Documente Academic
Documente Profesional
Documente Cultură
INSTITUTE OF LAW
LABOR LAW
MOCK BAR 2015
I.
Krizzy Abunda was employed by Chena College as a grade school
teacher. She was found guilty of leaking a copy of a quiz given to
Grade 5 students. As a result, the school terminated her
employment. Abunda then pleaded that she instead be
suspended and allowed to finish the school year and thereafter
she will voluntarily resign. The school acceded to her request.
After the school year, however, the respondent filed a case of
illegal dismissal against the school. She argues that the situation
she was put through amounts to constructive dismissal. More so
that under Chena College Faculty Manual, leaking and selling of
test questions is classified as a grave offense punishable by
dismissal/termination. The school gave due investigation and the
respondent was given a chance to defend herself, hence her
termination is proper. Was Abunda constructively dismissed?
SUGGESTED ANSWER:
No, Abunda was not constructively dismissed.
The Supreme Court held that academic dishonesty is the worst
offense a teacher can make because teachers caught committing
academic dishonesty lose their credibility as educators and cease
to be role models for their students. The school should not be
punished for being compassionate and granting respondents
request for a lower penalty. (CHIANG KAI SHEK COLLEGE and
CARMELITA ESPINO vs. ROSALINDA M. TORRES, G.R. No.
189456, April 2, 2014, J. Perez)
II.
Distinguish
the
arbitration.
terms
conciliation,
mediation
and
SUGGESTED ANSWER:
There is a DOLE official called a Conciliator Mediator. He is
an officer of the NCMB whose principal function is to assist in the
settlement and disposition of labor - management disputes
through conciliation and preventive mediation. However, he does
not promulgate decisions that settle controversies about rights,
which are demandable and enforceable. The latter is called
arbitration and is the function of a labor arbiter or a voluntary
arbitrator.
ALTERNATIVE ANSWER:
CONCILIATION is the process of dispute management whereby
parties in dispute are brought together for the purpose of: (1)
amicably settling the case upon a fair compromise; (2)
determining the real parties in interest; (3) defining and
simplifying the issues in the case; (4) entering into admissions or
stipulations of facts; and (5) threshing out all other preliminary
matters (Section 3, Rule V, 2005 NLRC Rules of Procedure).
In resolving labor disputes, this comes before arbitration, as a
mandatory process, pursuant to the State policy of promoting
and emphasizing conciliation as modes of settling labor disputes
(Art. 211 (A)(a), Labor Code).
MEDIATION is a voluntary process of settling dispute whereby the
parties elect a mediator to facilitate the communication and
negotiation between the parties in dispute for the purpose of
assisting them in reaching a compromise (Sec. 3(q), Rep. Act
No. 9285 or the Alternative Dispute Resolution Law).
ARBITRATION is a system of dispute settlement that may be
compulsory or voluntary, whereby the parties are compelled by.
the government, or agree to submit their dispute before an
arbiter, with the intention to accept the resolution of said arbiter
over the dispute as final and binding on them (Luzon
Development Bank v. Association of Luzon Development
Employees, 249 SCRA 162 [1995]).
SUGGESTED ANSWER:
The company policy is valid. However, it does not apply to
Dingdong. As Dingdong and Maryan are not yet married, no
relationship by consanguinity or affinity exists between them. The
case of Duncan v. Glaxo Wellcome (438 SCRA 343 [2004]) does
not apply in the present case. (2010 BAR EXAM, Q#9)
V.
What are the requisites of a Valid Apprenticeship?
SUGGESTED ANSWER:
1. The qualifications of apprenticeship are met;
2. The apprenticeship earns not less than 75% of the
prescribed minimum salary;
3. Apprenticeship agreement duly executed and signed;
4. Apprenticeship program duly approved by the Secretary of
Labor; otherwise, the apprentice shall be deemed as a
regular employee;
5. Period of apprenticeship not to exceed 6 months.
VI.
Discuss the Limited Portability Rule.
SUGGESTED ANSWER:
A covered worker who transfers employment from one sector to
another (i.e. from SSS to GSIS) or is employed on both sectors,
shall have a creditable services or contributions on both Systems
credited to his service or contribution record in each of the
Systems and shall be totalized for purposes of old-age,
disability, survivorship and other benefits in either or both
Systems. (Sec. 3, RA 7699)
However, Dumbo had already been employed for two (2) years
before the airline company imposed on him this weight
regulation, and nary an incident did the airline company raise
which rendered her amiss of his duties. (2010 BAR EXAMS,
Q#18)
IX.
Bentong worked as a roomboy in Shalala Hotel. He sued for
underpayment of wages before the NLRC, alleging that he was
paid below the minimum wage. The employer denied any
underpayment, arguing that based on long standing, unwritten
policy, the Hotel provided food and lodging to its housekeeping
employees, the costs of which were partly shouldered by it and
the balance was charged to the employees. The employees
corresponding share in the costs was thus deducted from their
wages. The employer concluded that such valid deduction
naturally resulted in the payment of wages below the prescribed
minimum. If you were the Labor Arbiter, how would you rule?
