I.

Employee-employer relationship

a. What is the importance of determining the existence of E-Er relationship?

Entitlement to labor standards benefits such as minimum wages, hours of work, overtime pay,
etc., or to social benefits under laws such as social security law, workmen’s compensation law, etc., or
to termination pay, or to unionism and other labor relations provisions under the Labor Code, are
largely dependent on the existence of employer-employee relationship between the parties.

-Will determine whether the controversy should fall within the exclusive jurisdiction of
labor Arbiter or not.

b. LA has no jurisdiction over independent contractors as there is no employee-employer

relationship between the party hiring and the Independent contractors.-Regular courts
have jurisdiction in case of dispute.

c. Can a principal in a legitimate job contracting sue the contractor for reimbursement
before the Labor Arbiter for salaries paid by the principal to the employees of the
contractor after the latter failed to pay them?

No, because there is no EE-ER relationship between the contractor and the principal.
Jurisprudence provides that the jurisdiction of the LA is predicted on the existence of
employee-employer relationship.

d. What is the effect if a person is not subject to any working hours, or is not required
to report on duty on any particular day, although he is receiving payment for his
services?

This Court has held that there is no employer-employee relationship where the supposed
employee is not subject to a set of rules and regulations governing the performance of
his duties under the agreement with the company and is not required to report for work
at any time, nor to devote his time exclusively to working for the company. In addition,
the designation of the payments to petitioner as salaries, is not determinative of the
existence of an employer-employee relationship.35 Salary is a general term defined as a
remuneration for services given.1

e. May the Labor relations system in the Philippines be given extra-territorial

application, like applying the provisions of the labor code to incident arising out of
employment of OFW abroad?

Yes. The Supreme Court ruled that it was wrong for the Labor Arbiter to rule that labor
relations system in the Philippines has no extra-territorial jurisdiction.
It is clear that labor arbiters have original and exclusive jurisdiction over claims arising
from employer-employee relations, including termination disputes involving all workers,
among whom are overseas Filipino workers. Whether employed locally or overseas, all
Filipino workers enjoy the protective mantle of Philippine labor and social
legislation, contract stipulations to the contrary notwithstanding 2xxxx

II. Sale of the company and its effect on the Employment status of the employees.

1
G.R. No. 189255June 17, 2015JESUS G. REYES,
vs.GLAUCOMA RESEARCH FOUNDATION, INC., EYE REFERRAL CENTER and MANUEL B. AGULT
2
SIM vs NLRC G.R. NO. 157376 October 2, 2007
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 a. Effect of change of majority of the new stockholders of the corporation

A change in the equity composition of the corporate shareholders should not result in the
automatic termination of the employment of the corporation’s employees. Neither should
it give the new majority shareholders the right to legally dismiss the corporation’s
employees, absent a just or authorized cause. 3

b. Distinction between stock sales and Asset sales of the company in relation to the
employment status of the employees.

In asset sales, the rule is that the seller in good faith is authorized to dismiss the affected
employees, but is liable for the payment of separation pay under the law. 4 The buyer in
good faith, on the other hand, is not obliged to absorb the employees affected by the
sale, nor is it liable for the payment of their claims. The most that it may do, for reasons of
public policy and social justice, is to give preference to the qualified separated personnel
of the selling firm.

In stock sale, the corporation continues to be the employer of its people and continues
to be liable for the payment of their just claims. Furthermore, the corporation or its new
majority share holders are not entitled to lawfully dismiss corporate employees absent a
just or authorized cause5.

c. Effect of change of ownership in the company on the existing CBA

Where such transfer of ownership is in good faith, the transferee is under no legal duty to
absorb the transferor’s employees as there is no law compelling such absorption.

CBA is not binding on the new owner of the company because CBA is a contract in
personam which takes effect only between the contracting parties, the SEBA and the
seller company.

III. HOURS OF WORK

A. What constitutes Hours Worked?

 when on DUTY
 - when at the WORKPLACE
 - when SUFFERED to work
 - when PERMITTED to work

B. What is the legal significance of knowing “HOURS WORKED?

To determine if the hours spent is compensable or not. “No work, No pay”

C. CRITERIA: If the worker cannot use the time effectively and gainfully for his own
purpose, it shall be considered as hours worked hence, compensable.

