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Charisma Nolasco
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LABOR LAW II – Atty. Charisma Nolasco
4. A casual employee who is hired for more than one year. 4. Rendering the employee unfit to continue working
for the employer
TERMINATION BY EMPLOYEE {SICO} 2. Willful Disobedience/Insubordination
1. Serious Misconduct; This should pertain to an unlawful and intentional
2. Insult or Unbearable Treatment; attitude; wrongful and perverse. There must also be
3. Commission of a Crime; a lawful order coming from the management, which
4. Other analogous causes. should have been made known to the employee.
Requisites:
Notes: 1. Disobedience or insubordination;
If there is a cause in terminating, the 30 day notice is 2. Wilful or intentional characterised by a
not required. wrongful and perverse attitude;
If there is no valid cause for the employee to sever 3. Order violated must be reasonable, lawful and
the employer-employee relationship, that is a case of made known to the employee;
resignation. 4. Pertain to duties which he has been engaged to
A resignation must be accepted by the employer. discharge;
Such that, if the resignation is later on accepted by
the employer, the employee cannot unilaterally 3. Gross and Habitual Neglect of Duty
withdraw his resignation. Negligence has to be grave and habitual
Gross negligence refers to want of care in the
TERMINATION BY EMPLOYER performance of one’s work or duty.
1. The grounds should either be just cause or authorized Habituality refers to repeated failure to perform one’s
causes; duty for a period of time.
2. There must be (a) Substantive Due Process and (b) One should take note all the infractions committed
Procedural Due Process by the employee during the period of his
employment. The offenses committed by him should
JUST CAUSES {Serious-Willful-GFCO} not be taken single and separately.
1. Serious Misconduct Requisites:
Transgression should be serious and grave; it should 1. Neglect of duty;
pertain to improper or wrongful conduct that 2. Gross and habitual in character
transgresses some established rules.
This should not pertain to mere error in judgment. 4. Fraud and Willful Breach of Trust
Misconduct must have reasonable relation to the Requisites:
work performed by the employee. It must show that 1. Act, omission or concealment;
the employee has become unfit to continue being an 2. Involving a breach of legal duty, trust or confidence
employee of the employer. justly reposed;
3. Committed against the employer or his/her
REQUISITES representative;
1. Misconduct 4. In connection with the employees work
2. Grave and aggravated in character
3. Relating to the performance of employee’s duties This is also known as Loss of Trust and Confidence.
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LABOR LAW II – Atty. Charisma Nolasco
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LABOR LAW II – Atty. Charisma Nolasco
1. Superfluous positions or services of employees; 4. No other option available than the introduction of
machinery or equipment and the consequent
2. In excess of what is reasonably demanded by the termination of the employee
actual requirements of the enterprise to operate
economically and efficiently; 5. Fair and reasonable criteria in selecting the employee
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LABOR LAW II – Atty. Charisma Nolasco
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LABOR LAW II – Atty. Charisma Nolasco
1. SEBA Certification
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LABOR LAW II – Atty. Charisma Nolasco
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LABOR LAW II – Atty. Charisma Nolasco
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LABOR LAW II – Atty. Charisma Nolasco
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LABOR LAW II – Atty. Charisma Nolasco
same is increased by working conditions. Is the serious and members may be terminated from employment
disease Rosa contracted during her trip to Africa because of the illegal strike. Explain your answer. (4%)
compensable? Explain your answer. 2.5%
SUGGESTED ANSWER:
In Government Service Insurance System vs. Besitan, G.R. The following are the effects of participation in an illegal
No. 178901, November 23, 2011, explained the concept of strike and commission of illegal acts during strike:
increased theory as follows: 1. Any union officer who knowingly participates in an illegal
Corollarily, for the sickness or resulting disability or death to strike; and
be compensable, the claimant must prove either (1) that the 2. Any worker or union officer who knowingly participates in
employee’s sickness was the result of an occupational the commission of illegal acts during a strike may be
disease listed under Annex “A” of the Amended Rules on declared to have lost his employment status; (Third
Employees’ Compensation, or (2) that the risk of contracting paragraph, Article 279 (a) [264 (a)], Labor Code)
the disease was increased by his working conditions.