Explain.
SUGGESTED ANSWER:
I will rule in favor of Bentong. Even if food and lodging were
provided and considered as facilities by the employer, the
employer could not deduct such facilities from its workers wages
without compliance with law (Mayon Hotel & Restaurant v.
Adana, 458 SCRA 609 [2005]).
In Mabeza v. NLRC (271 SCRA 670 [1997]), the Supreme
Court held that the employer simply cannot deduct the value from
the employees wages without satisfying the following: (a) proof
that such facilities are customarily furnished by the trade; (b) the
provision of deductible facilities is voluntarily accepted in writing
by the employee; and (c) the facilities are charged at fair and
reasonable value. (2010 BAR EXAM, Q#23)
X.
Atty. Valdemort, a CPA-lawyer and Managing Partner of an
accounting firm, conducted the orientation seminar for newlyhired employees of the firm, among them, Miss Kiray. After the
seminar, Valdemort requested Kiray to stay, purportedly to
discuss some work assignment. Left alone in the training room,
Valdemort asked Kiray to go out with him for dinner and ballroom
dancing. Thereafter, he persuaded her to accompany him to the
mountain highway in Antipolo for sight-seeing. During all these,
Valdemort told Kiray that most, if not all, of the lady supervisors in
the firm are where they are now, in very productive and lucrative
posts, because of his favorable endorsement.
Did Valdemort commit acts of sexual harassment in a workrelated or employment environment? Reasons. (3%)
SUGGESTED ANSWER:
Yes, Atty. Valdemort is guilty of sexual harassment.
conclusion is predicated upon the following consideration:
This
hours start at 8 a.m. and end at 5 p.m. On July 30, 2008, at 7 a.m.
while waiting for public transport at Rizal Avenue Extension as has
been her routine, she was sideswiped by a speeding taxicab
resulting in her death. The father of Bea filed a claim for
employees compensation with the Social Security System. Will
the claim prosper? Why? (
SUGGESTED ANSWER:
Yes, the claim will prosper.
In a line of cases, it has been held that an injury sustained by the
employee while on his way to or from his place of work, and which
is otherwise compensable, is deemed to have arisen out of and in
the course of his employment (Lentejas v. Employees
Compensation Commission, 197SCRA 44[1991]).
Bea died while going to her place of work. As held in the case of
Alano v. Employees Compensation Commission (158 SCRA
669(1988]), she was at the place where her job necessarily
required her to be if she was to reach her place of work on time.
There was nothing private or personal about Beas place being at
the place of the accident. She was there because her employment
required her to be there.
ANOTHER SUGGESTED ANSWER:
The claim will not prosper as a claim for employees
compensation will prosper only in the event of work- connected
disability or death and the death of Bea Binaenae will be
considered as work connected only if it was because of any
accident arising out of and in the course of employment. This
was not the case of Bea Binaenae. She was not yet working when
the accident that caused her death took place. (2008 BAR
EXAM, Q#8)
XIII.
XV.
Discuss the legal requirements of a valid strike.
SUGGESTED ANSWER:
The legal requirements of a valid strike are as follows:
1. No labor union may strike on grounds involving inter-union
and intra-union disputes.
2. In cases of bargaining deadlocks, the duly certified or
recognized bargaining agent may file a notice of strike with
the Department of Labor and Employment at least 30 days
before the intended date thereof. In cases of unfair labor
practice, the period of notice shall be 15 days and in the
absence of a duly certified or recognized bargaining agent,
the notice of strike may be filed by any legitimate labor
organization in behalf of its members. However, in case of
dismissal from employment of union officers duly elected in
accordance with the union constitution and by-laws, which
may constitute union busting where the existence of the
union is threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.
3. A decision to declare a strike must be approved by a
majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot in meetings or
referenda called for that purpose.
4. In every case, the union shall furnish the Department of
Labor and Employment the voting at least seven days before
the intended strike subject to the cooling-off period herein
provided.
5. No labor organization shall declare a strike without first
having bargained collectively; without first having filed the
notice required or without the necessary strike vote first
having been obtained and reported to the Department of
Labor and Employment.
6. No strike shall be declared after assumption of jurisdiction by
the President or the Secretary or after certification or
submission of the dispute to compulsory or voluntary
strike vote is taken; and (3) the strike vote results must be
furnished to the NCMB at least 7 days before the intended
strike. The dismissal of a duly elected officer excuses,
however, the union from the 15/30 days cooling off
requirement in Art. 263 (c) of the Labor Code. (2007 BAR
EXAM, Q#9)
XVI.
When is there a wage distortion?
SUGGESTED ANSWER:
There is wage distortion 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.
