2014 BAR
II.
I will advise Lucy to file a complaint for constructive dismissal, with
prayer for reinstatement, because her floating status has exceeded six
(6) months.
By virtue of the nature of her job, Lucy attained tenure on the first day
of her employment. As a regular employee, therefore, she could
only be dismissed for a just or authorized cause. Expiration of
her last contract was neither a just nor authorized cause. Hence,
she was illegally dismissed. Moreover, her term employment contracts
were contracts of adhesion; hence, they should be taken against
Hambergis Inc. because of its obvious intent to use periods to bar
her regularization.
V.
(A) Should the votes of the probationary and dismissed
employees be counted in the total votes cast for the purpose of
determining the winning labor union?
Yes. The segregated votes should be counted as valid votes.
The Law provides that all employees covered by appropriate bargaining
unit who have been in service for at least three months prior to the
filing of the petition, whether union members or not, are eligible to
vote, regardless of their employment status.Probationary employees are
qualified to vote because they also have substantial interest in the
selection of bargaining representative. Even dismissed employees
whose complaints for illegal dismissal have not yet been decided with
finality can vote because they still enjoy employee status.
(B) Was there a valid election?
Yes. To have a valid election, at least a majority of all eligible voters in
the unit must have cast their votes. In the instant case, 500 out of 600
rank-and-file employees voted.
(C) Should Union A be declared the winner?
No. The Labor Code provides that the Labor Union receiving the
majority of the valid votes cast shall be certified as the exclusive
bargaining agent of all the workers in the unit (Article 256, now Article
266, of the Labor Code). Here, the number of valid votes cast is 490;
thus, the winning union should receive at least 246 votes. Union A only
received 200 votes.
(D) Suppose the election is declared invalid, which of the
contending unions should represent the rank-and-file employees?
None of the participating unions can represent the rank-and-file
employees for purposes of collective bargaining because none of them
enjoys majority representative status.
(E) Suppose that in the election, the unions obtained the following
votes: A-250; B-150; C-50; 40 voted “no union”; and 10 were
segregated votes. Should Union A be certified as the bargaining
representative?
Yes. The Labor Code provides that the Labor Union receiving the
majority of the valid votes cast shall be certified as the exclusive
bargaining agent of all the workers in the unit (Article 256, now Article
266, of the Labor Code). Here, the number of valid votes cast is 490.
Thus, the winning union should receive at least 246 votes; Union A
received 250 votes.
VIII
(A) Can Lazo Corporation refuse to admit the strikers?
NO. Lazo Corporation cannot refuse to admit all the strikers.
Participants in a lawful strike generally have the right to reinstatement
to their positions upon the termination of the strike. However, the Labor
Code provides that any worker or union officer who knowingly
participates in the commission of illegal acts during a strike may be
deemed to have lost his employment status.
(B) Assuming the company admits the strikers, can it later on dismiss
those employees who committed illegal acts?
NO. The employer may be considered as having waived its right to
dismiss employees who committed illegal acts during the strike
(Reformist Union of R.B. Liner v. NLRC, 266 SCRA 713).
Alternative answer:
After admission, the company can hold the strikers behind the
illegalities accountable for their acts. If found to have committed
acts justifying a dismissal, said employees can be terminated after due
process.
(C) If due to prolonged strike, Lazo Corporation hired replacements, can
it refuse to admit the replaced strikers?
NO. Sec. 3, Art. XIII of the Constitution guarantees workers the right to
strike in accordance with law, and prolonged strike is not prohibited by
law. With Art. 212 (o) defining strike as “any temporary stoppage of
work as a result of an industrial or labor dispute, it is the prerogative of
strikers to cut short or prolong a strike. By striking, the employees have
not abandoned their employment. Rather, they have only ceased
temporarily from rendering work. The striking employees have not lost
their right to go back to their positions, because the declaration of a
strike is not a renunciation of their employment, much less their
employee- employer relationship.
IX
I would declare the chambermaids to have been illegally dismissed. The
chambermaids are regular employees for performing work necessary or
desirable to the main trade of the Luisa Court. As such, they enjoy
security of tenure. The Labor Code considers as unfair labor practice on
the part of Luisa Court its “contracting out the services or functions
being performed by union members”. Luisa Court's abolition and act of
outsourcing the chambermaids' position are clearly acts of illegal
dismissal.
X
I will dismiss the complaint for illegal dismissal. Luisa's dismissal is not
illegal, for it has been held that failure to observe prescribed standards
of work, or to fulfill reasonable work assignments due to inefficiency, as
in this case, may constitute just cause for dismissal. (Iluminada, Buiser,
et. al. v. Leogardo, Jr., 131 SCRA 151 (1969)] Nonetheless, the
employer's failure to comply with the procedure prescribed by law in
terminating the services of the employee warrants the payment of
nominal damages of Php30,000.00, in accordance with the Supreme
Court's ruling in the case of Agabon v. NLRC
XV
Yes, OLPCS-TELU is a legitimate labor organization. Its mixed-
membership which includes supervisors and rank-and-filers does not
affect its legitimacy. The only effect of such membership is that the
supervisors in the persons of vice-principals and department heads
are deemed automatically removed
XVI BYSTANDER PRINCIPLE
No. Under Article 258-A of the Labor Code, an employer is a mere
bystander in certification elections, whether the petition for certification
election is filed by said employer or a legitimate labor organization. The
employer shall not be considered a party thereto with a concomitant
right to oppose a petition for certification election.
XVIII
PROCEDURAL REQUIREMENTS OF A VALID STRIKE INCLUDE:
Notice of Intent. Filing of Notice of Intent to Strike with the NCMB.
Cooling-off Period.- Observance of Cooling-off Period.
(a) ULP - 15 days before intended date of strike
(b) Bargaining Deadlock - 30 days before intended date of strike.
Strike Vote and Filing of the same with the NCMB and the observance of
the seven (7) days strike ban.
XIX
I will deny the motion to dismiss.
