, March 21, 1989) The union can therefore ask, at the earliest, for the renegotiation of all the terms of the CBA between GHI Co. and Union J, not alter than three (3) years after its execution on December 1, 2018 or on December 1, 2021. (b)When is the earliest time that another union can file for a petition for certification election? Explain. (2.5%) SUGGESTED ANSWER: Under Article 268 of the Labor Code, a petition for certification election can be filed within the sixty (60)-day period before the expiration of the collective bargaining agreement. Thus, the earliest time that another union can file for a petition for certification election is within the sixty (60)-day period before the expiration of the five (5) year period of the collective bargaining agreement between GHI Co., an organized establishment, and Union J.

B.16. W Ship Management, Inc. hired Seafarer G as bosun in its vessel under the terms of the 2010 Philippine Overseas Employment Administration - Standard Employment Contract (POEASEC). On his sixth (6th) month on board, Seafarer G fell ill while working. In particular, he complained of stomach pain, general weakness, and fresh blood in his stool. When his illness persisted, he was medically repatriated on January 15, 201 8. On the same day, Seafarer G submitted himself to a post-employment medical examination, wherein he was referred for further treatment. As of September 30, 2018, Seafarer G has yet to be issued any fit-to-work certification by the companydesignated physician, much less a final and definitive assessment of his actual condition. Since Seafarer G still felt unwell, he sought an opinion from a doctor of his choice who later issued an independent assessment stating that he was totally and permanently disabled due to his illness sustained during work. On his sixth (6) month on board, Seafarer G fell ill while working. In particular, he complained of stomach pain, general weakness, and fresh blood in his stool. When his illness persisted, he was medically repatriated on January 15, 2018. On the same day, Seafarer G submitted himself to a post –employment medical examination, wherein he was referred for further treatment. As of September 30, 2018, Seafarer G has yet to be issued any fit-to-work certification by the company-designated physician, much less a final and definitive assessment of his actual condition. Since Seafarer G still felt unwell, he sought an opinion from a doctor of his choice who alter issued an independent assessment stating that he was totally and permanently disabled due to his illness sustained during work. Seafarer G then proceeded to file a claim for total and permanent disability compensation. The company asserts that the claim should be dismissed due to prematurity since Seafarer G failed to first settle the matter through the third-doctor conflict resolution procedure as provided under the 2010 POEA-SEC. (a) What is the third-doctor conflict resolution procedure under the 2010 POEASEC? Explain. (2%) SUGGESTED ANSWERS: The Supreme Court laid down the procedure for the the third-doctor conflict resolution under the 2010 POEA-SEC in Daraug v. KGJS Fleet Management Manila, G.R. No. 211211, January 14, 2015, citing Vergara v. Hammonia Maritime Services, Inc.31 (Vergara), where it was stated that upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days. For this purpose, the seafarer shall submit himself to a postemployment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to so, in which case, a written notice to the agency within the same period is deemed a compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.