D. Management prerogative to set the time of work. The employer is free to adopt what
time in a day the work shall start as long as the total number of hours worked will not

3
G.R. No. 184517 October 8, 2013SME BANK INC., ABELARDO P. SAMSON, OLGA SAMSON and AURELIO VILLAFLOR,
JR., Petitioners,
vs.PEREGRIN T. DE GUZMAN,EDUARDO M. AGUSTIN, JR., ELICERIO GASPAR, , RICARDO GASPAR JR., EUFEMIA ROSETE,
FIDEL ESPIRITU, SIMEONESPIRITU, JR., and LIBERATO MANGOBA, Respondents. G.R. No. 186641SME BANK INC., ABELARDO P.
SAMSON, OLGA SAMSON and AURELIO VILLAFLOR, JR., vs. ELICERIO GASPAR, RICARDO GASPAR, JR., EUFEMIA ROSETE,
FIDEL ESPIRITU, SIMEONESPIRITU, JR., and LIBERATO MANGOBA,
4
Central Azucarera del Danao v. Court of Appeals, 221 Phil. 647 (1985).
5
See G.R. No. 184517
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 exceed 8 hours. If the number of hours worked exceed 8 hours, the employee must be
paid overtime pay for the excess.
E. Can an employee be compelled to render overtime?

Generally, employers cannot compel the employee to render overtime, except in certain
instances under Art. 89 of the Labor code (Emergency work cases)

F. Effect of failure to render overtime work in instances provided for under Ar. 89 of
the Labor Code:

The employee may dismissed for willful disobedience. Art. 89 of the Labor Code
empowers the employer to legally compel his employees to perform overtime
work against their will to prevent serious loss or damage 6:

IV. Wage Distortion/ Remedy

Wage "distortion" occurs when the usual differentials in wage rates between groups of employees
in an establishment are drastically reduced or eliminated due to mandated wage increases.

This means that the differences in wage structure based on skills, length of service, or other logical
bases of differentiation may be eliminated if the other employees already receiving more than the
minimum wage will not also have a corresponding increase in their salaries. Restoring a substantial or
significant gap, as against the historical wage differentials, is allowed under existing jurisprudence.7

Remedy:

In unionized firms, the employer and the union should negotiate to correct the distortion using
the grievance procedures in the collective bargaining agreement or CBA or, if the dispute remains
unresolved, through voluntary arbitration

In unionized firms, employers and workers should also endeavor to correct the
distortion. Any dispute is settled by conciliation through the National Conciliation and Mediation
Board (NCMB), or if it remains unresolved, by compulsory arbitration through the National Labor Relations
Commission (NLRC)

V. Prohibition regarding wages and the requirement to apply the exceptions

Article 113 of the Labor Code provides that no employer, in his own behalf or in
behalf of any person, shall make any deduction from the wages of his employees,
except in cases where the employer is authorized by law or regulations issued by
the Secretary of Labor and Employment, among others. The Omnibus Rules
Implementing the Labor Code, meanwhile, provides:

SECTION 14. Deduction for loss or damage. – Where the employer is engaged in
a trade, occupation or business where the practice of making deductions or
requiring deposits is recognized to answer for the reimbursement of loss or
damage to tools, materials, or equipment supplied by the employer to the
employee, the employer may make wage deductions or require the employees to
make deposits from which deductions shall be made, subject to the following
conditions:

(a) That the employee concerned is clearly shown to be responsible for the loss or
damage;

6
R.B. MICHAEL PRESS VS. NICASIO C. GALIT G.R. No. 153510February 13, 2008
7
DOLE
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 (b) That the employee is given reasonable opportunity to show cause why
deduction should not be made;

(c) That the amount of such deduction is fair and reasonable and shall not exceed
the actual loss or damage; and

(d) That the deduction from the wages of the employee does not exceed 20
percent of the employee’s wages in a week.

Employers should first establish that the making of deductions from the salaries is
authorized by law, or regulations issued by the Secretary of Labor 8.

