Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
LABOR LAW
I
Narciso filed a complaint against Norte University for the payment of
retirement benefits after having been a part-time professional lecturer in the
same school since 1974. Narciso taught for two semesters and a summer term
for the school year 1974-1975, took a leave of absence from 1975 to 1977, and
resumed teaching until 2003. Since then, his contract has been renewed at the
start of every semester and summer, until November 2005 when he was told
that he could no longer teach because he was already 75 years old. Norte
University also denied Narciso's claim for retirement benefits stating that only
full-time permanent faculty, who have served for at least five years
immediately preceding the termination of their employment, can avail
themselves of post-employment benefits. As part-time faculty member, Narciso
did not acquire permanent employment status under the Manual of Regulations
for Private Schools, in relation to the Labor Code, regardless of his length of
service.
(a)
Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER:
(a)
As a part-time employee with fixed-term employment, Narciso
is entitled to retirement benefits. Book VI, Rule II of the Rules
Implementing the Labor Code states that the rule on
retirement shall apply to all employees in the private sector,
regardless of their position, designation or status and
irrespective of the method by which their wages are paid,
except to those specifically exempted. Part-time faculty
members do not fall under the exemption. Based also on the
Retirement Pay Law, and its Implementing Rules, part-time
faculty members of private educational institutions are entitled
to full retirement benefits even if the services are not
continuous, and even if their contracts have been renewed after
their mandatory age of retirement.
1
ALTERNATIVE ANSWERS:
(a)
Under Art 302 (287) of the Labor Code as amended by
Republic Act No. 7641, part-timers are entitled to retirement
benefits (De La Salle Araneta University v. Bernardo, G.R. No.
190809, February 13, 2017).
ANOTHER ALTERNATIVE ANSWER:
(a)
Narciso is not entitled to his retirement benefit anymore
because of prescription. Money claims prescribes in 3 years
(Art. 306). Narciso’s retirement claim accrued in 2005, the
year he was considered retired by the school. He should have
filed his claim in the year 2008.
(b)
If he is entitled to retirement benefits, how should retirement pay
be computed in the absence of any contract between him and
Norte University providing for such benefits? (2.5%)
SUGGESTED ANSWER:
(b)
In the absence of any contract providing for higher retirement
benefits, private educational institutions, including Norte
University, are obligated to set aside funds for the retirement
pay of all its part-time faculty members. A covered employee
who retires pursuant to the Retirement Pay Law shall be
entitled to retirement pay equivalent to at least one-half (1/2)
month salary for every year of service, a fraction of at least six
(6) months being considered as one whole year. One-half
month salary shall mean fifteen (15) days plus one-twelfth
(1/12) of the 13th month pay and the cash equivalent of not
more than five (5) days service incentive leaves. In total, this
should amount to 22.5 days for every year of service (De La
Salle Araneta University v. Bernardo, G.R. No. 190809,
February 13, 2017).
2
II
Nayon Federation issued a charter certificate creating a rank-and-file
Neuman Employees Union. On the same day, New Neuman Employees Union
filed a petition for certification election with the Department of Labor and
Employment (DOLE) Regional Office, attaching the appropriate charter
certificate.
(a)
The employer, Neuman Corporation, filed a motion to dismiss the
petition for lack of legal personality on the part of the petitioner
union. Should the motion be granted? (2.5%)
SUGGESTED ANSWER:
(a)
No. The motion should be denied. Under Article 240 of the
Labor Code (LC), a petition for certification election may be
filed on the basis of a valid charter certificate issued to a
chartered local by a duly registered federation.
(b)
The employer likewise filed a petition for cancellation of union
registration against New Neuman Employees Union, alleging that
Nayon Federation already had a chartered local rank-and-file
union, Neuman Employees Union, pertaining to the same
bargaining unit within the establishment. Should the petition for
cancellation prosper? (2.5%)
SUGGESTED ANSWER:
(b)
No. The existence of another chartered local under the same
federation within the same bargaining unit is not among the
grounds to cancel union registration under Article 247 LC, as
amended by RA 9481.
ALTERNATIVE ANSWER:
(b)
Petition for cancellation of union registration filed by employer
Neuman Corporation may prosper. While the employer may
file a case as it is considered a party-in-interest in cancellation
proceedings (Del Castillo, Asian Institute of Management v
Asian Institute of Management Faculty Association, G.R. No.
207971, January 23, 2017), the union’s certification may be
revoked or cancelled if it appears that there are sufficient
grounds for its cancellation viz., fraud or misrepresentation in
3
the election of officers xxx; fraud or misrepresentation in the
ratification of constitution and by-laws.
III
Due to his employer's dire financial situation, Nicanor was prevailed
upon by his employer to voluntarily resign. In exchange, he demanded payment
of salary differentials, 13th month pay, and financial assistance, as promised by
his employer. Management promised to pay him as soon as it is able to pay off
all retrenched rank-and-file employees. Five years later, and before
management was able to pay Nicanor the amount promised to him, Nicanor
died of a heart attack. His widow, Norie. filed a money claim against the
company before the National Labor Relations Commission (NLRC), including
interest on the amount of the unpaid claim. She also claimed additional
damages arguing that the supposed resignation letter was obtained from her
spouse through undue pressure and influence. The employer filed a motion to
dismiss on the ground that (A) the NLRC did not have jurisdiction over money
claims, and (8) the action has prescribed.
(a)
Does the NLRC have jurisdiction to award money claims including
interest on the amount unpaid? (2.5%)
SUGGESTED ANSWER:
(a)
The NLRC has jurisdiction over money claims arising from an
employer-employee relationship where the amount claimed is
in excess of PhP 5,000, including interest, regardless of whether
or not there is a claim for reinstatement. (Sec. 10, RA 8042, as
amended by RA 10022.
