APB LMT LABOR Atty Buenaventura 2017 (1)

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2017 Labor Law Last Minute Tips (Jurisprudence) By: Atty. Ronel U. Buenaventura 2015 Bar Examination 10th placer LABOR STANDARDS (1) Explain the principle of co-determination. It refers to the right of workers to participate in policy and decision-making processes directly affecting their rights, benefits, and welfare  without impairing legitimate legitimate management management prerogatives. (Philippine (Philippine Airlines vs. vs. NLRC, August 13, 1993) (2) Can the constitutional due process under the Bill of Rights be invoked against the employer? No. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals – such as a private employer. (Yrasuegui vs. PAL, October 17, 2008) (3)  What government-owned and and -controlled corporations are covered covered by the Labor Code? Those GOCCs without original charter. Pursuant to Article IX-B, Sec. 2(1), the civil service embraces only those government-owned or -controlled corporations with original charter. Hence, those without original charter are covered by the Labor Code and not by the Civil Service Law. (Salenga vs. Court of Appeals, February 1, 2012) (4) Explain the rules concerning foreign law as governing an overseas employment contract. The general rule is that Philippine laws apply even to overseas employment contracts. This rule is rooted in the constitutional provision of Section 3, Article XIII that the State shall afford full protection to labor, whether local or overseas. As an exception, the parties may agree that a foreign law shall govern the employment contract, subject to the following requisites: (a) that it is expressly stipulated in the overseas employment contract that a specific foreign law shall govern; (b) that the foreign law invoked must be proven before the courts pursuant to the Philippine rules on evidence; (c) that the foreign law stipulated in the overseas employment contract must not be contrary to law, morals, good customs, public order and public policy; and (d) that the overseas employment contract must be processed through the POEA. (Industrial Personnel & Management Services vs. De Vera, March 7, 2016) (5) Is the solidary liability of corporate officers with the recruitment agency automatic in character? No. To make them jointly and solidarily liable with their company, there must be a

A LPHA   PHI BETA  LPHA  P UP COLLEGE OF L AW  Page 2 of 22 finding that they were remiss in directing the affairs of that company, such as sponsoring or tolerating the conduct of illegal activities. (Gagui vs. Dejero, October 23, 2013) (6) Explain the theory of imputed knowledge. This theory ascribes knowledge of the domestic employment agent to the principal foreign employer, not the other way around. The knowledge of the principal-foreign employer cannot be imputed to its domestic employment agent. (Sunace International Management vs. NLRC, January 25, 2006) (7) Is a seafarer a regular employee? No. A seafarer is a contractual, not a regular employee, and his employment is contractually fixed for a certain period of time. His employment, including including claims for death or illness compensations, compensations, is governed by the contract he signs every time he is hired, and is not rooted from the provisions of the Labor Code. (Panganiban vs. Tara Trading, October 18, 2010) (8) Can a person be charged and convicted separately with estafa and illegal recruitment?  Yes, a person who commits illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under par. 2(a) of Art. 315 of the Revised Penal Code. The offense of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction. Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other laws. (People vs. Daud, June 2, 2014) (9) Is the failure to present receipts in proving payments by the victims to illegal recruiter fatal to the prosecution of illegal recruitment? No. Absence of receipts in a criminal case for illegal recruitment does not warrant the acquittal of the accused and is not fatal to the case of the prosecution. As long as the witnesses had positively shown through their respective testimonies that the accused is the one involved in the prohibited recruitment, he may be convicted of the offense despite the want of receipts. (People vs. Abat, March 16, 2011) (10) Section 10, R.A. 8042 provides: “In “In case of termination of overseas employment  without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement of his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term,  whichever is less.” Is the the phrase “or for for three (3) months for every year of the unexpired term, whichever is less” constitutional? No. constitutional?  No. It violates the equal protection clause of the Constitution. The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 3 of 22 employment periods, in the process singling out one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's unexpired contracts fall short of one year. Moreover, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. (Serrano vs. Gallant Maritime, March 24, 2009) In 2010, Congress passed R.A. 10022, amending R.A. 8042 and reenacting the phrase “or for three (3) months for every year of the unexpired term, whichever is less” constitutional”. Is the reenactment or relegislation constitutional? No. A statute or provision which was declared unconstitutional is not a law. When a law or a provision of law is null because it is inconsistent with the Constitution, the nullity cannot be cured by reincorporation or reenactment of the same or a similar law or provision. A law or provision of law that was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a reverse conclusion.  What then are the reliefs to which OFWs are entitled should they be illegally dismissed? They are entitled to (a) all salaries for the unexpired portion of the contract; and (b) full reimbursement of placement fees and deductions made with interest at twelve (12%) per annum. (Sameer Overseas vs. Cabiles, August 5, 2014) (11) Section 10, paragraph 2, of the Migrant Workers' Act of 1995 provides that the joint and solidary liability of the domestic employment agent and the principal foreign employer  would continue during the entire period or duration of the employment contract, and  would not be affected by any substitution, amendment or modification of the contract made either locally or in a foreign country. Explain its rationale. This must be so, because the obligations covenanted in the manning agreement between the local agent and its foreign principal are not coterminous with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the, employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. (Pentagon International vs. Court of Appeals, July 1, 2015) (12)The POEA Standard Employment Contract (POEA SEC) provides that employment shall commence “upon the actual departure of the seafarer from the airport or seaport in the