Lionel is not a corporate officer but a corporate employee only
because:
(a) his office is not a creation of the Corporation Code;
(b) it is not shown that his office is a corporate position under Liberty’s
Articles of Incorporation; and
(c) it is not shown that there is a board resolution investing his position
with the status of a corporate office.
Absent corporate controversy, the Office of the Labor Arbiter
has jurisdiction to hear and resolve Lionel’s complaint for illegal
dismissal.
XXI
I will decide in favor of the employees. The fire has not resulted in
complete destruction of employer-employee relationship. Said
relationship has temporarily ceased only. When J KL resumed
operations, therefore, it became its obligation to recall its old employees
instead of replacing them with new employees. Withholding of work
beyond six (6) months amounts to constructive dismissal. Hence,
I will order J KL to pay the complainants’ full backwages,
separation pay because their positions are occupied already,
nominal damages for non-observance by J KL of prescribed pre-
termination procedure, moral and exemplary damages for its bad faith,
and 10% attorney’s fees for compelling its employees to litigate against
it (Art. 111, LC).
XXIII
I will not issue a TRO. The dispute brought to the RTC is a labor dispute
despite the fact that the disputants may not stand in the proximate
relation of employer and employee (Art. 212, LC). Moreover, the issue
of regularization is resolvable solely thru the application of labor laws.
Under both Reasonable Causal Connection Rule and Reference to Labor
Law Rule, the dispute is for labor tribunals to resolve. For lack of
jurisdiction, therefore, I will dismiss the case.
XXIV
As to the first ground, crime to be a just cause for dismissal
must be against the employer, members of his immediate family
or representative (Article 288, LC, as renumbered). Since the potential
crime of Lanz is not against Lobinsons or its duly authorized
representatives, it cannot of itself justify his termination.
As to the second ground, Lanz’s dysfunctional conduct has made
the work environment at Lobinsons hostile as to adversely affect other
employees, like Lee. Therefore, he can be dismissed on the ground of
serious misconduct and loss of trust and confidence.
XXVI
A.
Yes, the action of Liwanag Corporation is valid.
The DOLE Secretary can assume jurisdiction in the event of a labor
dispute likely to result in a strike in an industry involving
national interest, like energy production (Art. 263(g); D.O. 40-H-
13). His AJ O, once duly served on the union, will produce an
injunctive effect. Hence, if ignored, the union’s strike would be illegal
even if it may have complied with pre-strike procedure. As a
consequence, Liwanag Corporation may declare all the strikers as
having lost their employment as a consequence of their intransigence
(Sarmiento v. Tuico, 27 J une 1988).
B.
The union may file a complaint for illegal lockout, with prayer for
immediate reinstatement. The refusal of Liwanag Corporation to
admit the strikers back is an illegal lockout because it is not
preceded by compliance with prescribed pre-lockout procedure. If
the lockout is unreasonably prolonged, the complaint may be
amended to charge constructive dismissal.
2015 BAR
VII.
As Labor Arbiter, I will decide the case in favor of Don Don. Given the
nature of Don Don’s work, which consist of activities usually or desirable
in the usual business of CALLHELP, Don Don should be considered a
regular employee.
CALLHELP’s termination of Don Don’s service in the guise of “poor
performance” is not valid. Whether for a probationary or regular
employee, the requisites of dismissal on that ground do not appear to
have been complied with by the employer here.
VIII
Yes. People Plus is a labor-only-contractor because it is not substantially
capitalized. Neither does it carry on an independent business in
which it uses its own investment in the form of tools, equipment,
machineries or work premises. Hence, it is just an agent or recruiter of
workers who perform work directly related to the trade of Star Crafts.
Since both the essential element and the conforming element of labor-
only contracting are present, Star Crafts becomes the employer of the
supplied worker.
As principal, Star Crafts will always be an employer in relation to the
workers supplied by its contractor. Its status as employer is either direct
or indirect depending on whether the contractor is legitimate or not.
Thus even if People Plus were a legitimate job contractor, still Star
Crafts will be treated as a statutory employer for purposes of paying the
workers’ unpaid wages and benefits.
IX
I will advise Din Din to sue her boss and the supermarket for illegal
dismissal. Din Din cannot be compelled to accept the promotion. Her
unsatisfactory evaluations as well as her boss’ insistence that she
should agree to the intended transfer to Visayas are badges of an abuse
of management prerogative. In Pfizer Inc. v. Velasco (G.R. No. 177467,
March 9, 2011, 645 SCRA 135), the Supreme Court held that the
managerial prerogative to transfer personnel must be exercised without
abuse of discretion, bearing in mind the basic elements of justice and
fair play. Hence, Din Din’s dismissal is illegal.
X.
No. The preventive suspension of Karina is not valid. The employer may
place an employee under preventive suspension if his/ her continued
employment would pose a serious and imminent threat to the life or
property of the employer or of his/her co-employees. These
requirements are not present here.
XI.
Matatag Insurance does not have to await the result of the criminal case
before exercising its prerogative to dismiss. Dismissal is not affected by
a criminal case. Under the Three-fold Liability Rule, a single act may
result in three liabilities, two of which are criminal and administrative.
To establish them, the evidence of the crime must amount to proof
beyond reasonable doubt; whereas, the evidence of the ground for
dismissal is substantial evidence only. In this regard, the company has
some basis already for withholding the trust it has reposed on its
manager. Hence, Rico’s convic tion need not precede the employee’s
dismissal.
XVI
A. Was AILU justified in declaring a strike without a strike vote and a
notice of strike? Why or why not?
No. Firstly, a Notice of Strike is always required by Art. 263(c) of
the Labor Code before a strike may be staged-be it grounded on
bargaining deadlock or unfair Labor Practice. Secondiy, the Supreme
Court already held in Sukothai that while AILU may not exhaust the 15-
day cooling-off period in case of dismissal from employment of its
officers who were duly elected in accordance with the Union constitution
and by-laws and the dismissal constitutes union busting and a threat to
AILU’s existence, still, Art. 263 (f) requires that a strike vote be
undertaken through a secret ballot and approved by a majority of the
total union membership in the bargaining unit. Devoid of a notice of
strike and a strike vote, AILU’s strike is therefore illegal.