(b) Assuming that the NLRC has jurisdiction, has the action
prescribed?(2.5%)
SUGGESTED ANSWER:
(b)
In Accessories Specialists, Inc. v. Alabama, (G.R. No. 168985,
July 23, 2008), the Supreme Court held that the principle of
promissory estoppel can apply as a recognized exception to the
three-year prescriptive period under Article 291 (now 306) of
the Labor Code.
Nicanor relied on the promise of the
employer that he would be paid as soon as the claims of
retrenched employees were paid. If not for this promise, there
would have been no reason why Nicanor would delay the filing
4
of the complaint. Great injustice would be committed if the
employee’s claim were brushed aside on mere technicality,
especially when it was the employer’s action that prevented
Nicanor from filing the claims within the required period.
ALTERNATIVE ANSWER:
(b)
Yes, the action has unfortunately prescribed as there is only a
three-year prescriptive period for monetary claims under the
Labor Code as in the case of retirement benefits.
(c)
May Nicanor's spouse successfully claim additional damages as a
result of the alleged undue pressure and influence? (2.5%)
SUGGESTED ANSWER:
(c)
Norrie failed to establish that Nicanor’s consent was vitiated
when he filed his resignation letter.
In BMG Record v.
Aparecio, (G.R. No. 153290, September 5, 2007), the SC ruled
that the matter of “financial assistance” was an act of
generosity on the part of management.
circumstances,
Under the
Nicanor had the intention to resign. Once
management had accepted the resignation, Nicanor could not
unilaterally withdraw this voluntary act of termination of
employment.
ALTERNATIVE ANSWER:
(c)
No.
In this case Nicanor voluntarily resigned. Burden of
proof of the fact of dismissal, and of the alleged undue pressure
and influence, is upon Nicanor’s wife as claimant. Absent such
proof, the claim of damages must fail (Del Castillo, Malixi v.
Mexicali Philippines, G.R. No. 205061, June 8, 2016).
IV
Natasha Shoe Company adopted an organizational streamlining program
that resulted in the retrenchment of 550 employees in its main plant. After
having been paid their separation benefits, the retrenched workers demanded
payment of retirement benefits under a CBA between their union and
management. Natasha Shoe Company denied the workers' demand.
5
(a)
What is the most procedurally peaceful means to resolve this
dispute? (2.5%)
SUGGESTED ANSWER:
(a)
The parties may resolve this through plant-level mechanisms
such as a labor-management committee or a grievance
machinery under a collective bargaining agreement.
(b)
Can the workers claim both separation pay and retirement
benefits? (2.5%)
SUGGESTED ANSWER:
(b)
In Santos v. Senior Philippines, (G.R. No. 166377, November 28,
2008), the Supreme Court held that retirement benefits and
separation pay are not mutually exclusive, and both benefits
may be paid in the absence of a contrary stipulation in the
retirement plan and/or in the CBA.
ALTERNATIVE ANSWER:
(b)
Yes. In the absence of any express or implied prohibition
against it, collection of both retirement benefits and separation
pay upon severance from employment is allowed. This is
grounded on the social justice policy that doubts should always
be resolved in favor of labor (Goodyear Philippines, Inc. v.
Angus, G.R. No. 185449, November 12, 2014).
V
Nelda worked as a chambermaid in Hotel Neverland with a basic wage of
PhP560.00 for an eight-hour workday. On Good Friday, she worked for one (1)
hour from 10:00 PM to 11 :00 PM. Her employer paid her only PhP480.00 for
each 8-hour workday, and PhP70.00 for the work done on Good Friday. She
sued for underpayment of wages and non-payment of holiday pay and night
shift differential pay for working on a Good Friday. Hotel Neverland denied
the alleged underpayment, arguing that based on long-standing unwritten
tradition, food and lodging costs were partially shouldered by the employer
and partially paid for by the employee through salary deduction. According to
the employer, such valid deduction caused the payment of Nelda's wage to be
6
below the prescribed minimum. The hotel also claimed that she was not
entitled to holiday pay and night shift differential pay because hotel workers
have to work on holidays and may be assigned to work at night.
(a)
Does the hotel have valid legal grounds to deduct food and lodging
costs from Nelda's basic salary? (2.5%)
SUGGESTED ANSWER:
(a)
In Mabeza v. NLRC, (271 SCRA 670 [1997]), the Supreme
Court established three requirements before the value of
“facilities” such as food and lodging may be deducted from an
employee’s wages: first, proof must be shown that such
facilities are customarily furnished by the trade; second, the
provision of deductible facilities must be voluntarily accepted
in writing by the employee; and finally, facilities must be
charged at fair and reasonable value. In the case at hand, the
second and third requisites on voluntary acceptance of
deductible facilities in writing, at fair and reasonable value,
was not established.
ALTERNATIVE ANSWER:
(a)
No. In Atok Big Wedge Association v. Atok Big Wedge Company,
(G.R. No. L-7349, July 19, 1955), the Supreme Court
distinguished
facilities
from
supplement.
Supplements
constitutes extra remuneration given to laborers above their
wage. Facilities are items of expense necessary for the laborer’s
and his family’s existence and subsistence.
Board and
lodging are treated as supplement if the company benefits
from the employees not going home anymore or not leaving his
work station to eat. Since Nelda is a chambermaid, her board
and lodging should be treated as supplement.
(b)
Applying labor standards law, how much should Nelda be paid for
work done on Good Friday? Show the computation in your test
booklet and encircle your final answer. (2.5%)
7
SUGGESTED ANSWER:
(b)
As an employee paid PhP 70 an hour, Nelda was entitled to an
additional 100% of her hourly wage for working on a Good
Friday, plus 10% for night differential pay. Nelda should be
paid a total of PhP 154.00 for working that day.
VI
A certification election was conducted in Nation Manufacturing
Corporation, whereby 55% of eligible voters in the bargaining unit cast their
votes. The results were as follows:
Union Nana: 45 votes
Union Nada: 40 votes
Union Nara: 30 votes
No Union: 80 votes
Union Nana moved to be declared as the winner of the certification election.