VI. OFW/ Seafarer

a. “Doctrine of imputed knowledge”

1. Where should an OFW file her cause of action for money claims? (5pts)

Before the LA, because the latter has jurisdiction over money claims of OFW’s

Sec. 10. MONEY CLAIMS. – Notwithstanding any provision of law to the contrary, the Labor
Arbiters of the National Labor Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90) calendar days after filing of the
complaint, the claims arising out of an employer-employee relationship or by virtue of any
law or contract involving Filipino workers for overseas deployment including claims for
actual, moral, exemplary and other forms of damages.

2. What is the nature of the liability of the recruitment agency as an agent and the foreign
principal employer? (5pts) Explain

The liability of the principal/employer and the recruitment/placement agency for any
and all claims under this section shall be joint and several. This provisions [sic] shall be
incorporated in the contract for overseas employment and shall be a condition precedent
for its approval. The performance bond to be filed by the recruitment/placementagency, as
provided by law, shall be answerable for all money claims or damages that may be awarded
to the workers. If the recruitment/placement agency is a juridical being, the corporate
officers and directors and partners as the case may be, shall themselves be jointly and
solidarily liable with the corporation orpartnership for the aforesaid claims and damages 9

3. Explain the theory of imputed knowledge?

The theory of imputed knowledge ascribes the knowledge of the agent, Sunace, to the principal,
employer Xiong, not the other way around.[23] The knowledge of the principal-foreign employer cannot,
therefore, be imputed to its agent Sunace.

There being no substantial proof that Xe knew of and consented to be bound under the 2-year
employment contract extension, it cannot be said to be privy thereto. As such, it and its owner
cannot be held solidarily liable for any of O’s claims arising from the 2-year employment
extension. As the New Civil Code provides,

Contracts take effect only between the parties, their

assigns, and heirs, except in case where the rights and

8
G.R. No. 192582 April 7, 2014BLUER THAN BLUE JOINT VENTURES COMPANY/MARY ANN DELA VEGA, vs. GLYZA
ESTEBAN,
9
See G.R. No. 161757
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 obligations arising from the contract are not transmissible by
their nature, or by stipulation or by provision of law

b. Prohibited Activities under Art. 34 (i) of the LC against OFW

ART. 34. Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or holder
of authority: (i) To substitute or alter employment contracts approved and verified by the
Department of Labor from the time of actual signing thereof by the parties up to and
including the periods of expiration of the same without the approval of the Secretary ofLabor;

Effect of Contract Substitution-

“Contract Substitution” constitutes illegal recruitment under art. 38 (i) of the LC. ( Princess Joy
Placement and Gen Services Inc, vs. Binalia GR NO 197005, June 4, 2014)

c. Who may be held liable for Illegal Recruitment?

The last paragraph of Section 6 of Republic Act (RA) 8042 19 states who shall be held liable for
the offense, thus: The persons criminally liable for the above offenses are the principals,
accomplices and accessories. In case of juridical persons, the officers having control,
management or direction of their business shall be liable

d. Requirements to be entitled to death compensation benefits of a seafarer due to injury

or accident (Determine if in the discharge of duties or not):

1. Clearly, to be entitled for death compensation benefits from the employer, the death of
the seafarer (1) must be work-related; and (2) must happen during the term of the
employment contract.

2. Under the Amended POEA Contract, work-relatedness is now an important requirement.

The qualification that death must be work-related has made it necessary to show a causal
connection between a seafarer’s work and his death to be compensable.

3. Under the 2000 POEA Amended Employment Contract, work-related injury is defined as
an injury(ies) resulting in disability or death arising out of and in the course of
employment. Thus, there is a need to show that the injury resulting to disability or death
must arise (1) out of employment, and (2) in the course of employment.

As a matter of general proposition, an injury or accident is said to arise "in the course of
employment" when it takes place within the period of the employment, at a place
where the employee reasonably may be, and while he is fulfilling his duties or is
engaged in doing something incidental thereto. 10 -----

4. Who determines whether the injury or illness sustained is partial or temporary?

It is explicit and clear that for purposes of determining the seafarer’s degree of disability,
it is the company-designated physician who must proclaim that he sustained a
permanent disability, whether total or partial, due to either injury or illness, during the
term of his employment,” the Supreme Court added. (Ison vs. Crewserve, Inc., et. al., G.R.
No. 173951, April 16, 2012)

5. What is Medical abandonment under Seafarers claim?

10
G.R. No. 191740 February 11, 2013SUSANA R. SY,
vs.PHILIPPINE TRANSMARINE CARRIERS, INC., and/or SSC SHIP MANAGEMENT PTE., LTD.,
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 It is the failure to complete his treatment before the lapse of the 240-day period, which
prevents the company physician from declaring him fit to work or assessing his
disability11

6. Status of employment of seafarer and effect of expiration of the contract signed

vis-à-vis his right to be paid while on board despite expiration of the contract.