B. Was the Secretary of Labor correct in declining to assume jurisdiction
over the dispute?
The refusal of the Secretary to assume jurisdiction is valid. Par. (g) of
Art. 263 (old) of the Labor Code leaves it to his sound discretion to
determine if national interest is involved. Assumption power is full and
complete. It is also plenary and discretionary (Philtranco Service
Enterprises, Inc. v. Philtranco Workers Union-AGLO, G.R. No. 180962,
February 26, 2014). Thus, if in his opinion national interest is not
involved, then the company cannot insist that he assume jurisdiction.
C. Was LB justified in terminating all those who were members of AILU
on the two grounds cited?
The company has to file a complaint for illegal strike first. Once the
strike is declared by final judgment to be illegal, it can dismiss the union
officers. As to members, their dismissal must be based on their having
committed illegalities on the occasion of their illegal strike. Since the
company prematurely and indiscriminately dismissed the AILU members
then their dismissal is illegal.
If dismissal is based on the unlawful acts of barricading to lock the AILU
members: Yes. Article 264 (a) of the Labor Code authorizes the
employer to declare the loss of employment status of “ANY WORKER” or
union officer who knowingly participates in the commission of illegal
acts during a strike.
XVII
A. Are LFEU’s claims correct? Explain.
LFEU’s claim that Libra Films committed ULP based on its violation of
the CBA is not correct. For violation of a CBA to constitute ULP, the
violation must be violation of its economic provisions. Moreover, said
violation must be gross and flagrant. Based on the allegation of the
union, what was violated was the maintenance of membership clause
which was a political or representational provision; hence, no ULP was
committed (BPI Employees Union-Davao City v. BPI, G.R. No. 164301,
August 10, 2010, 702 SCRA 42).
B. Distinguish between a “closed shop” clause and a “maintenance of
membership” clause.
In a “closed shop” clause, all employees are required to be members of
the union at the time of hiring. They too must remain members of good
standing during the period of employment as a condition of continued
employment. Maintenance of membership clause, on the other hand,
requires all employees who are union members at the time of the
execution of the CBA to maintain their membership of good standing, as
a condition of continued employment.
C. Distinguish between “union dues” and “agency fees.”
Union dues are union funds paid by union members, normally through
check-off by the employer on the basis of an individual written autho
rization duly signed by the employees pursuant to Art. 241. (o) of the
Labor Code. Agency fee, on the other hand, is a reasonable fee equi
valent to the dues and other fees paid by members of the recognized
collective bargaining agent. Art. 248(e) of the Labor Code mandates
that only non-union members who accept the benefits under the CBĄ
may be assessed agency fees. Their check-off authorization is not
required.
XIX
The Equity of the Incumbent rule has it that all existing federations or
national unions, possessing all qualifications of an LLO and none of the
grounds for CR cancellation, shall continue to maintain their existing
affiliates regardless of their location or industry to which they belong. In
case of dissociation, affiliates are not required to observe the one union-
one industry rule.
XX
A. The agreement is valid because the preferred mode of settling labor
disputes is through voluntary modes, like voluntary arbitration. The
agreement is consistent with Sec. 3, Art. XIII of the Constitution.
Moreover, Art. 262 of the Labor Code authorizes a voluntary arbitrator
to hear and decide by agreement of the parties, all other labor disputes.

B. (1) As counsel, I will advise the union to accede to the request of the
company. Besides being the constitutionally preferred mode of dispute
settlement, voluntary arbitration is less adversarial and more
expeditious.
(2) The advantages of voluntary arbitration are:
(a) the parties’ dispute is heard and resolved by a person whom both
parties have chosen as their judge; hence, likely to be impartial,
(b) if both parties are willing to submit their dispute, the decision is final
and binding on them in general by reason of their submission
agreement; and
(c) in the event of a challenge, the decision is elevated to the CA and
then to the SC, i.e., less one layer of appeal because the NLRC is out of
the way.
The disadvantages of voluntary arbitration are:
(a) in case of appeal by the employer to the CA, the monetary award
will not be secured with an appeal bond which Rule 43 of the Rules of
Court does not require; and
(b) in case of enforcement of judgment, the Voluntary Arbitrator has no
sheriff to enforce it.
The advantages of compulsory arbitration are:
(a) subject to pre-litigation mediation, a case can be initiated through
the filing of a verified complaint by a union member, unlike in voluntary
arbitration where the Voluntary Arbitrator acquires jurisdiction primarily
through a submission agreement. In a case where the company is
unwilling, the EBR (and only the EBR) may serve a notice to arbitrate;
hence, a union member may be left out in the process if the EBR does
not serve that notice; (b) a monetary award is secured with the
employer’s appeal bond; and (c) there is a system of restitution in
compulsory arbitration.
The disadvantages of compulsory arbitration are: (a). State interference
with the affairs of labor and management is maximized, disregarding
the inter-party nature of the relationship; and (b) the system of appeals
entails a longer process.
XXI
A. Is NNN’s remedy correct? Why or why not?
The NLRC has no jurisdiction. As to PNN, there is no employer-employee
relationship between itself and NNN; hence, the NLRC cannot hear and
resolve their dispute (Reasonable Causal Connection Rule). *As to Anya,
the injunctive power of the NLRC is ancillary in nature; hence, it
requires a principal case, which is absent. Besides, the dispute between
her and PNN is not resolvable solely through the application of the Labor
Code, other labor statutes; CBA or employment contract. (Reference to
Labor Law Rule)
B. What are the grounds for a labor injunction to issue?
The NLRC may issue an injunctive writ to enjoin an illegal activity. under
Art.264 (old) of the Labor Code; as an ancillary remedy to avoid
irreparable injury to the rights of a party in an ordinary labor dispute
pursuant to Rule X; 2011 NLRC Rules of Procedure, as amended; and to
correct the Labor Arbiter’s grave abuse of discretion pursuant to Rule
XII of the 2011 NLRC Rules of Procedure, as amended.