NOTE: The foregoing answer can be found in pages 917-918 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018 by Atty. Voltaire T. Duano. A similar question was asked last 2013 Bar Examinations. (b) Will Seafarer G’s claim for total and permanent disability benefits prosper despite his failure to first settle the matter through the third-doctor conflict resolution procedure? Explain. (3%) SUGGESTED ANSWERS: No, Seafarer G’s claim for total and permanent disability benefits will not prospe. In Philippine Hammonia Ship Agency, Inc. v. Dumadag, G.R. No. 194362, June 26, 2013, 700 SCRA 53 (Dumagdag), it was ruled by the Supreme Court that the seafarer’s non-compliance with the mandated procedure under the POEA-SEC militates against his claims. In Dumagdag, the High Court explained: The POEA-SEC and the CBA govern the employment relationship between Dumadag and the petitioners. The two instruments are the law between them. They are bound by their terms and conditions, particularly in relation to this case, the mechanism prescribed to determine liability for a disability benefits claim. In Magsaysay Maritime Corp. v. Velasquez, the Court said: “The POEA Contract, of which the parties are both signatories, is the law between them and as such, its provisions bind both of them.” Dumadag, however, pursued his claim without observing the laid-out procedure. He consulted physicians of his choice regarding his disability after Dr. Dacanay, the company-designated physician, issued his fit-to-work certification for him. There is nothing inherently wrong with the consultations as the POEA-SEC and the CBA allow him to seek a second opinion. The problem only arose when he pre-empted the mandated procedure by filing a complaint for permanent disability compensation on the strength of his chosen physicians’ opinions, without referring the conflicting opinions to a third doctor for final determination. On the basis of the above-doctrinal rule, Seafarer G’s claim for total and permanent disability benefits will not prosper. (c) Assuming that Seafarer G failed to submit himself to a post-employment medical examination within three (3) working days from his return, what is the consequence thereof to his disability claim? Explain. (2%) SUGGESTED ANSWERS: Seafarer G’S failure to submit himself to a post-employment medical examination within three (3) working days from his return shall result in his forfeiture of the right to claim his disability compensation. This was ruled upon by the Supreme Court in Daraug v. KGJS Fleet Management Manila, G.R. No. 211211, January 14, 2015 citing Vergara v. Hammonia Maritime Services, Inc., that failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the disability compensation. NOTE: The foregoing answer can be found in pages 917-918 of the book entitled Principles and Cases Labor Standards and Social Legislation, Second Edition 2018 by Atty. Voltaire T. Duano. A similar question was asked last 2013 Bar Examinations. B.17.

Ms. A is a volleyball coach with five (5) years of experience in her field. Before the start of the volleyball season of 2015, she was hired for the sole purpose of overseeing the training and coaching of the University’s volleyball team. During her hiring, the Vice-President for Sports expressed to Ms. A the University’s expectation that she would bring the University a championship at the end of the year. In her first volleyball season, the University placed ninth (9th) out of 10 participating teams. Soon after the end of the season, the Vice-President for Sports informed Ms. A that she was a mere probationary employee and hence, she need not come back for the next season because of the poor performance of the team. In any case, the Vice-President for Sports claimed that Ms. A was a fixed-term employee whose contract had ended at the close of the year. (a) Is Ms. A a probationary, fixed-term, or regular employee? Explain your reasons as to why she is or she is not such kind of an employee for each of the types of employment given. (5%) SUGGESTED ANSWERS: Ms. A is a probationary employee. There is probationary employment 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. (Robinsons Galleria/Robinsons Supermarket Corporation and/or Jess Manuel v. Ranchez, G.R. No. 177937, January 19, 2011, 640 SCRA 142, citing Omnibus Rules Implementing the Labor Code, Book VI, Rule I, Sec. 6 [d]) In Abbott Laboratories Philippines v. Alcaraz, G.R. 192571, July 23, 2013, it was ruled that the employer is made to comply with two (2) requirements when dealing with a probationary employee: first, the employer must communicate the regularization standards to the probationary employee; and second, the employer must make such communication at the time of the probationary employee’s engagement. If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee. Keeping with these rules, an employer is deemed to have made known the standards that would qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to apprise the employee of what he is expected to do or accomplish during the trial period of probation. This goes without saying that the employee is sufficiently made aware of his probationary status as well as the length of time of the probation. The facts of the given problem is clear that during Ms. A's hiring, the Vice-President for Sports expressed to her the University’s expectation that she would bring the University a championship at the end of the year. Thus, Ms.. A is a probationary employee. ALTERNATIVE ANSWER: Ms. A is not a probationary, fixed-term, or regular employee. This is because her engagement cannot be characterized as either a probationary, fixed-term, or regular employee as defined by law or jurisprudence. There is probationary employment 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. (Robinsons Galleria/Robinsons Supermarket Corporation and/or Jess Manuel v. Ranchez, G.R. No. 177937, January 19, 2011, 640 SCRA 142, citing Omnibus Rules Implementing the Labor Code, Book VI, Rule I, Sec. 6 [d])