(a)
Can Union Nana be declared as the winner? (2.5%)
SUGGESTED ANSWER:
(a)
Union Nana cannot be immediately declared as the winner. A
run-off election pursuant to Article 268 of the Labor Code
(LC) must be first be conducted. A run-off election is required
since the present case involves an election which provided for
three or more choices, with no choice receiving a majority of
the valid votes cast, and the total number of votes for all
contending unions being at least 50% of the number of votes
cast.
(b)
Assume that the eligibility of 30 voters was challenged during the
pre-election conference. The ballots of the 30 challenged voters
were placed inside an envelope sealed by the DOLE Election
Officer. Considering the said envelope remains sealed, what
should be the next course of action with respect to the said
challenged votes? (2.5%)
SUGGESTED ANSWER:
(b)
Since the challenged votes may materially affect the
results of the election, and may in fact even give Union
Nada or Union Nara an absolute majority, then the said
8
challenged votes should be opened. Pursuant to Rule IX,
Section 11 of the Rules Implementing Book V of the Labor
Code, the envelope with the challenged votes shall be
opened and the question of eligibility shall be passed upon
by the DOLE med-arbiter.
VII
Nico is a medical representative engaged in the promotion of
pharmaceutical products and medical devices for Northern Pharmaceuticals,
Inc. He regularly visits physicians' clinics to inform them of the chemical
composition and benefits of his employer's products. At the end of every day,
he receives a basic wage of PhP700.00 plus a PhP150.00 "productivity
allowance." For purposes of computing Nico's 13th month pay, should the
daily "productivity allowance" be included? (2.5%)
SUGGESTED ANSWER:
No. The second paragraph of Section 5(a) of the Revised Guidelines
Implementing the 13th Month Pay Law states that “employees who are
paid a fixed or guaranteed wage plus commission are also entitled to the
mandated 13th month pay, based on their total earnings during the
calendar year, i.e., on both their fixed or guaranteed wage and
commission.”
However, the SC in Philippine Duplicators, Inc. v. NLRC,
241 SCRA 380 (G.R. No. 110068 February 15, 1995), declared the aforesaid
provision as null and void with respect to those medical representatives
who do not obtain productivity allowances by virtue of generated sales.
Such allowances are in the nature of profit-sharing bonuses or
commissions that should be properly excluded from the ambit of the term
“basic salary” for purposes of computing 13th month pay due to
employees.
ALTERNATIVE ANSWER :
Yes, the productivity allowance should be included in the
computation of the 13th month pay. The said allowance is a fixed amount
and made part of Nico’s daily compensation, and as such this is
9
demandable and enforceable as a matter of right. The “basic salary” of an
employee for the purposes of computing the 13th month pay include all
remuneration or earnings paid by his employer for services rendered but
does not include allowances and monetary benefits which are not
considered or integrated as part of the regular or basic salary (Protacio v.
LayaMananghaya & Co., G.R. No. 168654, March 25, 2009).
ANOTHER ALTERNATIVE ANSWER:
Yes. Central Azucarera De Tarlac v. CetralAzucarera De Tarlac Labor
Union , (G.R. No. 188949, July 26,2010), pronounced that the 13th-month
pay mandated by Presidential Decree No. 851 represents an additional
income based on wage but not part of the wage. It is equivalent to onetwelfth (1/12) of the total basic salary earned by an employee within a
calendar year.
ANOTHER SUGGESTED ALTERNATIVE ANSWER:
The issue in this case is whether or not to include “productivity
allowance” in the computation of 13th month pay. If what is contemplated
is productivity allowance in essence, it should be excluded according to the
ruling in Boie-Takeda case, but the nature of the allowance in this case is
not clear— whether it is really productivity allowance, or is just called
“productivity allowance” in name. If there is no showing that the allowance
is really a productivity allowance, we must look at Article 4 of the Labor
Code, that in case of obscurity or ambiguity as to interpretation, we favor
the laborer. Based on the with the facts, the productivity allowance should
be included in the computation, as the nomenclature of “productivity
allowance” is not binding; moreover, the facts show that Nico receives the
allowance everyday. There is no condition with regard the “productivity
allowance” as to performance. In the old definition of bonus, which does
not include basic wage, it should be conditioned on particular hours
worked, or sales made etc.
10
VIII
Nathaniel has been a salesman assigned by Newmark Enterprises
(Newmark) for nearly two years at the Manila office of Nutrition City, Inc.
(Nutrition City). He was deployed pursuant to a service agreement between
Newmark and Nutrition City, the salient provisions of which were as follows:
(a)
the Contractor (Newmark) agrees to perform and provide the
Client (Nutrition City), on a non-exclusive basis, such tasks or
activities that are considered contractible under existing laws, as
may be needed by the Client from time to time;
(b)
the Contractor shall employ the necessary personnel like helpers,
salesmen, and drivers who are determined by the Contractor to be
efficiently trained;
(c)
the Client may request replacement of the Contractor's personnel if
quality of the desired result is not achieved;
(d)
the Contractor's personnel will comply with the Client's policies,
rules, and regulations; and
(e)
the Contractor's two service vehicles and necessary equipment will
be utilized in carrying out the provisions of this Agreement.
When Newmark fired Nathaniel, he filed an illegal dismissal case against
the wealthier company, Nutrition City, Inc., alleging that he was a regular
employee of the same. Is Nathaniel correct? (2.5%)
SUGGESTED ANSWER:
Yes, Nathaniel is correct.
Similar to the case of Coca-Cola Bottlers
Philippines, Inc. v. Agito, (G.R. No. 179546, February 13, 2009), the lack of
control by the Contractor (Newmark) over the worker Nathaniel can be
gleaned from the Service Agreement. It is apparent that Newmark has to
comply with Nutrition City’s regulations, and that Nutrition City has the
right to request the replacement of Newmark’s personnel. It is likewise
apparent that the Agreement did not identify the work needed to be
performed and the final result to be accomplished, pointing to the
conclusion that Newmark did not obligate itself to perform an identifiable
job, work, or service.