ALTERNATIVE ANSWER:
Wage distortion arises when (4) essential elements are present:
1. An existing hierarchy of positions with corresponding salary
rates;
2. A significant change or increase in the salary rate of a lower
pay class without a corresponding increase in the salary of a
higher one;
3. The elimination of the distinction between two groups or
classes; and
4. The distortion exists in the same region of the country
(Prubankers Association v. Prudential Bank and Trust Co., 302
SCRA 74 [1999]). (2006 BAR EXAM, Q#6)
XVII.
When does a "run-off election occur?
SUGGESTED ANSWER:
A run-off or second election occurs when an election which
provides for three (3) or more choices results in no choice
receiving a majority of the valid votes cast, and no objections or
challenges have been presented which, if sustained, can
materially change the results; the election officer shall motu
proprio conduct a run-off election within (10) calendar days from
the close of the election proceedings between the labor unions
receiving the (2) highest number of votes; provided that, the total
number of votes for all contending unions is at least fifty per cent
(50%) of the number of votes cast (Rule X, Dept. Order 40-03).
(2006 BAR EXAM, Q#13)
XVIII.
Cesar had been an employee of Sunshines Burger Company for
the last ten (10) years. His wife of six (6) years died last year.
They had four (4) children. He then fell in love with Sandra, his coemployee and they got married.
In October this year. Cesar's new wife is expected to give birth to
her first child. He has accordingly filed his application for paternity
leave, conformably with the provisions of the Paternity Leave Law
which took effect in 1996. The HRD manager of the assurance
firm denied his application, on the ground that Cesar had already
used up his entitlement under that law. Cesar argued that he has
a new wife who will be giving birth for the first time, therefore, his
entitlement to paternity leave benefits would begin to run anew.
1. Whose contention is correct, Cesar or the HRD manager?
SUGGESTED ANSWER:
The contention of Cesar is correct. The law provides that every
married male is entitled to a paternity leave of seven (7) days for
the first four (4) deliveries of the legitimate spouse with whom he
SUGGESTED ANSWER:
No Strike No Lockout Clause is a provision in a collective
bargaining agreement in which the union promises that during the
life of the CBA, the employees will not engage in strikes; and the
employer will not declare a lock-out. A union often agrees to such
clause in exchange for a grievance arbitration provision.
Although the Labor Code grants employees the right to strike, not
all strikes are protected. If a collective bargaining agreement
contains no strike no lock-out clause, a strike during the life of the
contract would not be protected. The strikers could be terminated.
2. When does the No Strike No Lock-out Clause applicable?
The No Strike No Lock-out Clause in the CBA applies only to
Economic Strikes; it does not apply to ULP strikes. Hence, if the
strike is founded on an unfair labor practice of the employer, a
strike declared by the union cannot be considered a violation of
no-strike clause. (Master iron Labor Union vs. NLRC, 219
SCRA 47)
XX.
Inter-Garments Co. manufactures garments for export and
requires its employees to render overtime work ranging from two
to three hours a day to meet its clients' deadlines. Since 2009, it
has been paying its employees on overtime an additional 35% of
their hourly rate for work rendered in excess of their regular eight
working hours.
Due to the slowdown of its export business in 2012, InterGarments had to reduce its overtime work; at the same time, it
adjusted the overtime rates so that those who worked overtime
were only paid an additional 25%instead of the previous 35%. To
2. Power of dismissal
3. Payment of wages and
4. The power to control the employees conduct
There was also no showing that Sergio has his own tools, or
equipment so as to qualify him as an independent contractor.
ALTERNATIVE ANSWER:
None. Lando is an independent contractor for Don Luis does not
exercise control over Landos means and method in tending to the
formers garden.
2. Does Don Luis need to register Sergiio with the Social
Security System (SSS)?
SUGGESTED ANSWER:
Yes. Coverage in the SSS shall be compulsory upon all employees
not over sixty years of age.
ALTERNATIVE ANSWER:
No. Sergio is not an employee of Don Juan Miguel. What the
parties have is a contract for a piece of work which, while allowed
by Article 1713 of the Civil Code, does not make Sergio an
employee under the Labor Code and Social Security Act. ( 2014
BAR EXAM, Q#8)
XXIV.
Distinguish between Contract Bar Rule and Deadlock Bar Rule.
SUGGESTED ANSWER:
Under the Contract Bar Rule, a certification election cannot be
held if there is in force and in effect a collective bargaining
agreement that has been duly registered with the DOLE except
during the freedom period of such CBA which is the 60-day period
to the expiry date of said CBA. (Art. 231, 253-A and 256)
SUGGESTED ANSWER:
According to the Labor Code, in any establishment where there is
no certified bargaining agent, a certification election shall
automatically be conducted by the Med-Arbiter upon the filing of
a petition by a legitimate labor organization. In the abovedescribed situation, a certification election is made mandatory
because if there is no certified bargaining agent as determined by
a certification election, there could be no collective bargaining in
the said unorganized establishment.