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 4 of 22 port of hire. Does the employer-employee relationship commence upon the perfection of the POEA SEC? No. Distinction must be made between the perfection of the employment contract and the commencement of the employer-employee relationship. The perfection of the contract, which coincided with the date of execution thereof, occurred when seafarer and employer agreed on the object and the cause, as well as the rest of the terms and conditions therein. The commencement of the employer-employee relationship would have taken place had seafarer been actually deployed from the point of hire. Thus, even before the start of any employer-employee relationship, contemporaneous with the perfection of the employment contract was the birth of certain rights and obligations, the breach of which may give rise to a cause of action against the erring party. Thus, if the reverse had happened, that is the seafarer failed or refused to be deployed as agreed upon, he would be liable for damages.  Assuming there exists a POEA SEC but there is n o employer-employee relationship yet and the seafarer was unjustifiably not deployed, under what law can he claim relief? He can claim relief under Section 10, R.A. 8042, as amended: Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. (Stolt-Nielsen vs. Medequillo,  January 18, 2012) (13) Which should be followed in settling OFW claims: compulsory arbitration under Section 10, R.A. 8042 granting jurisdiction to NLRC to settle OFW claims or Collective Bargaining Agreement (CBA) providing for voluntary arbitration? The Collective Bargaining Agreement providing for voluntary arbitration. The jurisdiction of the voluntary arbitrator is preferred, not only because of the clear language of the parties’ CBA on the matter; but also, more importantly, in recognition of the State’s express preference for voluntary modes of dispute settlement, such as conciliation and voluntary arbitration as expressed in the Constitution, the law and the rules. (Ace Navigation vs. Fernandez, October 10, 2012) (14) Under POEA SEC, who determines whether the seafarer suffers from any disability? The one tasked to determine whether the seafarer suffers from any disability or is fit to work is the company-designated physician. As such, the seafarer must submit himself to the companydesignated physician for a post employment medical examination within three days from his repatriation. But the assessment of the company-designated physician is not final, binding or conclusive on the seafarer, the labor tribunals, or the courts. (Wallem Maritime vs. Tanawan,  August 29, 2012)