Nathaniel, thus, was under the control of Nutrition
City.
With respect to the service vehicles and equipment, these may not be
considered as substantial capital on the part of Newmark, as the facts do
not establish their sufficiency to carry out the Agreement. The presence of
11
Newmark’s vehicles and equipment did not necessarily preclude the use of
Nutrition City’s own capital and assets.
ALTERNATIVE ANSWER:
Nathaniel’s contention is not correct. He is not a regular employee of
Nutrition but rather of Newmark Enterprises. Assuming that Newmark
has a DO 174 certification, this is a valid job contracting arrangement
especially so that the Newmark has sufficient capitalization in the form of
tools, equipment, machineries xxx and that Nutrition has no control over
the manner and means by which Newmark and its employees are to do the
work.
IX
Sgt. Nemesis was a detachment non-commissioned officer of the Armed
Forces of the Philippines in Nueva Ecija. He and some other members of his
detachment sought permission from their Company Commander for an
overnight pass to Nueva Vizcaya to settle some important matters. The
Company Commander orally approved their request and allowed them to
carry their firearms as the place they were going to was classified as a "critical
place." They arrived at the place past midnight; and as they were alighting
from a tricycle, one of his companions accidentally dropped his rifle, which
fired a single shot, and in the process hit Sgt. Nemesis fatally. The shooting
was purely accidental. At the time of his death, he was still legally married to
Nelda, but had been separated de facto from her for 17 years. For the last 15
years of his life, he was living in with Narda, with whom he has two minor
children. Since Narda works as a kasambahay, the two children lived with their
grandparents, who provided their daily support. Sgt. Nemesis and Narda only
sent money to them every year to pay for their school tuition.
Nelda and Narda, both for themselves and the latter, also on behalf of her
minor children, separately filed claims for compensation as a result of the death
of Sgt. Nemesis. The line of Duty Board of the AFP declared Sgt. Nemesis'
death to have been "in line of duty", and recommended that all benefits due to
Sgt. Nemesis be given to his dependents. However, the claims were denied by
GSIS because Sgt. Nemesis was not in his workplace nor performing his duty
as a soldier of the Philippine Army when he died.
(a)
Are the dependents of Sgt. Nemesis entitled to compensation as a
result of his death? (2.5%)
SUGGESTED ANSWER:
(a)
The death of Sgt. Nemesis arose out of and in the course of his
employment as a soldier on active duty in the AFP and hence,
12
compensable. The concept of a “workplace” cannot always be
literally applied to a soldier on active duty. Sgt. Nemesis had
permission to go to Nueva Vizcaya and he and his companions
had permit to carry their firearms which they could use to
defend themselves when attacked. A soldier on active duty is
really on duty 24 hours a day since he can be called upon
anytime by his superiors, except when he is on vacation leave
status, which Sgt. Nemesis was not, at the time of his death
(Hinoguin v. ECC, G.R. No. 8430, April 17, 1989).
(b)
As between Nelda and Narda, who should be entitled to the
benefits? (2.5%)
SUGGESTED ANSWER:
(b)
To be considered as a beneficiary, the spouse must be the legal
spouse and living with the employee at the time of his death.
Nelda, as the surviving spouse who has been separated de facto
from the deceased employee, may still however be entitled if
the
separation
was
due
to
the
covered
employee’s
abandonment of the spouse without valid reason, or for other
justifiable reasons.
Narda, not being a legitimate spouse, is
not entitled to the benefits; however, the ECC may act as
referee and arbitrator between two (2) claimants to help each
other reach a mutually acceptable compromise settlement of
allocating the compensation among themselves and their
dependent children (Samar Mining Co. Inc. v. WCC, G.R. No.
L-29938-39, March 31, 1971).
(c)
Are the minor children entitled to the benefits considering that they
were not fully dependent on Sgt. Nemesis for support? (2.5%)
SUGGESTED ANSWER:
(c)
Being a dependent does not mean absolute dependency for the
necessities of life, but rather, that the claimant looked up to
and relied on the contribution of the covered employee for his
13
means of living as determined by his position in life. One need
not be in the deceased’s household in order to be a dependent.
(Malate Taxicab v. Del Villar G.R. No. L-7489, Feb. 29, 1956).
X
Nonato had been continuously employed and deployed as a seaman who
performed services that were necessary and desirable to the business of NTrain Shipping, through its local agent, Narita Maritime Services (Agency), in
accordance with the 2010 Philippine Overseas Employment Administration
Standard Employment Contract (2010 POEA-SEC). Nonato's last contract (for
five months) expired on November 15, 2016. Nonato was then repatriated due
to a "finished contract." He immediately reported to the Agency and
complained that he had been experiencing dizziness, weakness, and difficulty in
breathing. The Agency referred him to Dr. Neri, who examined, treated, and
prescribed him with medications. After a few months of treatment and
consultations, Nonato was declared fit to resume work as a seaman. Nonato
went back to the Agency to ask for re-deployment but the Agency rejected his
application. Nonato filed an illegal dismissal case against the Agency and its
principal, with a claim for total disability benefits based on the ailments that he
developed on board N- Train Shipping vessels. The claim was based on the
certification of his own physician, Dr. Nunez, that he was unfit for sea duties
because of his hypertension and diabetes.
(a)
Was Nonato a regular employee of N-Train Shipping? (2.5%)
SUGGESTED ANSWER:
(a)
No. Seafarers are considered contractual employees. They
cannot be considered as regular employees under Article 280
of the Labor Code. Their employment is governed by the
contracts they sign every time they are hired or rehired and
their employment is terminated when the contract expires.
Their employment is contractually fixed for a certain period of
time (Millares v. NLRC, G.R. No. 110524, July 29, 2002).
