2014 Labor Law Answers

ANSWERS OF A BYSTANDER

TO THE 2014 BAR QUESTIONS IN LABOR LAW (With Comments) Hon. Benedict G. Kato

Labor Arbiter Law Prof., Bar Reviewer, MCLE Lecturer Author

I Linda was employed by Sectarian University (SU) to cook for the members of a religious order who teach and live inside the campus. While performing her assigned task, Linda accidentally burned herself. Because of the extent of her injuries, she went on medical leave. Meanwhile, SU engaged a replacement cook. Linda filed a complaint for illegal dismissal, but her employer SU contended that Linda was not a regular employee but a domestic househelp. Decide. (4%) ANSWER: Linda is a regular employee. SU’s contention that Linda is a domestic helper is without basis because the latter did not minister to the personal comfort of the members of any household. Although a cook, hence listed, she cannot be classified as a Kasambahay because she rendered services for resident religious teachers in a university which was not a household. II Lucy was one of approximately 500 call center agents at Hambergis, Inc. She was hired as a contractual employee four years ago. Her contracts would be for a duration of five (5) months at a time, usually after a one- month interval. Her re-hiring was contingent on her performance for the immediately preceding contract. Six (6) months after the expiration of her last contract, Lucy went to Hambergis personnel department to inquire why she was not yet being recalled to work. She was told that her performance during her last contract was “below average.” Lucy seeks your legal advice about her chances of getting her job back. What will your advice be? (4%) ANSWER:

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. III Lolong Law Firm (LLF), which employs around 50 lawyers and 100 regular staff, suffered losses for the first time in its history. The management informed its employees that it could no longer afford to provide them free lunch. Consequently, it announced that a nominal fee would henceforth be charged. Was LLF justified in withdrawing this benefit which it had unilaterally been providing to its employees? (1%) (A) Yes, because it is suffering losses for the first time. (B) Yes, because this is a management prerogative which is not due to any legal or contractual obligation. (C) No, because this amounts to a diminution of benefits which is prohibited by the Labor Code. (D) No, because it is a fringe benefit that has already ripened into a demandable right. ANSWER: (D) “No, because it is a fringe benefit that has already ripened into a demandable right.” Note: Not (A) because the losses do not appear to be substantial losses. Not (B) because management prerogative cannot be the source of a unilateral benefit at one point and the very justification for its taking away at another.

Not (C) because Article 100 of the Labor Code applies only to benefits enjoyed before or at the time of the effectivity of the Code (Waterfront ruling, 22 Sept. 2010, J Peralta). IV Linis Manpower, Inc. (LMI) had provided janitorial services to the Philippine Overseas Employment Administration (POEA) since March 2009. Its service contract was renewed every three months. However, in the bidding held in June 2012, LMI was disqualified and excluded. In 2013, six janitors of LMI formerly assigned at POEA filed a complaint for underpayment of wages. Both LMI and POEA were impleaded as respondents. Should POEA, a government agency subject to budgetary appropriations from Congress, be held liable solidarily with LMI for the payment of salary differentials due the complainant? Cite the legal basis of your answer. (4%) ANSWER: Yes. The POEA, although a government agency, is a statutory employer by operation of Article 106 of the Labor Code, as implemented by D.O. 18-A. As such, it can be held solidarily liable for salary differentials resulting from its job contractor’s underpayment of salaries due its workers (Meralco Industrial Eng’g ruling, 14 March 2008). Comment: Relative to the trilateral relationship between a principal (P), contractor (C) and worker (W), we hardly read that P may be any person – private or public. The Bar question tells us that P may be the POEA, SSS, GSIS or ADB. Article 106, LC, makes no distinction; hence, any person can be a statutory employer. Indeed, only principals of service providers in IT-assisted outsourcing, PCAB-registered contractors, and canteen concessionaires are beyond the reach of D.O. 18-A. V Liwayway Glass had 600 rank-and-file employees. Three rival unions – A, B, and C participated in the certification elections ordered by the Med-Arbiter. 500 employees voted. The unions obtained the following votes: A-200; B-150; C50; 90 employees voted “no union”; and 10 were segregated votes. Out of the segregated votes, four (4) were cast by probationary employees and six (6)