Certainty is not required only probability B. A sympathetic strike is stoppage of work to make
Under the increased risk theory, there must be a reasonable common cause with other strikers in another establishment
proof that the employee’s working condition increased his or business. Is the sympathetic strike valid? Explain your
risk of contracting the disease, or that there is a connection answer. (1°k)
between his work and the cause of the disease. (Castor-
Garupa v. Employees’ Compensation Commission, G.R. No. The illegal stoppage of work by way of sympathetic strike
158268, April 12, 2006, 487 SCRA 171, 180) Only a has been settled in the case of Biflex Phils. Labor Union
reasonable proof of work-connection, not direct causal (NAFLU) v. Filflex Industrial and Manufacturing Cororation,
relation, however, is required to establish compensability of G.R. No. 155679, 19 December 2006, where it was ruled
a non-occupational disease. (Government Service Insurance that stoppage of work due to welga ng bayan is in the
System v. Cordero, G.R. Nos. 171378 & 171388, March 17, nature of a general strike, an extended sympathy strike. It
2009, 581 SCRA 633, 640) Probability, and not certainty, is affects numerous employers including those who do not
the yardstick in compensation proceedings; thus, any doubt have a dispute with their employees regarding their terms
should be interpreted in favor of the employees for whom and conditions of employment.Employees who have no
social legislations, like PD No. 626, were enacted. labor dispute with their employer but who, on a day they are
(Government Service Insurance System v. Corrales, G.R. No. scheduled to work, refuse to work and instead join a welga
166261, June 27, 2008, 556 SCRA 230, 243-244) ng bayan commit an illegal work stoppage. Even if
Applying the above ruling, Rosa must present a reasonable petitioners joining the welga ng bayan were considered
proof that her working condition increased his risk of merely as an exercise of their freedom of expression,
contracting the disease, or that there is a connection freedom of assembly or freedom to petition the government
between his work and the cause of the disease otherwise for redress of grievances, the exercise of such rights is not
the same is not compensable. absolute. For the protection of other significant state
interests such as the right of enterprises to reasonable
returns on investments, and to expansion and growth
9. A. Given that the liability for an illegal strike is individual, enshrined in the 1987 Constitution must also be considered,
not collective, state when the participating union officers otherwise, oppression or self-destruction of capital in order
to promote the interests of labor would be sanctioned. And it
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LABOR LAW II – Atty. Charisma Nolasco
would give imprimatur to workers joining assume jurisdiction? (2.5°k) (b) What are the consequences
demonstrations/rallies even before affording the employer of the assumption of jurisdiction by the Secretary of Labor,
an opportunity to make the necessary arrangements to and of the disobedience to the return to work? Explain your
counteract the implications of the work stoppage on the answer. (2.5%)
business, and ignore the novel principle of shared
responsibility between workers and employers aimed at Pursuant to Article 263 (g) [now 278 (g)], when a labor
fostering industrial peace. There being no showing that dispute causes or is likely to cause a strike or lockout in an
petitioners notified respondents of their intention, or that industry indispensable to the national interest, the Secretary
they were allowed by respondents, to join the welga ng of Labor and Employment may assume jurisdiction over the
bayan on October 24, 1990, their work stoppage is beyond dispute and decide it or certify the same to the National
legal protection. Labor Relations Commission (NLRC) for compulsory
arbitration. (Section 1, Operational Guidelines of
Department Order No. 40-G-03, Series of 2010, dated
10. Due to business recession, Ballistic Company retrenched February 24, 2011)
a part of its workforce. Opposing the retrenchment, some of For a valid exercise of the assumption of jurisdiction
the affected employees staged a strike. Eventually, the authority, any of the following conditions must be present:
retrenchment was found to be justified, and the strike was a. Both parties have requested the Secretary of Labor and
declared illegal; hence, the leaders of the strike, including Employment to assume jurisdiction over the labor dispute;
the retrenched employees, were declared to have lost their or
employment status. Are the striking retrenched employees b. After a conference called by the Office of the Secretary of
still entitled to separation pay under Sec. 298 (283) of the Labor and Employment on the propriety of the issuance of
Labor Code despite the illegality of their strike? Explain your the Assumption or Certification Order, motu proprio or upon
answer. (2%) a request or petition by either party to the labor dispute. In
the said conference. the parties shall also be encouraged to
The strikers including the union officers should be paid their amicably settle the dispute. (Section 2, Operational
separation pay by virtue of retrenchment notwithstanding Guidelines of Department Order No. 40-G-03, Series of 2010,
the illegal strike was declared illegal. The issue on dated February 24, 2011)
entitlement to separation pay due to authorized cause and
the ground for termination due to knowingly participating in B. What are the consequences of the assumption of
illegal strike are distinct and different. jurisdiction by the Secretary of Labor, and of the
disobedience to the return to work? Explain your answer.