(a)
Can Nonato successfully claim disability benefits against N-Train
Shipping and its agent Narita Maritime Services? (2.5%)
SUGGESTED ANSWER:
(b)
No. Nonato was repatriated due to a finished contract and not
due to any accident or illness he suffered while on board NTrain's vessel. Moreover, Nonato was declared fit-to-work by
14
the company-designated physician. Under the 2010 POEASEC, if a doctor appointed by the seafarer disagrees with the
assessment of the company-designated physician, a third
doctor may be agreed upon jointly between the employer and
the seafarer. The third doctor’s decision shall be final and
binding on both parties. In this case, no third doctor was
appointed. Thus, the fit-to-work assessment by the companydesignated physician stands.
ALTERNATIVE EXPLANATION:
(b)
No, Nonato cannot claim disability benefits. He was not
medically repatriated but repatriated due to a “finished
contract”. Although the seafarer is repatriated for completion
of his contract, however, if it can be shown by substantial
evidence that he acquired his illness during the term of his
contract or that his work conditions caused or at least
increased the risk of contracting the disease, then his illness is
compensable as it is work-connected (MallariMagat v.
Interorient Maritime Enterprises, Inc. G.R. No. 232892, April 4,
2018).
XI
Your favorite relative, Tita Nilda, approaches you and seeks your advice
on her treatment of her kasambahay, Noray. Tita Nilda shows you a document
called a "Contract of Engagement" for your review. Under the Contract of
Engagement, Noray shall be entitled to a rest day every week, provided that she
may be requested to work on a rest day if Tita Nilda should need her services
that day. Tita Nilda also claims that this Contract of Engagement should
embody all terms and conditions of Noray's work as the engagement of a
kasambahay is a private matter and should not be regulated by the State.
(a)
Is Tita Nilda correct in saying that this is a private matter and
should not be regulated by the State? (2.5%)
SUGGESTED ANSWER:
(a)
Tita Nilda is incorrect. The relationship between Tita Nilda
and Noray is an employer-employee arrangement that is
15
regulated by the police power of the State. Through the Batas
Kasambahay (R.A. 10361), the State recognizes this employment
relationship and establishes minimum labor standards for
domestic workers, toward decent employment and income,
enhanced coverage of social protection and respect for human
rights, and strengthened social dialogue.
Also, since domestic
workers are generally working women in vulnerable working
conditions, the State regulates domestic worker employment to
prevent abuse and exploitation and uphold the gender rights of
domestic workers.
(b)
Is the stipulation that she may be requested to work on a rest day
legal? (2.5%)
SUGGESTED ANSWER:
(b)
Yes.
Such a stipulation is legal as it states that Noray may
only be “requested” to work on a rest day, thereby recognizing
that the consent of Noray is needed in order to waive her right
to a weekly rest day.
Section 21 of the Kasambahay Law
allows both the employer and domestic worker to agree on
certain arrangements to offset, waive, or accumulate rest days,
subject to payment of appropriate wages and benefits.
(c)
Are stay-in family drivers included under the Kasambahay Law?
(2.5%)
SUGGESTED ANSWER:
(c)
No. Family drivers are not included under the Kasambahay
Law. A “Kasambahay” refers to any person engaged in
domestic work within an employment relationship such as, but
not limited to, the following: general househelp, nursemaid or
“yaya”, cook, gardener, or laundry person, but shall exclude
any person who performs domestic work only occasionally or
sporadically and not on an occupational basis.
16
ALTERNATIVE ANSWER:
(c)
The Republic Act No. 10361 does not exclude family drivers
from the coverage of the Kasambahay law. It is only in the
Implementing Rules that the family drivers were excluded.
Note that the Labor Code explicitly includes “family drivers
and other persons in the personal service of another in the
coverage of the Labor Code, and hence, it is believed that the
family drivers should fall within the ambit of the Kasambahay
Law. The exclusion of driver in the Implementing Rules is
without basis.
Domestic helper or househelper or domestic servant
shall refer to any person, whether male or female, who renders
services in and about the employer’s home and which services
are usually necessary or desirable for the maintenance and
enjoyment thereof, and ministers exclusively to the personal
comfort and enjoyment of the employers’ family. Such
definition covers family drivers, domestic servants, laundry
women, yayas, gardeners, houseboys and other similar
househelps (Apex Mining Company, Inc. v. NLRC, 196 SCRA
251 [1991]).
XII
Nena worked as an Executive Assistant for Nesting, CEO of Nordic
Corporation. One day, Nesting called Nena into his office and showed her lewd
pictures of women in seductive poses which Nena found offensive. Nena
complained before the General Manager who, in turn, investigated the matter
and recommended the dismissal of Nesting to the Board of Directors. Before
the Board of Directors, Nesting argued, that since the Anti-Sexual Harassment
Law requires the existence of "sexual favors," he should not be dismissed from
the service since he did not ask for any sexual favor from Nena. Is Nesting
correct? (2.5%)
SUGGESTED ANSWER:
Nesting’s argument on lack of sexual favor is incorrect. While his
actions require further proof of being a “sexual favor” in terms of criminal
liability under RA 7877, he may still be held liable under the just causes of
termination in Article 297 of the Labor Code. In Villarama v. NLRC and
17
Golden Donuts, (G.R. No. 106341, September 2, 1994), the Supreme Court
held that a managerial employee is bound by more exacting work ethics,
with a high standard of responsibility. Sexual harassment of a subordinate
amounts to “moral perversity” which provides a justifiable ground for
dismissal due to lack of trust and confidence.
ALTERNATIVE ANSWER:
Nesting is not correct. Section 3 paragraph a in relation to paragraph
(b) states of
RA 7877 states: “[I]n a work-related or employment
environment, it is committed when sexual harassment results in an
intimidating hostile or offensive environment for the employee.
In
Philippines Aeolus Automative United Corp. v. NLRC, (G.R. 124617, April
28, 2000), the Supreme Court ruled that the gravamen of the offense in
sexual harassment is not the violation of the employee’s sexuality but the
abuse of power by the employer.