were cast by dismissed employees whose respective cases are still on appeal. (10%) (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? (B) Was there a valid election? (C) Should Union A be declared the winner? (D) Suppose the election is declared invalid, which of the contending unions should represent the rank-and-file employees? (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? ANSWERS: (A). Yes. The segregated votes should be counted as valid votes. Probationary employees are not among the employees who are ineligible to vote. Likewise, the pendency of the appeal of the six dismissed employees indicates that they have contested their dismissal before a forum of appropriate jurisdiction; hence, they continue to be employees for purposes of voting in a certification election (D.O. 40-03). (B). Yes. The certification election is valid because it is not a barred election and majority of the eligible voters cast their votes. (C). No. Union A should not be declared the winner because it failed to garner majority of the valid votes. The majority of 500 votes, representing valid votes, is 251 votes. Since Union A received 200 votes only, it did not win the election. (D) 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) If the 10 votes were segregated on the same grounds, Union A cannot still be certified as the bargaining representative because its vote of 250 is still short of the majority vote of 251. However, if the 10 votes were validly segregated, majority vote would be 246 votes. Since Union A received more than majority vote then it won the election.

VI Lina has been working as a steward with a Miami, U.S.A.-based Loyal Cruise Lines for the past 15 years. She was recruited by a local manning agency, Macapagal Shipping, and was made to sign a 10-month employment contract everytime she left for Miami. Macapagal Shipping paid for Lina’s round-trip travel expenses from Manila to Miami. Because of a food poisoning incident which happened during her last cruise assignment, Lina was not re-hired. Lina claims she has been illegally terminated and seeks separation pay. If you were the Labor Arbiter handling the case, how would you decide? (4%) ANSWER: I will dismiss the complaint for illegal dismissal. Lina is a seafarer. As such, she is a contractual employee who cannot require her employer to enter into another contract of employment with her under the Principle of Freedom of Contracts. In effect, Lina cannot be awarded separation pay. As an alternative relief, separation pay is proper only when there is a finding of illegal dismissal. VII Non-lawyers can appear before the Labor Arbiter if: (1%) (A) they represent themselves (B) they are properly authorized to represent their legitimate labor organization or member thereof (C) they are duly-accredited members of the legal aid office recognized by the DOJ or IBP (D) they appear in cases involving an amount of less than Php5,000 ANSWER: (A). “They represent themselves.” Note: Not (B) because it restricts the term “organizations” to legitimate labor organizations.

Not (C) because the DOJ is not an accrediting agency. Not (D) because the “not exceeding Ph5,000” is a jurisdictional rule, not a rule on law practice. VIII As a result of a bargaining deadlock between Lazo Corporation and Lazo Employees Union, the latter staged a strike. During the strike, several employees committed illegal acts. Eventually, its members informed the company of their intention to return to work. (6%) (A) Can Lazo Corporation refuse to admit the strikers? (B) Assuming the company admits the strikers, can it later on dismiss those employees who committed illegal acts? (C) If due to prolonged strike, Lazo Corporation hired replacements, can it refuse to admit the replaced strikers? ANSWERS: (A) No. A strike is a temporary stoppage of work only. Therefore, strikers can go back to their work in the event of a voluntary abandonment of their strike. (B) 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) No. The positions left behind by strikers are deemed legally unoccupied. Moreover, the hiring of replacement workers does not terminate employer-employee relationship because a strike is a temporary stoppage of work only. Finally, replacement workers are deemed to have accepted their engagement subject to the outcome of the strike. IX Luisa Court is a popular chain of motels. It employs over 30 chambermaids who, among others, help clean and maintain the rooms. These chambermaids are part of the union rank-and-file employees which has an existing collective bargaining agreement (CBA) with the company. While the CBA was in force, Luisa Court decided to abolish the position of chambermaids and outsource the