Regular employees are further classified into: (1) regular employees by nature of work; and (2) regular employees by years of service. (E. Ganzon, Inc. vs. National Labor Relations Commission, G.R. No. 123769, 22 December 1999, 321 SCRA 434, 440) The former refers to those employees who perform a particular activity which is necessary or desirable in the usual business or trade of the employer, regardless of their length of service; while the latter refers to those employees who have been performing the job, regardless of the nature thereof, for at least a year. (Pangilinan vs. General Milling Corporation, G.R. No. 149329, 12 July 2004) In E. Ganzon, Inc. (EGI) v. Ando, Jr., G.R. No. 214183, February 20, 2017, the fixed-term employment was explained as follows: The duration of a fixed-term employment agreed upon by the parties may be any day certain, which is understood to be “that which must necessarily come although it may not be known when.” The decisive determinant in fixed-term employment is not the activity that the employee is called upon to perform but the day certain agreed upon by the parties for the commencement and termination of the employment relationship. (GMA Network, Inc. v. Pabriga, et al., supra note 24, at 177-178. [Citations omitted]) Ms. A is a casual employee. Casual employment, the third kind of employment arrangement, refers to any other employment arrangement that does not fall under any of the first two categories, i.e., regular or project/seasonal. (Universal Robina Sugar Milling Corporation v. Acibo, G.R. No. 186439, January 15, 2014) NOTE: The first suggested answer can be found in pages 725, 727-728 of the book entitled Principles and Cases Labor Relations, Second Edition 2018 by Atty. Voltaire T. Duano. While the alternative answer can be found in pages 725, 676, 692-693 and 707 of the book entitled Principles and Cases Labor Relations, Second Edition 2018 by Atty. Voltaire T. Duano. (b) Assuming that Ms. A was dismissed by the University for serious misconduct but was never given a notice to explain, what is the consequence of a procedurally infirm dismissal from service under our Labor law and jurisprudence? Explain. (2%) SUGGESTED ANSWERS: In Agabon v. NLRC, G.R. No. 158693, November 17, 2004, the Supreme Court ruled that where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights. The Supreme Court imposed the nominal damages in the amount of P30,000.00 considering the prevailing circumstances in the said case. Clearly, the procedural infirmity will not render defective Ms. A’s dismissal. The dismissal based on just cause is valid while the employer is liable for nominal damages. B.18. When resolving a case of unfair labor practice (ULP) filed by a union, what should be the critical point of analysis to determine if an act constitutes ULP? (2.5%) SUGGESTED ANSWER: While an act or decision of an employer may be unfair, certainly not every unfair act or decision constitutes unfair labor practice (ULP) as defined and enumerated under Art. 248 of the Labor Code. (Great Pacific Life Employees Union v. Great Pacific Life Assurance Corporation, G.R. No. 126717, February 11, 1999) In Baptista v. Villanueva, G.R. No. 194709, July 31, 2013 it was ruled:

In essence, ULP relates to the commission of acts that transgress the workers’ right to organize. As specified in Articles 248 and 249 of the Labor Code, the prohibited acts must necessarily relate to the workers’ right to self-organization and to the observance of a CBA. (Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. Asia Brewery, Inc., G.R. No. 162025, August 3, 2010, 626 SCRA 376, 388) Absent the said vital elements, the acts complained, although seemingly unjust, would not constitute ULP. (General Santos Coca-Cola Plant Free Workers Union-Tupas v. CocaCola Bottlers Phils., Inc. (General Santos City), G.R. No. 178647, February 13, 2009, 579 SCRA 414, 419, citing Philcom Employees Union v. Philippine Global Communication, 527 Phil. 540, 557; 495 SCRA 214, 229 [2006]) B.19. Because of dwindling sales and the consequent limitation of production, rumors were rife that XYZ, Inc. would reduce its employee force. The next day, the employees of XYZ, Inc. received a notice that the company will have a winding down period of 10 days, after which there will be a six (6)-month suspension of operations to allow the company to address its precarious financial position. On the fourth (4) month of suspension of its operations, XYZ, Inc. posted an announcement that it will resume its operations in 60 days but at the same time announced that instead of closing down due to financial losses, it will retrench 50% of the work force. (a) Is the announcement that there would be retrenchment affecting 50% of the work force sufficient compliance with the legal requirements for retrenchment? Explain. (2.5%) SUGGESTED ANSWERS: The posting of the announcement is not sufficient compliance with the legal requirements for retrenchment. In explaining that the posting of written notice of closure on the bulletin board did not meet the requirement, Supreme Court in Galaxie Steel Workers Union (GSWU-NAFLU-KMU) v. NLRC, G.R. No. 165757, October 17, 2006 said:

The extended suspension of its operations from six (6) months to eight (8) months is not permissible. The Supreme Court agreed with the contention of the petitioners in Nasipit Lumber Company v. National Organization of Workingmen (NOWM), G.R. No. 146225, November 25, 2004 that under Article 286 of the Labor Code, an employer may bona fide suspend the operation of its business for a period of not exceeding six (6) months. In such a case, there is no termination of the employment of the employees, but only a temporary displacement. When the suspension of the business operations exceeds six (6) months, then the employment of the employees would be deemed terminated. On the other hand, if the operation of the business is resumed within six (6) months from the bona fide suspension thereof, it shall be the duty of the employer to reinstate his employees to their former positions without loss of seniority rights, if the latter would indicate their desire to resume work within one (1) month from such resumption of operations, conformably to Article 286 of the Labor Code xxx. Thus, with the extension the employees were deemed terminated. The employer is therefore liable for illegal dismissal and as a consequence the dismissed employees are entitled to the reliefs of backwages and reinstatement. B.20. Discuss the differences between compulsory and voluntary/optional retirement as well as the minimum benefits provided under the Labor Code for retiring employees of private establishments. (2.5%) SUGGESTED ANSWERS: The differences between compulsory and voluntary/optional retirement as well as the minimum benefits provided under the Labor Code are as follows: For compulsory retirement — Where there is no such plan or agreement referred to in the immediately preceding sub-section, an employee shall be retired upon reaching the age of sixty (65) five years old. (Rule II, Section 4, sub-section 4.2, Rules Implementing the Retirement Law, April 1, 1993)

Finally, with regard to the notice requirement, the Labor Arbiter found, and it was upheld by the NLRC and the Court of Appeals, that the written notice of closure or cessation of Galaxies business operations was posted on the company bulletin board one month prior to its effectivity. The mere posting on the company bulletin board does not, however, meet the requirement under Article 283 of serving a written notice on the workers. The purpose of the written notice is to inform the employees of the specific date of termination or closure of business operations, and must be served upon them at least one month before the date of effectivity to give them sufficient time to make the necessary arrangements. (DAP Corporation v. Court of Appeals, G.R. No. 165811, December 14, 2005, 477 SCRA 792) In order to meet the foregoing purpose, service of the written notice must be made individually upon each and every employee of the company.

For underground mineworkers — An underground mining employee upon reaching the age of fifty (50) years or more, but not beyond sixty (60) years which is hereby declared the compulsory retirement age for underground mine workers, who has served at least five (5) years as underground mine worker, may retire and shall be entitled to all the retirement benefits provided for in this Article. (5th paragraph, Article 302 [287], Labor Code)

The posting of the announcement is not in compliance with the provision of the Labor Code on serving notice to the employees to be retrenched.

As to minimum benefits, in the absence of an applicable agreement or retirement plan, an employee who retires pursuant to the Act shall be entitled to retirement pay equivalent to at least one-half (½) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. (Rule II, Section 5, sub-section 5.1, Rules Implementing the Retirement Law, April 1, 1993)

(b) Assuming that XYZ, Inc., instead of retrenchment, extended the suspension of its operations from six (6) months to eight (8) months, would the same be legally permissible? If not, what are the consequences? (2.5%) SUGGESTED ANSWERS:

For optional retirement – In the absence of a retirement plan or other applicable agreement providing for retirement benefits of employees in an establishment, an employee may retire upon reaching the age of sixty (60) years or more if he has served for at least five (5) years in said establishment. (Rule II, Section 4, sub-section 4.1, Rules Implementing the Retirement Law, April 1, 1993)