In the Rayala case, (G.R. No. 155831,
February 18, 2008), sexual harassment was said to be an imposition of
misplaced superiority. The fact that no sexual favor was asked by Nesting
does not mean he did not violate R.A. 7877. His act of showing lewd
pictures to a subordinates is clearly sexual harassment.
ANOTHER ALTERNATIVE ANSWER:
Nesting is not correct. In a work-related or employment
environment, sexual harassment is committed when Nesting, who is the
boss of Nena, showed her nude pictures of women in seductive poses,
because said act resulted in an intimdating, hostile or offensive
environment for Nena (Sec 3 (a) (3), RA 7877; Domingo v. Rogelio I.
Rayala, GR. No. 155831, Feb 18, 2008).
XIII
Nicodemus was employed as a computer programmer by Network
Corporation, a telecommunications firm. He has been coming to work in short
and sneakers, in violation of the "prescribed uniform policy" based on company
rules and regulations. The company human resources manager wrote him a
letter, giving him 10 days to comply with the company uniform policy.
18
Nicodemus asserted that wearing shorts and sneakers made him more
productive, and cited his above-average output. When he came to work still in
violation of the uniform policy, the company sent him a letter of termination
of employment. Nicodemus filed an illegal dismissal case. The Labor Arbiter
ruled in favor of Nicodemus and ordered his reinstatement with backwages.
Network Corporation, however, refused to reinstate him. The NLRC 1st
Division sustained the Labor Arbiter's judgment. Network Corporation still
refused to reinstate Nicodemus. Eventually, the Court of Appeals reversed the
decision of the NLRC and ruled that the dismissal was valid. Despite the
reversal, Nicodemus still filed a motion for execution with respect to his
accrued backwages.
(a)
Were there valid legal grounds to dismiss Nicodemus from his
employment?2.5%)
SUGGESTED ANSWER:
(a)
Yes. Nicodemus clearly committed willful disobedience of
lawful orders issued by the Network Corporation, with respect
to the uniform policy. This is a ground for termination under
Article 288(a) of the Labor Code.
ALTERNATIVE ANSWER:
(a)
The “dismissal too harsh” doctrine may be invoked which
means the illegal dismissal case filed by Nicodemus may
prosper. It may be argued that the “uniform policy” need not
warrant dismissal as penalty for violation, as it may have no
direct bearing on company operations. This is in the context of
Nicodemus’ above-average performance as an employee.
(b)
Should Nicodemus' motion for execution be granted? (2.5%)
SUGGESTED ANSWER:
(b)
Yes. In Garcia v. Philippine Airlines, Inc.,( G.R. No. 164856,
January 20, 2009), the employer who did not reinstate an
employee pending appeal may be held liable for wages of the
dismissed employee covering the period from the time he was
ordered reinstated by the Labor Arbiter to the reversal of the
NLRC’s decision by the Court of Appeals.
19
XIV
Nelson complained before the DOLE Regional Office about Needy
Corporation's failure to pay his wage increase amounting to PhP5,000.00as
mandated in a Wage Order issued by the Regional Tripartite Wages and
Productivity Board. Consequently, Nelson asked the DOLE to immediately
issue an Order sustaining his money claim. To his surprise, he received a notice
from the DOLE to appear before the Regional Director for purposes of
conciliating the dispute between him and Needy Corporation. When
conciliation before the Regional Director failed, the latter proceeded to direct
both parties to submit their respective position papers in relation to the dispute.
Needy Corporation argued, that since Nelson was willing to settle for 75% of
his money claim during conciliation proceedings, only a maximum of 75% of
the said money claim may be awarded to him.
(a)
Was DOLE's action to conduct mandatory conciliation in light of
Nelson's complaint valid? (2.5%)
SUGGESTED ANSWER:
(a)
Yes.
In relation to R.A. 10396 or the “Mandatory
Conciliation-Mediation Law”, Article 234 of the Labor Code
provides that “all issues arising from labor and employment
shall be subject to mandatory conciliation-mediation.
The
Labor Arbiter or appropriate DOLE agency or office that has
jurisdiction over the dispute shall entertain only endorsed or
referred cases by the duly authorized officer.”
(b)
Should the Regional Director sustain Needy Corporation's
argument? (2.5%)
SUGGESTED ANSWER:
(b)
No. Article 239 of the Labor Code provides that the
information and statements given in confidence at the
conciliation-mediation
proceedings
shall
be
treated
as
privileged communication and shall not be used as evidence in
any arbitration proceeding, except when there is a waiver of
confidentiality. In the present case, Nelson’s willingness to
settle for 75% of his money claim may not be used against him
in the money claims case before the Regional Director due to
the confidentiality rule.
20
XV
Nexturn Corporation employed Nini and Nono, whose tasks involved
directing and supervising rank-and-file employees engaged in company
operations. Nini and Nono are required to ensure that such employees obey
company rules and regulations, and recommend to the company's Human
Resources Department any required disciplinary action against erring
employees. In Nexturn Corporation, there are two independent unions,
representing rank-and-file and supervisory employees, respectively.
(a)
May Nini and Nono join a union? (2.5%)
SUGGESTED ANSWER:
(a)
Yes. Nini and Nono, in effect, are supervisors as defined under
Article 219(m) who may join a supervisory union pursuant to
Article 255 of the Labor Code.
ALTERNATIVE ANSWER:
(a)
No. Nini and Nono are confidential employees as they have
access to confidential labor relations information. The broad
rationale behind this rule is that employees should not be
placed in a position involving a potential conflict of interest
(San Miguel Corp. Supervisors and Exempt Employees Union v.
Laguesma, 277 SCRA 370 [1997]).
(b)
May the two unions be affiliated with the same Union Federation?
(2.5%)
SUGGESTED ANSWER:
(b)
Yes. Article 255, as amended by Republic Act 9481, allows a
rank-and-file union and a supervisors’ union operating within
the same establishment to join one and the same federation or
national union as affiliates thereof.