A seaman is a contractual and not a regular employee. His employment is contractually fixed
for a certain period of time. A seaman need not physically disembark from a vessel at the
expiration of his employment contract to have such contract considered terminated. Thus, in
case his contract expires, his employment is automatically terminated. The fact that he was
allowed to remain on board the vessel, there is NO IMPLIED RENEWAL of his contract.

However, He is entitled to be paid his wages after the expiration of his contract until the
vessel's arrival at a convenient port. Section 19 of the Standard Terms and Conditions
Governing the Employment of Filipino Seafarers On-Board Ocean-Going Vessels is clear on
this point:

REPATRIATION. A. If the vessel is outside the Philippines upon the

expiration of the contract, the seafarer shall continue his service on board
until the vessel's arrival at a convenient port and/or after arrival of the
replacement crew, provided that, in any case, the continuance of such
service shall not exceed three months. The seafarer shall be entitled to
earned wages and benefits as provided in his contract 12.
VII. Right to self-organization- Certification election-

a. Effect of mixture of membership of Supervisory and rank-and-file

employees in one union.

Any mingling between supervisory and rank-and-file employees in its

membership cannot affect its legitimacy for that is not among the grounds for
cancellation of its registration, unless such mingling was brought about by
misrepresentation, false statement or fraud under Article 239 of the Labor Code. 13
Thus, certification election should continue despite the objection of the
employer-

EMPLOYER’S ROLE In a CE:

Except when it is requested to bargain collectively, 62 an employer is a mere

bystander to any petition for certification election; such proceeding is non-
adversarial and merely investigative, for the purpose thereof is to determine
which organization will represent the employees in their collective
bargaining with the employer.63 The choice of their representative is the
exclusive concern of the employees; the employer cannot have any partisan
interest therein; it cannot interfere with, much less oppose, the process by filing a
motion to dismiss or an appeal from it;64 not even a mere allegation that some
employees participating in a petition for certification election are actually
managerial employees will lend an employer legal personality to block the
certification election.65 The employer's only right in the proceeding is to be
notified or informed thereof.

11
G.R. No. 211111, September 25, 2017 C.F. SHARP CREW MANAGEMENT, INC., ITS PRESIDENT, AND GULF ENERGY
MARITIME,Petitioners, v. NOEL N. ORBETA,
12
G.R. No. 184318 February 12, 2014ANTONIO E. UNICA,
vs .ANSCOR SWIRE SHIP MANAGEMENT CORPORATION
13
REPUBLIC OF THE PHILIPPINES, represented by Department of Labor and Employment (DOLE), vs. KAWASHIMA TEXTILE MFG.,
PHILIPPINES, INC., G.R. No. 160352 July 23, 2008

LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG

 b. Effect of pending petition for cancellation of Union registration on the
Certification elections:

In Association of Court of Appeals Employees v. Ferrer-Calleja, this Court was

tasked to resolve the issue of whether “the certification proceedings should be
suspended pending [the petitioner’s] petition for the cancellation of union
registration of the UCECA.” (UNION)

ANS:

The Court resolved the issue in the negative holding that “an order to hold a
certification election is proper despite the pendency of the petition for
cancellation of the registration certificate of the respondent union. The rationale
for this is that at the time the respondent union filed its petition, it still had the
legal personality to perform such act absent an order directing a cancellation.
Collateral attack is not allowed.

VIII. Jurisdiction of LA vs. VA

c. Who has jurisdiction over money claims arising from CBA?