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 5 of 22  When then can a seafarer pursue an action for total and permanent disability benefits? The seafarer can pursue an action for total and permanent benefits if: (a) the companydesignated physician failed to issue a declaration as to his fitness to engage in sea duty or disability even after the lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability, hence, justify an extension of the period to 240 days; (b) 240 days had lapsed without any certification being issued by the company-designated physician; (c) the company-designated physician declared that he is fit for sea duty within the 120-day or 240-day period, as the case may be, but his physician of choice and the doctor chosen under Section 20-B(3) of the POEA-SEC are of a contrary opinion; (d) the company-designated physician acknowledged that he is partially permanently disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well; (e) the company-designated physician recognized that he is totally and permanently disabled but there is a dispute on the disability grading; (f) the company-designated physician determined that his medical condition is not compensable or work-related under the POEA-SEC but his doctor-of-choice and the third doctor selected under Section 20-B(3) of the POEA-SEC found otherwise and declared him unfit to work; (g) the company-designated physician declared him totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and (h) the companydesignated physician declared him partially and permanently disabled within the 120-day or 240-day period but he remains incapacitated to perform his usual sea duties after the lapse of the said periods. (C.F. Sharp Crew Management vs. Taok, July 18, 2012) (15)The POEA SEC between employers and seafarers provides for a one-year prescriptive period to file claims arising from the said contract. Is this valid? No. Article 291 of the Labor Code, providing for a prescriptive period of three (3) years from the time the cause of action accrued, covers all money claims arising from employer-employee relationship. It is not limited to money claims recoverable under the Labor Code, but applies also to claims of OFWs. This law prevails over Section 28 of the Standard Employment Contract for Seafarers which provides for claims to be brought only within one year from the date of the seafarer’s return to the point of hire. Thus, Section 28 of the Standard Employment Contract for Seafarers, insofar as it limits the prescriptive period within which the seafarers may file their money claims, is hereby declared null and void. The applicable provision is Article 291 of the Labor Code, it being more favorable to the seafarers and more in accord with the State’s declared policy to afford full protection to labor. (Southeastern Shipping vs. Navarra, June 22, 2010) (16)  What are the tests to determine the existence of employer-employer relationship? The tests are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee on the means and methods by which the work is accomplished. The last element, the so-called control test, is the

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 6 of 22 most important element. (Jao vs. BCC Products, April 18, 2012) Thus, a pianist who is given an initial rate of P400/night of performance, could not choose the time of performance as he is given a fixed period from 7 PM to 10 PM for three to six times a week, required him to conform  with the venue’s motif, and subjected to the rules on employees’ representation checks and chits, is considered an employee, control test being present. (Legend Hotel vs. Realuyo, July 18, 2012) (17) When can a project employee attain status of a regular employee? A project employee or a member of a work pool may acquire the status of a regular employee when the following concur: (a) there is a continuous rehiring of project employees even after cessation of a project; and (b) the tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade of the employer. Is project employment same as fixed-term employment? No. While the former requires a project as restrictively defined above, the duration of a fixed-term employment agreed upon by the parties may be any day certain, which is understood to be "that which must necessarily come although it may not be known when." The decisive determinant in fixed-term employment is not the activity that the employee is called upon to perform but the day certain agreed upon by the parties for the commencement and termination of the employment relationship. Does the fixing of period in a contract of employment itself signify an intention to circumvent Article 280 of the Labor Code? No. (Alumamay vs. NLRC, March 9, 2016)  When can fixed-term employment be considered as not in circumvention of the law on security of tenure? The criteria under which "term employment" cannot be said to be in circumvention of the law on security of tenure, are (a) the fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or (b) it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter. (GMA Network vs. Pabriga, November 27, 2013) (18)  When is there labor-only contracting? Labor-only contracting exists when the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal and any of the following elements are present: (a) the contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or (2)

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 7 of 22 The contractor does not exercise the right to control the performance of the work of the contractual employee.  Will the failure to register as contractor with the DOLE result to the contractor being engaged in labor-only contracting? No. For failing to register as a contractor, a presumption arises that one is engaged in labor-only contracting unless the contractor overcomes the burden of proving that it has substantial capital, investment, tools and the like. (Manila Memorial Park  vs. Lluz, February 3, 2016) (19) Distinguish facilities from supplements. Supplements, on one hand, constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages. Facilities, on the other hand, are items of expense necessary for the laborer's and his family's existence and subsistence so that by express provision of law, they form part of the wage and when furnished by the employer are deductible therefrom, since if they are not so furnished, the laborer would spend and pay for them just the same. Ultimately, the real difference lies not on the kind of the benefit but on the purpose why it was given by the employer. If it is primarily for the employee’s gain, then the benefit is a facility; if its provision is mainly for the employer’s advantage, then it is a supplement. Again, this is to ensure that employees are protected in circumstances where the employer designates a benefit as deductible from the wages even though it clearly works to the employer’s greater convenience or advantage.  When are the requisites before the value of facilities can be deducted from the employees’ wages? The requisites are: (a) proof must be shown that such facilities are customarily furnished by the trade; (b) the provision of deductible facilities must be voluntarily accepted in writing by the employee; and (c) the facilities must be charged at fair and reasonable  value. (Our Haus Realty vs. Parian, August 6, 2014) (20) The non-diminution rule found in Article 100 of the Labor Code prohibits employers from eliminating or reducing the benefits received by their employees. When will this rule apply? This will apply only when the benefit is based on an express policy, a written contract, or has ripened into a practice. (Wesleyan University-Philippines vs. Wesleyan University-Philippines Faculty and Staff Association, March 12, 2014)  When is there diminution of benefits? There is diminution of benefits when the following requisites are present: (a) the grant or benefit is founded on a policy or has ripened into a practice over a long period of time; (b) the practice is consistent and deliberate; (c) the practice is not due to error in the construction or application of a doubtful or difficult question of law;