XVI
Nagrab Union and Nagrab Corporation have an existing CBA which
contains the following provision: "New employees within the coverage of the
bargaining unit who may be regularly employed shall become members of
Nagrab Union. Membership in good standing with the Nagrab Union is a
21
requirement for continued employment with Nagrab Corporation." Nagrab
Corporation subsequently acquired all the assets and rights of Nuber
Corporation and absorbed all of the latter's employees. Nagrab Union
immediately demanded enforcement of the above-stated CBA provision with
respect to the absorbed employees. Nagrab Corporation refused on the ground
that this should not apply to the absorbed employees who were former
employees of another corporation whose assets and rights it had acquired.
(a)
Was Nagrab Corporation correct in refusing to enforce the CBA
provision with respect to the absorbed employees? (2.5%)
May a newly-regularized employee of Nagrab Corporation (who is
not part of the absorbed employees) refuse to join Nagrab Union?
SUGGESTED ANSWER:
(a)
Nagrab Corporation’s argument that the union security clause
should not apply to absorbed employees resulting from the
acquisition is untenable. In BPI Employees Union-Davao CityFUBU (BPIEU-Davao City-FUBU) v. Bank of the Philippine
Islands, (G.R. No. 174912, July 24, 2013), the Supreme Court
ruled that the subject union security clause does not make a
distinction as to how a regular employee should attain such
status as a “new employee” in order to be covered by the
clause.
Absorbed employees as a result of merger or
acquisition of assets and rights between two corporations,
therefore, should be considered as “new employees” of the
surviving or acquiring corporation.
(b)
How would you advise the human resources manager of Nagrab
Corporation to proceed? (2.5%)
SUGGESTED ANSWER:
(b)
The HR Manager should heed the Supreme Court’s
proscription in Alabang Country Club, Inc. v. NLRC, (G.R. No.
170287, February 14, 2008), in cases involving termination of
employment due to enforcement of a union security clause.
The following requirements must be observed:
1)
The union security clause is applicable;
2)
The
certified
bargaining
agent
enforcement of such clause; and
22
is
requesting
for
3)
There is sufficient evidence to support the sole and
exclusive bargaining agent’s decision to expel the
employee from membership.
XVII
Upon compliance with the legal requirements on the conduct of a strike,
Navarra Union staged a strike against Newfound Corporation on account of a
collective bargaining deadlock. During the strike, some members of Navarra
Union broke the windows and punctured the tires of the company-owned buses.
The Secretary of Labor and Employment assumed jurisdiction over the dispute.
(a)
Should all striking employees be admitted back to work upon the
assumption of jurisdiction by the Secretary of Labor and
Employment? Will these include striking employees who damaged
company properties? (2.5%)
SUGGESTED ANSWER:
(a)
Yes. Under Article 278(g) of the Labor Code, all striking
employees shall immediately return to work and the employer
shall immediately resume operations and re-admit all workers
under the same terms and conditions prevailing before the
strike or lockout.
Regarding the striking union members who damaged
company property, the employer should still reinstate them,
but after their reinstatement, the employer may institute the
appropriate disciplinary proceedings, or raise the matter on
the illegality of the strike on the ground of violence and illegal
acts committed during the strike before the Secretary of Labor
and Employment assumed jurisdiction.
ALTERNATIVE ANSWER:
(a)
Yes, all striking employees should be admitted to work upon
assumption of jurisdiction by the Secretary of DOLE. The
mere issuance of an assumption order by the Secretary
automatically carries with it a return-to-work order, even if
the directive to return to work is not expressly stated in the
23
assumption order (Telefunken Semiconductors Employees
Union-FFW v Court of Appeals, 348 SCRA 565 [2000]).
(b)
May the company readmit strikers only by restoring them to the
payroll? (2.5%)
SUGGESTED ANSWER:
(b)
As a general rule the answer is no, as actual reinstatement is
envisioned by Article 278(g) of the Labor Code. The purpose
of the law is to bring back the workers to their original work
under the same terms and conditions prevailing before the
strike.
ALTERNATIVE ANSWER:
(b)
Yes, payroll reinstatement is acceptable, if there are
compelling reasons like in the Nuwhrain Dusit
Hotel case
(G.R. No. 163942, November 11, 2008) where the employees
were not physically reinstatement for they shaved their heads
bald, or in the UST v. NLRC case (G.R. No. 89920, October 18,
1990) where reinstatement was not possible because it was
already the middle of the semester.
XVIII
Nestor and Nadine have been living in for the last 10 years without the
benefit of marriage. Their union has produced four children. Nadine was three
months pregnant with her 5th child when Nestor left her for another woman.
When Nadine was eight months pregnant with her 5th child, she applied for
maternity leave benefits. Her employer refused on the ground that this was
already her 5th pregnancy and that she was only living in with the father of her
child, who is now in a relationship with another woman. When Nadine gave
birth, Nestor applied for paternity leave benefits. His employer also denied the
application on the same grounds that Nadine's employer denied her application.
24
(a)
Can Nadine's employer legally deny her claim for maternity
benefits? (2.5%) .
SUGGESTED ANSWER:
(a)
Yes, Nadine is not entitled to maternity benefits since it is only
available for the first four (4) deliveries or miscarriages. On
the other hand, her employer cannot refuse on the ground that
Nadine was only living in with her partner since a valid marriage is
not a condition for the grant of maternity leave benefits.
(b)
Can Nestor's employer legally deny his claim for paternity
benefits? (2.5%)
SUGGESTED ANSWER:
(b)
Yes, Nestor is not entitled to paternity benefits since it is only
available for the first four (4) deliveries or miscarriages of his
legitimate spouse with whom he is living with.