1. The Court has pronounced that “the original and exclusive jurisdiction of the Labor
Arbiter under Article 217(c) for money claims is limited only to those arising from statutes
or contracts other than a Collective Bargaining Agreement. The Voluntary Arbitrator or
Panel of Voluntary Arbitrators will have original and exclusive jurisdiction over money
claims ‘arising from the interpretation or implementation of the Collective
Bargaining Agreement and, those arising from the interpretation or enforcement of
company personnel policies’, under Article 261.” 14

d. Who has jurisdiction over termination arising from interpretation of CBA?

VA and not the LA especially so if the termination dispute is between the

employer and the Union representing the worker to be terminated under the
provision of a CBA. (Meaning there is a dispute between the Union and the
Employer with respect to the interpretation of the provision of CBA on
termination)

However, if the Union and the employer are in agreement about the termination
of the union member, then LA has jurisdiction to determine if there is indeed a
sufficient ground for termination15

IX. Validity of quitclaims;

Not all waivers and quitclaims are invalid as against public policy. If the agreement was
voluntarily entered into and represents a reasonable settlement, it is binding on the parties
and may not later be disowned simply because of a change of mind. It is only where there is
clear proof that the waiver was wangled from an unsuspecting or gullible person, or the
terms of settlement are unconscionable on its face, that the law will step in to annul the
questionable transaction. But where it is shown that the person making the waiver did so
voluntarily, with full understanding of what he was doing, and the consideration for the
quitclaim is credible and reasonable, the transaction must be recognized as a valid and
binding undertaking.26

14
San Jose v. NLRC, 355 Phil. 759, 772 (1998).
15
See Sanyo Phil. Workers Union vs. Canizares 211 SCRA 361
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 Requisites:

The Court has accepted the validity of quitclaims executed by employees if the employer is
able to prove the following requisites: (1) the employee executes a deed of quitclaim
voluntarily; (2) there is no fraud or deceit on the part of any of the parties; (3) the
consideration of the quitclaim is credible and reasonable; and (4) the contract is not contrary
to law, public order, public policy, morals or good customs or prejudicial to a third person
with a right recognized by law. [Sime Darby Pilipinas, Inc. v. Arguilla, G.R. No. 143542, June 8,
2006, 490 SCRA 183, 201]

X. 13th month pay (Excluded employee)

Employees excluded from coverage of 13th month pay law.

1. Managerial employees;
2. Those covered under the civil service law;
3. Those already receiving 13th month pay or its equivalent. Christmas bonus, mid-year bonus, cash
bonuses and other payments amounting to not less than 1/12 of the basic salary are treated as
equivalent of 13th month pay;
4. Household helpers and persons in the personal service of another; and
5. Those paid on purely commission, boundary, or task basis, and those who are paid fixed amount
for performing specific work except those paid on a piece-rate basis.

CAVEAT:

KASAMBAHAY entitled to 13th month pay- (The domestic worker is entitled to a thirteenth month
pay as provided for by law)

The benefit of 13th month pay is included in the enumeration of rights and privileges of domestic workers
under Section 1, Rule IV of the Implementing Rules and Regulations of RA 10361. Section 8 thereof
explicitly declares that a domestic worker is entitled to a 13th month pay, which shall not be less than
one-twelfth of his/her total basic salary earned within a calendar year provided that he/she has rendered
at least one month of service. Such benefit must be paid not later than December 24 of every year or
upon separation from employment.

1. Employees paid according to “boundary” system are not entitled to 13th mo pay. Boundary
system is where the employees do not receive fixed wages, but retain only those sums in excess
of the “boundary” or fee they pay to the owners or operators of their vehicles. They are akin to
employees paid on purely commission basis. (R&E Transport v. Latag, G.R. No. 155214.)

2. Drivers who are paid on commission basis, but with guaranteed minimum wage in case their
commission be less than their basic minimum, are entitled to 13th month pay. (PACIWU v. NLRC,
GR No 107994.)