Moreover, for labor injunction to issue, it must be proven under Art. 218
(e), Labor Code:
i. that the prohibited or unlawful acts have been threatened and will be
committed and will be continued unless restrained;
ii. that substantial and irreparable injury to the complainant’s property
will follow;
iii. that greater injury, will be inflicted upon complainant by the denial of
relief than will be inflicted upon defendants by the granting of relief;
iv. that complainant has no adequate remedy at law; and
v. that public officers charged with the duty to protect complainant’s
property are unable or unwilling to furnish adequate protection.

C. Distinguish the jurisdiction of a Labor Arbiter from that of the NLRC.
As to jurisdiction, the LA can hear and resolve cases under Art. 217
(old) of the Labor Code, money claims under Sec. 7 of RA No. 10022;
and referred wage distortion disputes in unorganized establishments, as
well as the enforcement of compromise agreements pursuant to the
2011 NLRC Rules of Procedure, as amended. ‘On the other hand, the
NLRC reviews decisions rendered by the LA; decisions or orders
rendered by the RD under Art. 129 of the Labor Code; and conducts
compulsory arbitration in certified cases.
As to the power to issue a labor injunction, the NLRC can issue an
injunctive writ. On the other hand, the Labor Arbiter cannot issue an
injunctive writ.
XXII
A. As the Labor Arbiter assigned to this case, how would you resolve the
jurisdiction question.
The Labor Arbiter has jurisdiction over Carlo’s illegal dismissal complaint
as he was hired by Mario on a “salary and commission”. basis. In
Grepalife v. Judico (G.R. No. 73887, December 21. 1989, 180 SCRA
445) it was held that a worker who is paid on a salary plus commission
basis is an employee. While regular courts have jurisdiction over Mario’s
corporate act of severing ties with Carlo, the Labor Arbiter, pursuant to
Art. 217 A-(2) of the Labor Code, has jurisdiction over Carlo’s illegal
dismissal complaint.
B. What is the rule on personal liability of corporate officers for a
corporate act declared to be unlawful?
Corporate officers are not, as a general rule; personally liable for the
corporate acts they performed in behalf of the corporation they
represent. They are, however, personally liable for their corporate acts
if they acted with malice or bad faith (Girly Ico V. Systems Technology
Institute, Inc., G.R. No. 185100, July 9, 2014).
2016 BAR
IV VALID RETRENCHMENT
For a valid retrenchment, the following requisites must be
complied with: (a) the retrenchment is necessary to prevent losses and
such losses are proven; (b) written notice to the employees and to the
DOLE at least one month prior to the intended date of retrenchment;
(c) payment of separation pay equivalent to one-month pay or at least
one- half month pay for every year of service, whichever is higher;(d)
that the employer exercises its prerogative to retrench employees in
good faith for the advancement of its interest and not to defeat or
circumvent the employees' right to security of tenure; and (e) that the
employer used fair and reasonable criteria in ascertaining who would be
dismissed and who would be retained among the employees, such as
status (i.e., whether they are temporary, casual, regular or managerial
employees), efficiency, seniority, physical fitness, age, and financial
hardship for certain workers.
Jurisprudence also provides for the standards for the losses
which may justify retrenchment are: a) losses or expected losses should
be substantial; b) the expected losses must be reasonably imminent; c)
it must be necessary and likely to prevent the expected losses and; d)
the expected losses must be proved by sufficient and convincing
evidence.
V PICKET; ULP
A. The picket was illegal. The Labor Code provides that no person
engaged in picketing shall ... obstruct the free ingress to or egress from
the employer's premises for lawful purposes or obstruct public thorough
fares. In this case, the Union members blocked the ingress and egress
of customers and employees to the Hotel premises which resulted to
substantial losses. Such act makes the picket illegal.
The actions of all the union members in cropping or shaving their
head is deemed an illegal strike. In a case decided by the SC, it held
that the act of the Union was not merely an expression of their
grievance but an act designed to cause serious damage to the hotel's
grooming standards which resulted in the temporary cessation of the
hotel's operations. This should be considered as an illegal strike.
B. The Hotel is not guilty of ULP. Jurisprudence provides that the right
of the employer to dismiss its erring employees is a measure of self
protection. The employer has the prerogative to instill discipline in his
employees. This is inherent in its right to control and manage its
business effectively.
The Hotel did not violate the union’s right to freedom of
expression. The right to freedom of expression is not absolute; it is
subject to regulation so that it may not be injurious to the right of
another or to society. In this case, the union member's act of cropping
or shaving their heads caused substantial losses to the hotel caused by
the cessation of its operations. Hence, it was not a protected action.
VI. TWIN NOTICE AND HEARING RULE
A. The twin requirements of due process are notice and hearing to be
given to the worker. There is likewise a two- notice requirement rule,
with the first notice pertaining to specific causes or grounds for
termination and a directive to submit a written explanation within a
reasonable period. “The second notice pertains to notice of termination.
As to hearing, it is not mandatory, as long as the employee is given
ample opportunity to be heard.
B. NO, there is violation of procedural requirements for dismissal. The
notice given by Biyahe sa Langit Transport did not give Pedro a
minimum period lof five (5) days to submit a written explanation. He
was given only 48 hours to submit the same. There being a violation, of
procedural due process, Biyahesa Langit Transport becomes liable for
nominal damages even, assuming that there was a valid ground for
dismissa
IX. ILLEGAL DISMISSAL?
No. Zienna is authorized to dismiss its employees, but must pay
separation pay. The buyer Zandra, is not obliged to absorb the
employees affected by the sale, nor is it liable for the payment of their
claims. The most that Zandra may do, for reasons of public policy and
social justice, is to give preference is hiring to qualified separated
personnel of Zienna.
X. CERTIFICATION ELECTION
Yes, I will allow the certification election. The 25% consent requirement
is complied with since the 25% of 200 is 50. Out of the 70 signatories
only the supervisors should be excluded. The Labor Code provides that
supervisory employees are not eligible for membership in a Labor
organization of the rank-and-file. As to probationary employees, they
should be included because they also have substantial interest in the
selection of bargaining representative.