XIX
Northeast Airlines sent notices of transfer, without diminution in salary
or rank, to 50 ground crew personnel who were front-liners at Northeast
Airlines counters at the Ninoy Aquino International Airport (NAIA). The 50
employees were informed that they would be distributed to various airports in
Mindanao to anticipate robust passenger volume growth in the area. North
Union, representing rank-and-file employees, filed unfair labor practice and
illegal
dismissal cases before the NLRC, citing, among others, the
inconvenience of the 50 concerned employees and union discrimination, as 8 of
the 50 concerned ground crew personnel were union officers. Also, the Union
argued that Northeast Airlines could easily hire additional employees from
Mindanao to boost its ground operations in the Mindanao airports.
(a)
Will the transfer of the 50 ground crew personnel amount to illegal
dismissal? (2.5%)
25
SUGGESTED ANSWER:
(a)
Yes. The transfer of an employee is an exercise of a managerial
prerogative, which must be exercised without grave abuse of
discretion, bearing in mind the basic elements of justice and
fair play. Such transfer cannot be used as a subterfuge by the
employer to rid itself of an undesirable worker. In particular,
the employer must be able to show that the transfer is not
undesirable, inconvenient or prejudicial to the employee; nor
does it involve a demotion in rank or a diminution of his
salaries, privileges, and other benefits. Should the employer
fail to overcome this burden of proof, the employee’s transfer
shall be tantamount to constructive dismissal which exists
when an act of clear discrimination, insensibility or disdain by
an employer has become so unbearable to the employee,
leaving him with no option but to forego with his continued
employment (Best Wear Garments v. De Lemos, G.R. No.
191281, December 5, 2012).
In the present case, the impending transfer of 50
employees based in Luzon to Mindanao, allegedly borne out of
business necessity, is unreasonable and inconvenient to the
concerned employees and their families. It was not shown also
if Northeast Airlines looked into the option of hiring workers
from Mindanao to run its counters in the Mindanao airports.
ALTERNATIVE ANSWER:
(a)
No. As a management prerogative, the employer has the
inherent right to transfer or assign employees in the pursuance
of its legitimate business interest subject only to the condition
that it is not motivated by discrimination or bad faith (PT&T v.
Laplana, 199 SCRA 465 [1991]).
It is the prerogative of
management to transfer employees where they can be most
useful to the company (Pharmacia and UPDJOHN. Inc. [now
26
Pfizer Philippines, Inc] v. Albayda. Jr. G.R. No 172724, August
23, 2010).
The mere fact that it would be inconvenient does
not by itself make the transfer illegal (DSS Security v. NLRC,
325 SCRA 157 [2000]).
(b)
Will the unfair labor practice case prosper? (2.5%)
SUGGESTED ANSWER:
(b)
No.
In ascertaining whether Northeast Airlines’ proposed
transfer amounted to an unfair labor practice or interference
with, restraint or coercion of the employees’ exercise of their
right to self-organization, the “totality of conduct doctrine”
test should be applied, Insular Life Assurance Co., Ltd.
Employees Association-NATU v. Insular Life Assurance Co.,
Ltd., G.R. No. L-25291, January 30, 1971.
A finding of an
unfair labor practice should not be based on a single act in
isolation, but should be viewed on the basis of the employer’s
acts outside of the bigger context of the accompanying labor
relation situation. In the case at hand, Northeast Airlines’ act
of transferring the 50 employees, while it may amount to
constructive dismissals, cannot translate into an unfair labor
practice, absent any other indicia of anti-union bias on the part
of the Company.
XX
In Northern Lights Corporation, union members Nad, Ned, and Nod
sought permission from the company to distribute flyers with respect to a
weekend union activity. The company HR manager granted the request through
a text message sent to another union member, Norlyn.
While Nad, Ned, and Nod were distributing the flyers at the company
assembly plant, a company supervisor barged in and demanded that they cease
from distributing the flyers, stating that the assembly line employees were
trying to beat a production deadline and were thoroughly distracted. Norlyn
tried to show the HR manager's text message authorizing flyer distribution
during work hours, but the supervisor brushed it aside.
27
As a result, Nad, Ned, and Nod were suspended for violating
company rules on trespass and highly-limited union activities during work
hours. The Union filed an unfair labor practice (ULP) case before the NLRC for
union discrimination.
(a)
Will the ULP case filed by the Union prosper? (2.5%)
SUGGESTED ANSWER:
(a)
Yes. The supervisor of Nad, Ned and Nod directly interfered
with union activities and ultimately with the right to selforganization. Good faith can be ascribed to Nad, Ned and
Nod’s actions, as prior permission was obtained thru the HR
Manager who apparently failed to communicate such
permission to the plant supervisor.
ALTERNATIVE ANSWER:
(a)
No. Unfair labor practice refers to acts that violate the
workers’ right to organize. The prohibited acts are related to
the workers’ right to self-organization, and to the observance
of the collective bargaining agreement. Without this element,
the acts of the Northern Light Corporation in suspending Nad,
Ned and Nod for violating company rules (on trespass and
highly-limited activities during work hours), even if unfair, are
not unfair labor practices (General Santos Coca-Cola Plant
Free Workers Union-TUPAS v Coca-Cola Bottlers Phil. Inc., GR
No. 178647, February 13, 2009).
(b)
Assume the NLRC ruled in favor of the Union. The Labor Arbiter's
judgment included, among others, an award for moral and
exemplary damages at PhP50,000.00 each for Nad, Ned, and Nod.
Northern Lights Corporation argued that any award of damages
should be given to the Union, and not individually to its members.
Is Northern Lights Corporation correct? (2.5%)
SUGGESTED ANSWER:
(b)
No. In Digitel Telecommunications Philippines, Inc. v. Digitel
Employees Union (DEU), G.R. No. 184903-04, October 10, 2012,
the Supreme Court ruled that the award of moral and
28
exemplary damages in illegal dismissal cases (applicable to
suspension) resulting from unfair labor practices may be made
in individual or aggregate amounts. If the offended parties can
be identified, then damages may be awarded individually, such
as in the case at hand.
- NOTHING FOLLOWS -
29