cleaning of the rooms to Malinis Janitorial Services, a bona fide independent contractor which has invested in substantial equipment and sufficient manpower. The chambermaids filed a case of illegal dismissal against Luisa Court. In response, the company argued that the decision to outsource resulted from the new management’s directive to streamline operations and save on costs. If you were the Labor Arbiter assigned to the case, how would you decide? (4%) ANSWER: 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 job contracting arrangement between Luisa Court and Malinis Janitorial Services is prohibited by D.O. 18-A because it has the effect of introducing workers to displace Luisa Court’s regular workers. X Luisa was hired as a secretary by the Asian Development Bank (ADB) in Manila. Luisa’s first boss was a Japanese national whom she got along with. But after two years, the latter was replaced by an arrogant Indian national who did not believe her work output was in accordance with international standards. One day, Luisa submitted a draft report filled with typographical errors to her boss. The latter scolded her, but Luisa verbally fought back. The Indian boss decided to terminate her services right then and there. Luisa filed a case for illegal dismissal with the Labor Arbiter claiming arbitrariness and denial of due process. If you were the Labor Arbiter, how would you decide the case? (4%) ANSWER: I will dismiss the complaint for illegal dismissal. Luisa committed serious misconduct. Her Indian boss, regardless of his arrogant nature, had the clear right to reprimand her for her poor performance. Absent justification for verbally fighting back, Luisa’s act amounted to serious misconduct. Therefore, her dismissal was valid. However, she was not accorded statutory due process. For this reason, I will award her nominal damages of Ph30,000. XI

Lionel, an American citizen whose parents migrated to the U.S. from the Philippines, was hired by JP Morgan in New York as a call center specialist. Hearing about the phenomenal growth of the call center industry in his parents’ native land, Lionel sought and was granted a transfer as a call center manager for JP Morgan’s operations in Taguig City. Lionel’s employment contract did not specify a period for his stay in the Philippines. After three years of working in the Philippines, Lionel was advised that he was being recalled to New York and being promoted to the position of director of international call center operations. However, because of certain “family reasons,” Lionel advised the company of his preference to stay in the Philippines. He was dismissed by the company. Lionel now seeks your legal advice on: (6%) (A) whether he has a cause of action (B) whether he can file a case in the Philippines (C) what are his chances of winning ANSWER: (A) Lionel has a cause of action. He has a right to be secure in his job; his employer has the correlative obligation to respect that right; his dismissal constitutes a violation of his tenurial right; and said violation caused him legal injury. (B) Lionel can file an illegal dismissal case in the Philippines. Being a resident corporation, JP Morgan is subject to Philippine Labor Laws. And, although hired abroad, Lionel’s place of work is Taguig. Hence, he can lodge his complaint with the NLRC-NCR which has territorial jurisdiction over his workplace (Sec. 1, Rule IV, NLRC Rules of Procedure, as amended). (C) Lionel has reasonable chances of winning. His recall to the USA was not a lawful lateral transfer that he could not refuse. On the contrary, it was a scalar transfer amounting to a promotion which he could validly refuse. Absent willful disobedience, therefore, his termination is groundless. XII Which of the following groups does not enjoy the right to selforganization? (1%) (A) those who work in a non-profit charitable institution (B) those who are paid on a piece-rate basis

(C) those who work in a corporation with less than 10 employees (D) those who work as legal secretaries ANSWER: (D). “Those who work as legal secretaries”. confidential employees.

Legal secretaries

are

Note: Not (A) because, under Article 243 of the Labor Code, employees of charitable, religious, educational and medical institutions are covered employees. Not (B) because piece-raters do not suffer any disqualification. Not (C) because the “less than 10 rule” in the Labor Code affects right to labor standards benefits, in particular holiday pay and service incentive leave (Articles 94 and 95), not right to self-organization. XIII Don Luis, a widower, lived alone in a house with a large garden. One day, he noticed that the plants in his garden needed trimming. He remembered that Lando, a 17-year old out-of-school youth, had contacted him in church the other day looking for work. He contacted Lando who immediately attended to Don Luis’s garden and finished the job in three days. (4%) (A) Is there an employer-employee relationship between Don Luis and Lando? (SSS)?

(B) Does Don Luis need to register Lando with the Social Security System

ANSWER: (A) There is employer-employee relationship between Don Luis and Lando. Firstly, Lando who was looking for work finally rendered personal services for Don Luis. Secondly, Lando could not have been the master of his time, means and methods under the circumstances (Sec. 8, RA 8282).