XI. VALID DISMISSAL
Yes. His act constituted dishonesty and serious misconduct which are
lawful grounds for dismissal under the Labor Code. As ground for
dismissal it must be serious and work connected. The act of Dion in
giving in to Mac’s request to punch the latter’s daily time card is both a
wrongful conduct and grave in character. Furthermore, the punching of
time card is undoubtedly work related. It signifies and records the
commencement of one’s work for the day. Thus, the dismissal is valid.
XII. TERMINATION
I will advise the President of SFH to terminate Amaya for violating her
probationary contract. Part of the standards of her employment is to
strictly follow the Code of Conduct of SFH. The act of defaming Dr.
Ligaya is certainly a misdemeanor that is usually not acceptable in any
work environment. With such attitude Amaya displayed, she cannot
pass the company standard of SFH.
I will not suggest the dismissal of Amaya under Article 297. Though she
displayed misconduct, the same is not work-related, as spreading a
rumor against a Doctor does not go into the duties and responsibilities
of a staff nurse.
XIII. ER-EE RELATIONSHIP
Yes. The elements to determine the existence of an employment
relationship are: (a) the selection and engagement of the employee; (b)
the payment of wages; (c) the employer's power to control the
employee's conduct; and (d) the power of dismissal.
The first element is present, as Matibay Shoe allowed shoe shine boys in
its shoe shine stand to render services that are desirable in the line of
business of Matibay Shoe. In issuing ID's to the shoe shine boys, the
same signifies that they can represent themselves as part of the work
force of Matibay Shoe.
The second element is also present. Requiring the customers to pay
through the Matibay Shoe's cashier signifies that their services were not
engaged by the customers. Equally important, it was Matibay Shoe
which gave the shoe shine boys their daily wage.
The third element is satisfied. Requiring the shoe shine boys to be
present from store opening until store closing and to follow company
rules on cleanliness and decorum shows that they cannot conduct their
activity anywhere else but inside the store of Matibay Shoe, hence, their
means and methods of accomplishing the desired services for the
customers of Matibay Shoe was controlled by it.
Lastly, the fourth element is made apparent when Matibay Shoe barred
the shoe shine boys from continuing with their work-related activity
inside its establishment.
XIV.
The position of Tess is meritorious. Art. 133 (2) of the Labor Code
provides that it shall he Unlawful for any employer to discharge a
woman on account of her pregnaucy, or while on leave or in
confinement due to her pregnancy. In the case at hand, the dismissal of
Tess was clearly on account of her absences related to her pregnancy.
XV. JEEPNEY
A. Jim's Motion to Dismiss must be denied. Although Jim and Nick
called their contract as a lease, it is actually a contract of employment,
and the rentals that Nick must pay to Jim is actually a boundary.
Jurisprudence provides that jeepney owners/operators exercise control
over jeepney drivers. The fact that the drivers do not receive fixed
wages but get only that in excess of the so-called boundary they pay to
the owner/operator does not affect the existence of employer-employee
relationship. Nick was engaged by Jim to perform activities which were
usually necessary or desirable to the business or trade of Jim which
makes him the employer of Nick.
B. Assuming that Nick is an employee of Jim, was Nick validly
dismissed?
Yes. For failing to remit five (5) months worth of boundary, Nick
apparently committed fraud against Jim. Fraud must be work connected
and committed against Er. In this case, Nick deprived Jim of revenue by
not remitting the boundary.
XVI. ATTORNEY FEES
A. The attorney's fees should be granted to Robbie. The LC
provides that in cases of unlawful withholding of wages, the
culpable party may be assessed attorneys fees equivalent to ten
percent of the amount of wages recovered.
B. It is now well-settled that legal interest may be imposed upon
any monetary awards by the SC
XVII.
A. Are the TMRs employees of Empire?
Yes. From the time Empire contracted the services of Style, both
engaged in labor-only contracting.In a case decided by the SC, it was
ruled that where any of the following elements is present, there is labor-
only contracting:
a) The contractor or subcontractor does not have substantial capital or
investment ; and (2) The contractor, does not exercise the right to
control over the performance of the work of the contractual employee.
B. Were the TMRs illegally dismissed by Wave?
No. As the TMRs are employees of Empire, Wave did not have
the power of dismissal; thus, even if Wave dismissed the TMRs
the same has no consequence.
xx.
A. Mario Brothers claims the 3 workers are project employees. It
explains that the agreement is, if the works contract is cancelled due to
the fault of the client, the period of employment is automatically
terminated. Is the contractor correct? Explain.
No. Jurisprudence provides the requirements to qualify an employment
as project-based: 1) employers claiming that their workers are project
employees should not only prove that the duration and scope of the
employment was specified at the time they were engaged, but also that
there was indeed a project; and 2) the termination of the project must
be reported by the employer to the DOLE Regional Office having
jurisdiction over the workplace within the period prescribed, and failure
to do so militates against the employer's claim of project employment.
This is true even outside the construction industry.
Mario Brothers failed to comply with both requirements; hence, Tristan,
Arthur and Jojo are its regular employees. The cancellation of its
contract with Axis did not result to the termination of employment of
Tristan, Arthur and Jojo.
B. Can Axis be made solidarily liable with Mario Brothers to pay the
unpaid wages and 13th month pay o f Tristan, Arthur, and Jojo?
Explain.
Yes, Axis can be made solidarily liable with Mario Brothers. Principals
are solidarily liable with their contractors for the wages and other
money benefits of their contractors' workers.
2017 BAR
IX
A. Give the characteristics of each category of employees, and state
whether the employees in each category may organized and form
unions. Explain your answer.
Under Article 255 [245] of the Labor Code the following are provided:
Managerial employees are not eligible to join, assist or form any labor
organization.
Supervisory employees shall not be eligible for membership in the
collective bargaining unit of the rank-and-file employees but may join,
assist or form separate collective bargaining units and/or legitimate
labor organizations of their own.
The rank-and-file union and the supervisors’ union operating within the
same establishment may join the same federation or national union.
B. May confidential employees who assist managerial employees, and
who act in a confidential capacity or have access to confidential matters
being handled by persons exercising managerial functions in the field of
labor relations form, or assist, or join labor unions? Explain your
answer?