XI. Art. 128- Enforcement and visitiorial power of the SOLE

a. NO LIMIT AS TO THE AMOUNT OF MONEY CLAIMS ARISING FROM VIOLATION OF

LABOR STANDARD BENEFITS

Cirineo Bowling Plaza, Inc. v. Sensing,[24] where we sustained the jurisdiction of the DOLE
Regional Director and held that “the visitorial and enforcement powers of the DOLE Regional
Director to order and enforce compliance with labor standard laws can be exercised even
where the individual claim exceeds P5,000.” (See G.R. No. 152396 November 20, 2007)

b. Important requirement before the DOLE may exercise its power under Art. 128 Lc

LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG

 The existence of an employer-employee relationship is a statutory prerequisite to and a
limitation on the power of the Secretary of Labor, one which the legislative branch is
entitled to impose.16

Like the NLRC, the DOLE has the authority to rule on the existence of an employer-
employee relationship between the parties, considering that the existence of an
employer-employee relationship is a condition sine qua non for the exercise of its
visitorial power. Nevertheless, it must be emphasized that without an employer-
employee relationship, or if one has already been terminated, the Secretary of Labor is
without jurisdiction to determine if violations of labor standards provision had in fact
been committed,24 and to direct employers to comply with their alleged violations of
labor standards.

XII. Secretary of Labor assumption of jurisdiction over Labor Dispute-

a. After the Secretary of Labor and Employment assumed jurisdiction over strike, can he
decide issue on Illegal dismissal considering that said case falls under the exclusive
jurisdiction of the LA?

Yes. The assumption of jurisdiction powers granted to the Labor Secretary

under Article 263(g) is not limited to the grounds cited in the notice of
strike or lockout that may have preceded the strike or lockout; nor is it
limited to the incidents of the strike or lockout that in the meanwhile may
have taken place. As the term “assume jurisdiction” connotes, the
intent of the law is to give the Labor Secretary full authority to resolve
all matters within the dispute that gave rise to or which arose out of
the strike or lockout, including cases over which the labor arbiter has
exclusive jurisdiction.

In the present case, what the Labor Secretary refused to rule upon was the
dismissal from employment of employees who violated the return to work
order and participated in illegal acts during a strike. This was an issue that
arose from the strike and was, in fact, submitted to the Labor Secretary,
through the union’s motion for the issuance of an order for immediate
reinstatement of the dismissed officers and the company’s opposition to
the motion. The dismissal issue was properly brought before the Labor
Secretary and he was mistaken in ruling that the matter is legally
within the exclusive jurisdiction of the labor arbiter to decide17.

XIII. TERMINATION

e. Agabon v. NLRC:

Procedurally, (1) if the dismissal is based on a just cause under Article 282, the
employer must give the employee two written notices and a hearing or opportunity to be
heard if requested by the employee before terminating the employment: a notice
specifying the grounds for which dismissal is sought a hearing or an opportunity to be
heard and after hearing or opportunity to be heard, a notice of the decision to dismiss;
and (2) if the dismissal is based on authorized causes under Articles 283 and 284, the
employer must give the employee and the Department of Labor and Employment written
notices 30 days prior to the effectivity of his separation.

16
G.R. No. 217575, June 15, 2016 SOUTH COTABATO COMMUNICATIONS CORPORATION AND GAUVAIN J. BENZONAN, v. HON.
PATRICIA STO. TOMAS, SECRETARY OF LABOR AND EMPLOYMENT, ROLANDO FABRIGAR, MERLYN VELARDE, VINCE
LAMBOC, FELIPE GALINDO, LEONARDO MIGUEL, JULIUS RUBIN, EDEL RODEROS, MERLYN COLIAO, AND EDGAR JOPSON
17
Bagong Pagkakaisa ng Manggagawa ng Triumph International, et al. vs. Secretary of Department of Labor and Employment, et al./Triumph
International (phils.), Inc. vs. Bagong Pagkakaisa ng Manggagawa ng Triumph International, et al., G.R. No. 167401, July 5, 2010.

LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG

 f. Thus, there is still a need to comply with the twin notice requirement and
the requisite hearing or conference to ensure that the employees are
afforded due process even though they may have been caught in
flagrante or when the evidence of the commission of the offense is
strong18

g. Under what circumstance a preventive suspension maybe imposed

by the Er? (Twin Notice rule must still be complied before
termination is effected)
If the continued employment poses a serious and imminent threat to the
life or property of the employers or of other employees like theft or
physical injuries, and there is a need for preventive suspension,[17] the
employers can immediately suspend the erring employees for a period of
not more than 30 days. Notwithstanding the suspension, the employers
are tasked to comply with the twin notice requirement under the law. The
preventive suspension cannot replace the required notices. 19
h. Constructive dismissal (No constructive dismissal if committed by a
co-woker)

Constructive dismissal exists where there is cessation of work, because

"continued employment is rendered impossible, unreasonable or unlikely,
as an offer involving a demotion in rank or a diminution in pay" and
other benefits. Aptly called a dismissal in disguise or an act amounting to
dismissal but made to appear as if it were not, constructive dismissal
may, likewise, exist if an act of clear 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.