(B) Don Luis does not need to register Lando with the SSS because he is a purely casual employee, hence outside SSS coverage (RA 8282). Neither should he report Lando for SSS coverage under the Kasambahay Act because, although a gardener, he is an occasional if not sporadic employee. Therefore, he is not a kasambahay who is entitled to SSS coverage (RA 10361). Comment: The question is tricky. The examiner wants to lead the examinees into considering Lando as a kasambahay because he is listed ( gardener), and giving him SSS coverage pursuant to RA 10361. However, Lando is an occasional or sporadic gardener; hence, he is not a kasambahay. XIV Luisito has been working with Lima Land for 20 years. Wanting to work in the public sector, Luisito applied with and was offered a job at Livecor. Before accepting the offer, he wanted to consult you whether the payments that he and Lima Land had made to the Social Security System (SSS) can be transferred or credited to the Government Service Insurance System (GSIS). What would you advice? (4%) ANSWER: I would tell Luisito that, under the Limited Portability Law, he will carry with him his creditable service and paid contributions as he moves from one system to the other. Hence, he may accept the job offer without fearing that he would lose his years of service in the private sector. Actually, they can be totalized with his years of service in the public sector in the event that he would not be able to qualify for benefits due solely to insufficiency of creditable service. XV Our Lady of Peace Catholic School Teachers and Employees Labor Union (OLPCS-TELU) is a legitimate labor organization composed of vice- principals, department heads, coordinators, teachers, and non-teaching personnel of Our Lady of Peace Catholic School (OLPCS). OLPCS-TELU subsequently filed a petition for certification election among the teaching and non-teaching personnel of OLPCS before the Bureau of Labor Relations (BLR) of the Department of Labor and Employment (DOLE). The MedArbiter subsequently granted the petition and ordered the conduct of a joint certification election for the teaching and non-teaching personnel of OLPCS.

May OLPCS-TELU be considered a legitimate labor organization? (5%) ANSWER: 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 viceprincipals and department heads are deemed automatically removed (RA 9481). Comment: Another tricky question. The body of the problem leads one to “appropriateness of a CBU”. Hence, he might apply the Substantial Mutuality of Interest Principle based on his observation that the employees perform separate but interdependent tasks. Actually, the question is legitimacy of status only ( LLO status). So the fact to tackle is mixed-membership. XVI Samahang East Gate Enterprises (SEGE) is a labor organization composed of the rank-and-file employees of East Gate Enterprises (EGE), the leading manufacturer of all types of gloves and aprons. EGE was later requested by SEGE to bargain collectively for better terms and conditions of employment of all the rank-and-file employees of EGE. Consequently, EGE filed a petition for certification election before the Bureau of Labor Relations (BLR). During the proceedings, EGE insisted that it should participate in the certification process. EGE reasoned that since it was the one who filed the petition and considering that the employees concerned were its own rank- andfile employees, it should be allowed to take an active part in the certification process. Is the contention of EGE proper? Explain. (5%) ANSWER: EGE could file the petition for certification election because it was requested to collectively bargain and it could not do so because SEGE was not the EBR. After it filed the petition, however, it reverted to its standby status. Therefore, it could not interfere with the selection process which was the

exclusive prerogative of its workers. It could only participate in the inclusionexclusion proceedings, and nowhere else. XVII Philhealth is a government-owned and controlled corporation employing thousands of Filipinos. Because of the desire of the employees of Philhealth to obtain better terms and conditions of employment from the government, they formed the Philhealth Employees Association (PEA) and demanded Philhealth to enter into negotiations with PEA regarding terms and conditions of employment which are not fixed by law. (4%) (A) Are the employees of Philhealth allowed to self-organize and form PEA and thereafter demand Philhealth to enter into negotiations with PEA for better terms and conditions of employment? (B) In case of unresolved grievances, can PEA resort to strikes, walkouts, and other temporary work stoppages to pressure the government to accede to their demands? ANSWERS: (A) Under E.O. 180, Philhealth employees can organize. Thru their organization, they can negotiate with Philhealth over terms and conditions of employment not fixed by its charter, Civil Service Law, or applicable salary standardization law. (B) No. Although the right to organize implies the right to strike, law may withhold said right. E.O. 180 is that law which withholds from government employees the right to strike. Hence, they cannot resort to strikes and similar concerted activities to compel concessions from the government. XVIII The procedural requirements of a valid strike include: (1%) (A) a claim of either unfair labor practice or deadlock in collective bargaining. (B) notice of strike filed at least 15 days before a ULP-grounded strike or at least 30 days prior to the deadlock in a bargaining-grounded strike.