No. Jurisprudence provides that confidential employees are prohibited to
join, form and assist any labor organization under the Labor Code. The
exclusion from bargaining units of employees who, in the normal course
of their duties, become aware of management policies relating to labor
relations is a principal objective sought to be accomplished by the
confidential employee rule.
X.
B. GROUNDS FOR TERMINATION BASED ON A JUST CAUSE AND
AUTHORIZED CAUSE
Dismissal for a just cause is founded on faults or misdeeds of the
employee. Separation pay, as a rule, will not be paid. Examples: serious
misconduct, willful disobedience, commission of crime, gross and
habitual neglect, fraud and other causes analogous to the foregoing.
(Art. 282, Labor Code).
Termination for authorized causes are based on business exigencies
or measures adopted by the employer, not constituting faults of the
employee. Payment of separation pay at varying amounts is required.
Examples: redundancy, closure, retrenchment, installation of labor
saving device and authorized cause. [Art. 283-284, Labor Code).
C. Procedure to be observed for validly terminating the services of an
employee based on a JUST CAUSE
a) A written notice must be served on the employee specifying the
ground or grounds for termination and giving him reasonable
opportunity within which to explain his side:
b) A hearing or conference shall be conducted during which the
employee concerned, with the assistance of counsel if he so desires, is
given an opportunity to respond to the charge, present his evidence or
rebut the evidence presented against him; and
c) A written notice of termination must be served on the employee
indicating that upon due consideration of all the circumstances, grounds
have been established to justify his termination.
AUTHORIZED CAUSE
For termination of employment based on AUTHORIZED CAUSES, the
requirements of due process shall be deemed complied with upon
service of a WRITTEN NOTICE to the employee and the appropriate
Regional Office of the Department of Labor & Employment at least thirty
(30) days before the effectivity of the termination specifying the ground
or grounds for termination.
XI.
A. SEBA Certification refers to the process by which a legitimate labor
union is recognized by the employer as the exclusive bargaining
representative or agent in a bargaining unit. Certification Election” or
Consent Election refers to the process of determining through secret
ballot the sole and exclusive representative of the employees in an
appropriate bargaining unit for purposes of collective bargaining or
negotiation. A certification election is ordered by the Department, while
a consent election is voluntarily agreed upon by the parties, with or
without the intervention by the Department.
B.
Marcel was not a corporate officer of Mercedes Corporation because his
position as Vice President for Finance and Administration was not
specifically mentioned in the roster of corporate officers in its corporate
by-laws.
C. State the jurisdiction of the Voluntary Arbitrator, or Panel of
Voluntary Arbitrators in labor disputes
The voluntary arbitrator or panel of voluntary arbitrators shall have
exclusive and original jurisdiction to hear and decide all unresolved
grievances arising from:
1. The implementation or interpretation of the collective bargaining
agreements;
2. The interpretation or enforcement of company personnel policies
which remain unresolved after exhaustion of the grievance procedure;
3. Wage distortion issues arising from the application of any wage
orders in organized establishments;
4. The interpretation and implementation of the productivity
incentive programs under RA 6971.
5. Upon agreement of the parties, shall also hear and decide all other
labor disputes including unfair labor practices and bargaining
deadlocks.
6. Violations of a Collective Bargaining Agreement, except those
which are gross in character, shall no longer be treated as unfair labor
practice and shall be resolved as grievances under the Collective
Bargaining Agreement.
XII
A. BACKWAGES
Mandarin Company cannot recover the backwages and other benefits
paid to Juanito pursuant to the decision of the Labor Arbiter despite the
reversal by the NLRC. The social justice principles of labor law outweigh
or render inapplicable the civil law doctrine of unjust enrichment.
C.
The employer’s act of terminating the employment of Gabriela is not
justified. There is no showing that said employee is sick with SARS, or
that she associated or had contact with the deceased nurse. They are
merely townmates. Furthermore, there is no certification by a
competent authority that the disease is of such a nature or such a stage
that it cannot be cured within a period of six months even with proper
medical treatment.
XIII A. TERMINATION DUE TO ILLEGAL STRIKE
The following are the effects of participation in an illegal strike and
commission of illegal acts during strike:
1. Any union officer who knowingly participates in an illegal strike; and
2. Any worker or union officer who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost
his employment status;
B. SYMPATHY STRIKE VS GENERAL STRIKE
In both a sympathy strike and in a general strike, there is a stoppage of
work by the concerted action of employees. In both kinds of strike, the
strike is not the result of a labor or industrial dispute.
As the name implies, workers go on a SYMPATHY STRIKE to show their
sympathy for certain workers who are on strike. On the other hand, in a
GENERAL STRIKE, workers in the country or in a region, province, or
city or municipality go on a strike to publicly protest a certain policy or
action taken by the government. Thus, for instance, a general strike
may be declared by workers to publicly protest the stand of President
Arroyo that she is against an increase of the minimum wage at this
time.
C. SEPARATION PAY
The strikers including the union officers should be paid their separation
pay by virtue of retrenchment notwithstanding the illegal strike was
declared illegal. The issue on entitlement to separation pay due to
authorized cause and the ground for termination due to knowingly
participating in illegal strike are distinct and different.
XIV
A. SECRETARY OF LABOR TO ASSUME JURISDICTION
Pursuant to Article 263 (g) [now 278 (g)], when a labor dispute causes
or is likely to cause a strike or lockout in an industry indispensable to
the national interest, the Secretary of Labor and Employment may
assume jurisdiction over the dispute and decide it or certify the same to
the National Labor Relations Commission.
B. CONSEQUENCES of the ASSUMPTION OF JURISDICTION by the
Secretary of Labor, and of the DISOBEDIENCE TO THE RETURN TO
WORK
once the SOLE assumes jurisdiction over a labor dispute, such
jurisdiction should not be interfered with by the application of the
coercive processes of a strike or lockout. Defiance of the assumption
order or a return-to work order by a striking employee, whether a union
officer or a member, is an illegal act and, therefore, a valid ground for
loss of employment status.