It is to be emphasized that the abovementioned acts should have been

committed by the employer against the employee. Unlawful acts
committed by a co-employee will not bring the matter within the
ambit of constructive dismissal.20

XIV. Reinstatement aspect of LA’s Decision-

a. No refund is required from the employee in case of reversal on appeal

Since the decision is immediately executory, it is the duty of the employer to comply
with the order of reinstatement, which can be done either actually or through payroll
reinstatement. As provided under Article 223 of the Labor Code, this immediately
executory nature of an order of reinstatement is not affected by the existence of an
ongoing appeal. The employer has the duty to reinstate the employee in the interim
period until a reversal is decreed by a higher court or tribunal.

In the case of payroll reinstatement, even if the employer’s appeal turns the tide in
its favor, the reinstated employee has no duty to return or reimburse the salary he

18
R.B. MICHAEL PRESS VS. NICASIO C. GALIT G.R. No. 153510February 13, 2008
19
Tanala v. National Labor Relations Co mmission, G.R. No. 116588, January 24, 1996, 252 SCRA 314, 321.
20
G.R. No. 195428 August 29, 2012
JOMAR S. VERDADERO, vs.BARNEY AUTOLINES GROUP OF COMPANIES TRANSPORT, INC., and/or BARNEY D. CHITO,
ROSELA F. CHITO and GERARDO GIMENEZ
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 received during the period that the lower court or tribunal’s governing decision was
for the employee’s illegal dismissal21.

b. Employer is liable for the accrued wages of the employee, i.e., the unpaid salary
accruing in case the employer fails to reinstate the employee during the
pendency of the appeal from the LA’s decision .

The reversal by a higher tribunal of the LA’s finding (of illegal dismissal),
notwithstanding, an employer, who, despite the LA’s order of reinstatement, did not
reinstate the employee during the pendency of the appeal up to the reversal by a
higher tribunal may still be held liable for the accrued wages of the employee, i.e., the
unpaid salary accruing up to the time the higher tribunal reverses the decision. 32 The
rule, therefore, is that an employee may still recover the accrued wages up to
and despite the reversal by the higher tribunal. This entitlement of the employee
to the accrued wages proceeds from the immediate and self-executory nature of
the reinstatement aspect of the LA’s decision.22

XV. STRIKE:
Members liability depends on participation in illegal acts:

a. The liability for illegal strike is individual and not collective

b. Art. 269(a) of the Labor Code provides that a member is liable when he knowingly participates
in an illegal act during a strike. While the provision is silent on whether the strike is legal or
illegal, We find that the same is irrelevant. As long as the members commit illegal acts, in a
legal or illegal strike, then they can be terminated 23.

c. When union members merely participate in an illegal strike without committing any
illegal act, are they liable?

No. This was squarely answered in Gold City Integrated Port Service, Inc. v. NLRC,24 where it
was held that an ordinary striking worker cannot be terminated for mere participation in an
illegal strike. This was an affirmation of the rulings in Bacus v. Ople25and Progressive Workers
Union v. Aguas,26 where it was held that though the strike is illegal, the ordinary member who
merely participates in the strike should not be meted loss of employment on the
considerations of compassion and good faith and in view of the security of tenure
provisions under the Constitution. In Esso Philippines, Inc. v. Malayang Manggagawa sa Esso
(MME), it was explained that a member is not responsible for the unions illegal strike even if
he voted for the holding of a strike which became illegal. 27