(C) majority of the union membership must have voted to stage the strike with notice thereon furnished to the National Conciliation and Mediation Board (NCMB) at least 24 hours before the strike vote is taken. (D) strike vote results must be furnished to the NCMB at least seven (7) days before the intended strike. ANSWER: (A). “A claim of either unfair labor practice or deadlock in collective bargaining.” Explanation: Options “B”, “C” and “D” refer to strike procedures. “B” refers to the cooling-off period; “C” to the strike vote; and “D” to the strike ban. What is not expressly referred to in the options is notice of strike. It is this procedural requirement which includes ULP or bargaining deadlock which are the only strike grounds. Hence, it is correct to say that “the procedural requirements of a valid strike include” (see MCQ stem) “a claim for ULP or deadlock in collective bargaining” (Option “A”). In other words, the procedural requirements of a valid strike are notice, cooling-off period, strike vote, and strike ban. It is in the notice that ULP and deadlock in CB are included. Comment: The question is fantastic. Never imagined before. The examiner used the simple word “include” to hide the answer.

XIX Lincoln was in the business of trading broadcast equipment used by television and radio networks. He employed Lionel as his agent. Subsequently, Lincoln set up Liberty Communications to formally engage in the same business. He requested Lionel to be one of the incorporators and assigned to him 100 Liberty shares. Lionel was also given the title Assistant Vice-President for Sales and Head of Technical Coordination. After several months, there were allegations that Lionel was engaged in “under the table dealings” and received “confidential commissions” from Liberty’s clients and suppliers. He was, therefore, charged with serious misconduct and willful breach of trust, and was given 48 hours to present his explanation on the charges. Lionel was unable to comply with the 48-hour deadline and was subsequently barred from entering

company premises. Lionel then filed a complaint with the Labor Arbiter claiming constructive dismissal. Among others, the company sought the dismissal of the complaint alleging that the case involved an intra-corporate controversy which was within the jurisdiction of the Regional Trial Court (RTC). If you were the Labor Arbiter assigned to the case, how would you rule on the company’s motion to dismiss? (5%) ANSWER: 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. XX Lito was anticipating the bonus he would receive for 2013. Aside from the 13th month pay, the company has been awarding him and his other coemployees a two to three months bonus for the last 10 years. However, because of poor over-all sales performance for the year, the company unilaterally decided to pay only a one month bonus in 2013. Is Lito’s employer legally allowed to reduce the bonus? (4%) ANSWER: Yes. Bonuses enjoyed even for 10 years may be reduced for economic reasons. Article 100 of the Labor Code will not be violated because it applies only to benefits enjoyed before or at the time of the effectivity of the Labor Code (Waterfront ruling). As to whether the Principle of Grants will be violated, the reduction will not also amount to a violation because benefits given to workers are not raw materials but the product of business success. This policy of balancing employer-employee interests is one of the pillars of labor relations (Prof. C. Azucena). XXI

An accidental fire gutted the JKL factory in Caloocan. JKL decided to suspend operations and requested its employees to stop reporting for work. After six (6) months, JKL resumed operations but hired a new set of employees. The old set of employees filed a case for illegal dismissal. If you were the Labor Arbiter, how would you decide the case? (4%) ANSWER: 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 JKL 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 JKL to pay the complainants’ full backwages, separation pay because their positions are occupied already, nominal damages for non-observance by JKL of prescribed pre-termination procedure, moral and exemplary damages for its bad faith (Lynvil Fishing Enterprises, Inc., et al. vs. Ariola, et al., G.R. No. 181974,1 February 2012), and 10% attorney’s fees for compelling its employees to litigate against it (Art. 111, LC). XXII Despite a reinstatement order, an employer may choose not to reinstate an employee if: (1%) (A) there is a strained employer-employee relationship (B) the position of the employee no longer exists (C) the employer’s business has been closed (D) the employee does not wish to be reinstated. ANSWER: (A). “There is strained employer-employee relationship.” Note:

Not (B) because the stem implies that the employer has a choice between reinstatement and non-reinstatement. Here, he has no option at all because the position in question no longer exists. Not (C) because the employer has no option due to the closure of his business. Not (D) because the employer cannot choose not to reinstate due to his employee’s decision not to be reinstated. Comment: This MCQ demonstrates the importance of recognizing the implications of the stem. Since the stem implies that the employer can choose one of two options, none of the items that give him just one choice can be the correct answer. XXIII Luningning Foods engaged the services of Lamitan Manpower, Inc., a bona fide independent contractor, to provide “tasters” that will check on food quality. Subsequently, these “tasters” joined the union of rank-and-file employees of Luningning and demanded that they be made regular employees of the latter as they are performing functions necessary and desirable to operate the company’s business. Luningning rejected the demand for regularization. On behalf of the “tasters”, the union then filed a notice of strike with the Department of Labor and Employment (DOLE). In response, Luningning sought a restraining order from the Regional Trial Court (RTC) arguing that the DOLE does not have jurisdiction over the case since it does not have an employer-employee relationship with the employees of an independent contractor. If you were the RTC judge, would you issue a restraining order against the union? (4%) ANSWER: 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 Lanz was a strict and unpopular Vice-President for Sales of Lobinsons Land. One day, Lanz shouted invectives against Lee, a poor performing sales associate, calling him, among others, a “brown monkey.” Hurt, Lee decided to file a criminal complaint for grave defamation against Lanz. The prosecutor found probable cause and filed an information in court. Lobinsons decided to terminate Lanz for committing a potential crime and other illegal acts prejudicial to business. Can Lanz be legally terminated by the company on these grounds? (4%) ANSWER: 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. Comment: There are two separate grounds for dismissal. One is a just cause, the other is not. To the question “Can Lanz be legally terminated on these grounds?”, one should not give an answer that treats the two as though they were one and the same. This is because, based on the crafting of previous questions, it should be obvious that the examiner has a clinical mind. Alternative Answer: 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. However, it can be treated as a cause analogous to serious misconduct or loss of trust and confidence. Therefore, Lanz can be dismissed on this ground.

As to the second ground, Lanz’s dysfunctional behavior has made the work environment at Lobinsons hostile as to adversely affect other employees, like Lee. Therefore, he can be dismissed also on the ground of serious misconduct and loss of trust and confidence. XXV Lizzy Lu is a sales associate for Luna Properties. The latter is looking to retrench Lizzy and five other sales associates due to financial losses. Aside from a basic monthly salary, Lizzy and her colleagues receive commissions on the sales they make as well as cost of living and representation allowances. In computing Lizzy’s separation pay, Luna Properties should consider her: (1%) (A) monthly salary only (B) monthly salary plus sales commissions (C) monthly salary plus sales commissions, plus cost of living allowance (D) monthly salary plus sales commissions, plus cost of living allowance and representation allowance ANSWER: (A). “Monthly salary only.” Note: Not (B) because the basis of separation pay under Art. 289 (renumbered), LC, is monthly salary only. Not (C) because monthly salary means basis salary which excludes commissions and allowances. Not (D) because monthly salary excludes commissions and allowances. XXVI Liwanag Corporation is engaged in the power generation business. A stalemate was reached during the collective bargaining negotiations between its management and the union. After following all the requisites provided by law, the union decided to stage a strike. The management sought the assistance of the Secretary of Labor and Employment, who assumed jurisdiction over the strike and issued a return-to-work order. The union defied the latter and continued the

strike. Without providing any notice, Liwanag Corporation declared everyone who participated in the strike as having lost their employment. (4%) (A) Was Liwanag Corporation’s action valid? (B) If, before the DOLE Secretary assumed jurisdiction, the striking union members communicated in writing their desire to return to work, which offer Liwanag Corporation refused to accept, what remedy, if any, does the union have? ANSWER: (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 AJO, 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 prestrike 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 June 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. XXVII The jurisdiction of the National Labor Relations Commission does not include: (1%) (A) exclusive appellate jurisdiction over all cases decided by the Labor Arbiter (B) exclusive appellate jurisdiction over all cases decided by Regional Directors or hearing officers involving the recovery of wages and other monetary claims and benefits arising from employer-employee relations where the aggregate money claim of each does not exceed five thousand pesos (Php5,000)

(C) original jurisdiction to act as a compulsory arbitration body over labor disputes certified to it by the Regional Directors (D) power to issue a labor injunction ANSWER: (C). Regional Directors do not have assumption power; cannot certify cases to the NLRC.

hence, they

Comment: The examiner shows contempt for the human eye. AN APPEAL TO THE EXAMINER This bystander initially answered the questions on a blue pad with his pen. It took him 2 ½ hours to answer the 27 questions. This means that the examination was really long. For another 2 hours, or more, he reviewed and edited his raw answers for online sharing. Regardless, he is not totally sure if he has correctly answered all. Therefore, he appeals to the examiner to be liberal. After all, his questions are really for higher forms of life. He did a great job.