2018 BAR
A. Is Narciso entitled to retirement benefits? (2.5%)
Yes, Narciso is entitled to retirement benefits. A part-time lecturer, with
a fixed-term employment, who did not attain permanent status, is
entitled to retirement pay. This was ruled by the Supreme Court in De
La Salle Araneta University v. Bernardo, G. R. No. 190809, February 13,
2017 as follows: Republic Act No. 7641 states that "any employee may
be retired upon reaching the retirement age x x x;" and "[i]n case of
retirement, the employee shall be entitled to receive such retirement
benefits as he may have earned under existing laws and any collective
bargaining agreement and other agreements."
B. How should retirement pay be computed in the absence of any
contract between him and Norte University providing for such benefits?
For purposes of computing compulsory and optional retirement benefits
and to align the current retirement plan with the minimum standards of
Art. 287 of the Labor Code, as amended by R.A. 7641, and Sec. 5 (5.2)
of its implementing rules, “1/2 month salary” means 22.5 days salary,
exclusive of leave conversion benefits.
II.
A.
The motion should be denied. For purposes of filing a petition for
certification election, New Neuman Employees has legal personality
from the time it was issued with a charter certificate. This clear under
the Labor Code, which provides, The chapter shall acquire legal
personality only for purposes of filing a petition for certification election
from the date it was issued a charter certificate.
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?
Under Article 247 of the Labor Code, the following are the relevant
grounds for cancellation of union registration:
(a) Misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or amendments
thereto, the minutes of ratification, and the list of members who took
part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the
election of officers, minutes of the election of officers, and the list of
voters;
(c) Voluntary dissolution by the members.
Unless the employer can prove that any of the foregoing grounds are
present the petition for cancellation will not prosper.
III.
A.
Jurisdiction will depend on the amount being claimed by Nicanor’s
surviving spouse. If the amount exceeds Five Thousand Pesos
(PhP5,000.00) as provided in Article 224 (a [6]) of the Labor Code then
jurisdiction belongs to the Arbitration Branch of the NLRC. However, if
the amount did not exceed Five Thousand Pesos (PhP5,000.00) and
then jurisdiction belongs to the Regional Director under Article 129 of
the Labor Code involving recovery of wages, simple money claims and
other benefits.
B.
The action has not prescribed. This is because Nicanor’s surviving
spouse’s cause of action will accrue upon the categorical denial of the
claim. In this case, there was demand for its payment, however, the
management had promsied to pay as soon as it is able to pay off all
retrenched rank-and-file employees. However, it is was only after five
(5) years that the management was able to pay. Moreover, there was
no denial of the claim.
IV.
A.
Since this is a money claim involving the interpretation and
implementation of the CBA, the retrenched workerscan refer the matter
to the grievance machinery and if it remained unresolved within seven
(7) days from the date of its submission the same shall be automatically
referred to the voluntary arbitration prescribed in the CBA. In the
alternative it can be argued, that since this is a dispute between the
retrenched workers and the employer the same cannot be a subject
matter of grievance and voluntary arbitration. This is because only
disputes between the union and the company as ruled in Tabique v.
International Copra Export Corporation, G. R. No. 183335, December
23, 2009, shall be referred to grievance machinery or voluntary
arbitrators. Thus, the dispute should be resolved by way of mandatory
conciliation-mediation in accordance with Article 234 of the Labor Code.
B. Can the workers claim both separation pay and retirement benefits.
(2.5%)
Yes, the workers can claim both separation pay and retirement benefits.
This was settled rule in the case of Goodyear v. Marina Angus, G.R. No.
185499, 14 November 2014 where it was ruled that in the absence of
an 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 rights.
VI. to the employee, and (3) in connection with the duties which the
employee has been engaged to discharge.”
A.

Union Nana cannot be declared as the winner. This is because the said
union did not obtain the majority of the valid votes casts as provided
under Article 268 of the Labor Code.
B. The procedure in the Challenge of Votes provides as follows:
The ballot of the voter who has been property challenged during the
Pre-Election conferences, shall be placed in an envelope which shall be
sealed by the Election Officer in the presence of the voter and
therepresentatives of the contending unions. The election Officer shall
indicate on the envelope the voter’s name, the union challenging the
voter, and the ground for the challenged. The sealed envelope shall
then be signed by the Election Officer and the representatives of the
contending unions. The Election Officer shall note all
B.
A dismissed employee whose case was favorably decided by the Labor
Arbiter is entitled to receive wages pending appeal upon reinstatement,
which is immediately executory. Unless there is a restraining order, it is
ministerial upon the Labor Arbiter to implement the order of
reinstatement and it is mandatory on the employer to comply therewith.
XIV.
A. all issues arising from labor and employment shall be subject to
mandatory conciliation-mediation

challenges in the minutes of the election proceedings and shall have
custody of all envelops containing the challenged votes. The envelopes
shall be opened and the question of eligibility shall be passed upon by
the Mediator-Arbiter only if the number of segregated votes will
materially alter the results of the election. Applying the said procedure,
if the number of segregated votes will materially alter the results of the
election the next course of action with respect to the said challenged
votes is to open the said envelopes and the question of eligibility shall
be passed upon by the Mediator-Arbiter.
XV.
A.
Yes, Nini and Nono can join a union. This is clearly allowed under Article
255 of the Labor Code which provides in substance that supervisory
employees may join, assist or form separate collective bargaining units
and/or legitimate labor organizations of their own

VIII.
B.
Nathaniel is a regular employee. UND
Yes, the two unions can be affiliated with the same Union Federation.
XII. This is clearly allowed under Article 255 of the Labor Code which
Contrary to Nesting’s claim, it is enough that his acts result in creating provides in substance that the rank-and-file
an intimidating, hostile or offensive environment for the employee.
union and the supervisors’ union operating within the same
XIII establishment may join the same federation or national union.
A.
Yes, Nicodemus can be dismissed on based on willful disobedience to
the lawful order under Article 297 (a) of the Labor Code and the
“prescribed uniform policy” of the company. For an employee to be
validly dismissed on this ground, the employer’s orders, regulations, or
instructions must be: (1) reasonable and lawful, (2) sufficiently known
XVI.