21 G.R. No. 207983 April 7, 2014WENPHIL CORPORATION,

vs.ALMER R. ABING and ANABELLE M. TUAZON

22G.R. No. 195227 April 21, 2014FROILAN M. BERGONIO, JR., DEAN G. PELAEZ, CRISANTO O. GEONGO, WARLITO
O. JANAYA, SALVADOR VILLAR, JR., RONALDO CAFIRMA, RANDY LUCAR, ALBERTO ALBUERA, DENNIS NOPUENTE and
ALLAN SALVACION, Petitioners,
vs.SOUTH EAST ASIAN AIRLINES and IRENE DORNIER,

23
Chua v. NLRC, G.R. No. 105775, February 8, 1993, 218 SCRA 545.
24
G.R. No. 123276, July 6, 1995, 245 SCRA 627, 637.
25
No. L-56856, October 23, 1984, 132 SCRA 690.
26
G.R. Nos. 59711-12, May 29, 1985, 150 SCRA 429.
27
No. L-36545, January 26, 1977, 75 SCRA 73, 90.
LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG
 d. Termination of Union officers during illegal strike still requires the observance of due
process.

While Article 264 authorizes the termination of the union officers and employees, it does not
remove from the employees their right to due process. Regardless of their actions during the
strike, the employees remain entitled to an opportunity to explain their conduct and why they
should not be penalized. In Suico v. National Labor Relations Commission,81 we have
reiterated the need for the employers to comply with the twin-notice requirement despite the
cause for the termination arising from the commission of the acts prohibited by Article 264,
thus:

Art. 277(b) in relation to Art. 264(a) and (e) recognizes the right to due process of all workers,
without distinction as to the cause of their termination. Where no distinction is given, none is
construed. Hence, the foregoing standards of due process apply to the termination of
employment of Suico, et al. even if the cause therefor was their supposed involvement in
strike-related violence prohibited under Art. 264 (a) and (e).28

e. Who has jurisdiction to determine legality of strike?

In general, the Labor Arbiter in the appropriate Arbitration Branch of the National Labor
Relations Commission has the power to determine questions involving the legality or the
illegality of a strike or lockout upon the filing of a proper complaint and after due hearing.

Where the matter of legality or illegality of strike is raised in the dispute over which the
Secretary assumed jurisdiction or in disputes certified by the Secretary to the Commission for
compulsory arbitration, the same may be resolved by the Secretary or the Commission,
respectively. (International Pharmaceuticals, Inc. vs. Secretary of Labor and Associated Labor
Union, G.R. No. 92981-83, January 9, 1992.)

XVI. CBA- effect of failure to reply or submit counter-proposal on the part of the employer
with respect to the CBA submitted by the union

There will be violation of the duty to bargain collectively and when the employer refused to
perform its duty to bargain collectively, there will be unilateral imposition on the employer of
the CBA proposed by the Employees Union.

Jurisprudence provides that when the employer violated the duty to bargain collectively,
based on Kiok Loy and Divine Word University of Tacloban, it had lost its statutory right to
negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union.
Thus, we did not hesitate to impose on the erring company the CBA proposed by its
employees union - lock, stock and barrel29.

XVII. Prescriptive period of money claims

Service incentive leave pay

Applying Article 291 of the Labor Code in light of this peculiarity of the service incentive
leave, we can conclude that the three (3)-year prescriptive period commences, not at the
end of the year when the employee becomes entitled to the commutation of his service
incentive leave, but from the time when the employer refuses to pay its monetary

28
G.R. No. 156635, January 11, 2016 THE HONGKONG & SHANGHAI BANKING CORPORATION EMPLOYEES UNION, VS NLRC
29
[G.R. No. 146728. February 11, 2004]GENERAL MILLING CORPORATION, vs. HON. COURT OF APPEALS, GENERAL MILLING
CORPORATION INDEPENDENT LABOR UNION (GMC-ILU), and RITO MANGUBAT

LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG

 equivalent after demand of commutation or upon termination of the employee's
services, as the case may be.30

-Implore the guidance of the Almighty-

“Fortuna Fortem Favet”

Fortune Favors the Brave

30
G.R. No. 222980 LOURDES C. RODRIGUEZ, vs PARK N RIDE INC.NICEST (PHILS) INC./GRAND LEISURE CORP./SPS. VICENTE &
ESTELITA B. JAVIER, March 20, 2017

LABOR LAW REVIEWER LABOR ARBITER ABDUL AZIS U. METMUG