(2.5%)
11. The consequences of assumption of jurisdiction are as
A. Pursuant to his power under Sec. 278(g) (263(g)) of the follows:
Labor Code, the Secretary of Labor assumed jurisdiction a. If a strike or lockout has not taken place, the parties are
over the 3-day old strike in Armor Steel Plates, Inc., one of enjoined to conduct any untoward action that may lead to a
the country's bigger manufacturers of steel plates, and strike or lockout.
ordered all the striking employees to return to work. The b. if a strike or lockout has already taken place, all striking
striking employees ignored the order to return to work. (a) and locked out workers shall, within twenty-four (24) hours
What conditions may justify the Secretary of Labor to from receipt of an Assumption or Certification Order,
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LABOR LAW II – Atty. Charisma Nolasco
immediately return to work and the employer shall Workers v. Inciong, G.R. No. 49983, 20 April 1982, 208 SCRA
immediately resume operations and readmit all workers 157, 165)
under the same terms and conditions prevailing before the
strike.
c. At any point in time, the parties are not prevented from 12. Marciano was hired as Chief Engineer on board the
submitting the dispute to Voluntary Arbitration with the vessel MN Australia. His contract of employment was for
Secretary of Labor and Employment or his/her duly nine months. After nine months, he was re-hired. He was
authorized representative as Voluntary Arbitrator or Panel of hired a third time after another nine months. He now claims
Voluntary Arbitrators. (Section 3, Operational Guidelines of entitlement to the benefits of a regular employee based on
Department Order No. 40-G-03, Series of 2010, dated his having performed tasks usually necessary and desirable
February 24, 2011) to the employer's business for a continuous period of more
While the consequence of disobedience to the return to work than one year. Is Marciano's claim tenable? Explain your
has been ruled in the case of Manila Hotel Employees answer. (3%)
Association v. Manila Hotel Corporation, G.R. No. 154591,
March 5, 2007. In holding that defiance of the assumption 13. Lazaro, an engineer, organized a union in Garantisado
order or a return-to work order by a striking employee, Construction Corporation (Garantisado) which has 200
whether a union officer or a member, is an illegal act and, employees. He immediately filed a Petition for Certification
therefore, a valid ground for loss of employment status. The Election, attaching thereto the signatures of 70 employees.
High Court explained: Garantisado vehemently opposed the petition, alleging that
The law explicitly prohibits such acts. 25 signatories are probationary employees, while 5 are
ART. 263. STRIKES, PICKETING, AND LOCKOUTS supervisors. It submitted the contracts of the 25
x x x x (omitted) probationary employees and the job description of the
ART. 264. PROHIBITED ACTIVITIES supervisors. It argued that if 30 is deducted from 70, it gives
(a) x x x x a balance of 40 valid signatures which is way below the
(omitted) minimum number of 50 signatories needed to meet the
alleged 25% requirement. If you are the Director of Labor
More to the point, the Court has consistently ruled in a long Relations, will you approve the holding of a Certification
line of cases spanning several decades that once the SOLE Election. Explain your answer. (5%)
assumes jurisdiction over a labor dispute, such jurisdiction
should not be interfered with by the application of the 14. Dion is an Accounting Supervisor in a trading company.
coercive processes of a strike or lockout. Defiance of the He has rendered exemplary service to the company for 20
assumption order or a return-to work order by a striking years. His co-employee and kumpadre, Mac, called him over
employee, whether a union officer or a member, is an illegal the phone and requested him to punch his (Mac's) daily time
act and, therefore, a valid ground for loss of employment card as he (Mac) was caught in a monstrous traffic jam. Dion
status. (Grand Boulevard Hotel v. Genuine Labor acceded to Mac's request but was later caught by the
Organization of Workers in Hotel, Restaurant and Allied Personnel Manager while punching. Mac's time card. The
Industries (GLOWHRAIN), G.R. No. 153664, 18 July 2003, 406 company terminated the employment of Dion on the ground
SCRA 688, 710; Telefunken Semiconductors Employees of misconduct. Is the dismissal valid and just? Explain. (5%)
Union-FFW v. Court of Appeals, G.R. Nos. 143013-14, 18
December 2000, 348 SCRA 565, 582; Federation of Free
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LABOR LAW II – Atty. Charisma Nolasco
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