A.
Nagrab Corporation was not correct in refusing to enforce the CBA
provision with respect to the absorbed employees. This is because it
cannot invoke its merger with another corporation as a valid ground to
exempt its absorbed employees from the coverage of a union shop
clause contained in its existing Collective Bargaining Agreement (CBA)
with its own certified labor union. In BANK OF THE PHILIPPINE ISLANDS
V. BPI EMPLOYEES UNION-DAVAO CHAPTER-FEDERATION OF UNIONS
IN BPI UNIBANK, G.R. No. 164301, August 10, 2010, the High Court
resolved the question in this manner: At the outset, we should call to
mind the spirit and the letter of the Labor Code provisions on union
security clauses, specifically Article 248 (e), which states, x x x Nothing
in this Code or in any other law shall stop the parties from requiring
membership in a recognized collective bargaining agent as a condition
for employment, except those employees who are already members of
another union at the time of the signing of the collective bargaining
agreement. This case which involves the application of a collective
bargaining agreement with a union shop clause should be resolved
principally from the standpoint
of the clear provisions of our labor laws, and the express terms of the
CBA in question, and not by inference from the general consequence of
the merger of corporations under the Corporation Code, which obviously
does not deal with and, therefore, is silent on the terms and conditions
of employment in corporations or juridical entities.
B. May a newly-regularized employee of Nagrab Corporation (who is
not-part of the absorbed employees) refuse to join Nagrab Union? How
would you advise the human resources manager of Nagrab Corporation
to proceed?
The newly-regularized employee of Nagrab Corporation (who is not-part
of the absorbed employees) cannot refuse to join Nagrab Union in view
of the union security clause provision of the CBA. While the right to join
includes the right not to join, however, the exception is the UNION
SECURITY CLAUSE where it imposes upon employees the obligation to
acquire or retain union membership as a condition affecting
employment. Thus, I will advise the human resources manager of
Nagrab Corporation to comply with the provision of the CAB stating that
: “New_employees within the coverage of the bargaining unit who may
be regularly employed shall become members of Nagrab Union
XVII.
A.
All striking employees be admitted back to work and including striking
employees who damaged company properties. The effect of assumption
of jurisdiction of the Secretary of Labor is clear under Article 278 (g)
which provides in substance that such assumption shall have the effect
of automatically enjoining the intended or impending strike or lockout
as specified in the assumption or certification order. If one has already
taken place at the time of assumption or certification, all striking or
locked out employees shall immediately return-to-work and the
employer shall immediately resume operations and readmit all workers
under the same terms and conditions prevailing before the strike or
lockout
(b) May the company, readmit strikers only by restoring them to the
payroll?
The company may not readmit strikers by restoring them to the payroll.
The phrase “under the same terms and conditions” found in Article 278
(g) [263 (g)] of the Labor Code was interpreted by the Supreme Court
in the case of the University of Immaculate Concepcion, Inc. v.
Secretary of Labor, G.R. No. 151379, January 14, 2005 as follows:
With respect to the Secretary’s Order allowing payroll reinstatement
instead of actual reinstatement for the individual respondents herein, an
amendment to the previous Orders issued by her office, the same is
usually not allowed. Article 263(g) of the Labor Code aforementioned
states that all workers must immediately return to work and all
employers must readmit all of them under the same terms and
conditions prevailing before the strike or lockout. The phrase “under the
same terms and conditions” makes it clear that the norm is actual
reinstatement. This is consistent with the idea that any work stoppage
or slowdown in that particular industry can be detrimental to the
national interest. Clearly, reinstatement should be actual and not payroll
reinstatement
XIX.
A. The transfer of the 50 ground crew personnel does not amount to
Illegal dismissal. This is because their transfer is a valid exercise of
management prerogatives. As their employer, Northeast Airlines has the
right to regulate, according to its discretion and best judgment, work
assignments, work methods, work supervision, and work regulations,
including the hiring, firing and discipline of its employees. The Supreme
Court upholds these management prerogatives so long as they are
exercised in good faith for the advancement of the employer’s interest
and not for the purpose of defeating or circumventing the rights of the
employees under special laws and valid agreements.
In this case it does not show that Northeast Airlines implemented the
transfer for the purpose of defeating or circumventing the rights of the
said 50 ground crew personnel.
act of the company supervisor in barging in and demanding for Nad,
Ned, and Nod to cease from distributing the flyers relates to the
commission of acts that transgress their right to organize or it was
made to interfere, restrain or coerce them with the exercise of their
right to self-organization.
B. Assume the NLRC ruled in favor of the Union. The Labor Arbiter's
judgment included, among others, anaward for moral and exemplary
damages at PhP50,000.00 each for Nad, Ned, and Nod. Northern
LightsCorporation argued that any award of damages should be given to
the Union and not individually to its members. Is Northern Lights
Corporation correct?

Northern Lights Corporation is not correct. The rights that were violated
belongs to the union members, Nad, Ned, and Nod, and not the union
B. The unfair labor practice case will not prosper. This is because the act itself. Further, the said union members were the real party in interest in
did not constitute an act of interfering, restraining or coercing the said the said case for ULP filed by the union against the corporation and not
employees in the exercise of their right to self-organization under Article the union itself. The union is a juridical person and as a rule it cannot
259 [a]of the Labor Code. In a case, the Supreme Court had occasion to not suffer moral damages.
lay down the test of whether an employer has interfered with and
coerced employees in the exercise of their right to self-organization,
that is, whether the employer has engaged in conduct which, it may
reasonably be said, tends to interfere with the free exercise of
employees’ rights.

In the given facts, it does not show that the act of Northern Airlines in
sending notices of transfer relates to the commission of acts that
transgress their right to organize or it was made to interfere, restrain or
coerce them with the exercise of their right to self-organization

XX.

A.

The ULP case filed by the Union will not prosper. This is because the act
did not constitute an act of interfering, restraining or coercing the said
employees in the exercise of their right to self-organization under Article
259 [a]of the Labor Code.In the given facts, it does not show that the