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 8 of 22 and (d) the diminution or discontinuance is done unilaterally by the employer. (Supreme Steel Corporation vs. Nagkakaisang Manggagawa ng Supreme Independent Union, March 28, 2011)  What if the practice is due to error in the construction or application of a doubtful or difficult question of law, yet said error is not corrected immediately after its discovery,  will the rule on non-diminution of benefits apply? Yes. (Wesleyan University-Philippines  vs. Wesleyan University-Philippines Faculty and Staff Association, March 12, 2014)  When are the criteria that may be used to determine existence of company practice? To be considered as a regular company practice, the employee must prove by substantial evidence that the giving of the benefit is done over a long period of time, and that it has been made consistently and deliberately. The common denominator in previously decided cases appears to be the regularity and deliberateness of the grant of benefits over a significant period of time. It requires an indubitable showing that the employer agreed to continue giving the benefit knowing fully well that the employees are not covered by any provision of the law or agreement requiring payment thereof. In sum, the benefit must be characterized by regularity, voluntary and deliberate intent of the employer to grant the benefit over a considerable period of time. (Vergara vs. Coca-cola Bottlers, April 1, 2013) (21) What is a “bonus”? A "bonus" is a gratuity or act of liberality of the giver. It is something given in addition to what is ordinarily received by or strictly due the recipient. A bonus is granted and paid to an employee for his industry and loyalty which contributed to the success of the employer’s business and made possible the realization of profits. A bonus is also granted by an enlightened employer to spur the employee to greater efforts for the success of the business and realization of bigger profits. Is “bonus” demandable? No, generally, a bonus is not a demandable and enforceable obligation. For a bonus to be enforceable, it must have been promised by the employer and expressly agreed upon by the parties. (Lepanto Ceramics vs. Lepanto Ceramics Employees  Association, March 2, 2010) (22) How much is the retirement pay? The retirement pay is equal to half-month’s pay per year of service, where half month pay shall mean fifteen (15) days plus one-twelfth (1/12th) of the 13th month pay (30 days / 12 = 2.5 days) and the cash equivalent of not more than five (5) days service incentive leaves, unless the parties provide for broader inclusions. Can an employee receive a retirement pay equivalent to 15 days, and not 22.5 days of salary?  Yes. If the employee is exempted by law from receiving 13 th month pay and service

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 9 of 22 incentive leave, such as a taxi driver paid on the “boundary” system basis, then these shall not be included in the computation of retirement pay. (Serrano vs. Severino Santos, August 9, 2010) (23) Explain the proportionality rule in termination of employment. Infractions committed by an employee should merit only the corresponding penalty demanded by the circumstance. The penalty must be commensurate with the act, conduct or omission imputed to the employee and must be imposed in connection with the disciplinary authority of the employer. (Negros Slashers Inc. vs. Teng, February 22, 2012) (24)  What are the requisites for misconduct or improper behavior to be a just cause for dismissal? The requisites are: (a) it must be serious; (b) it must relate to the performance of the employee’s duties; and (c) it must show that the employee has become unfit to continue  working for the employer. (The Coffee Bean and Tea Leaf vs. Arenas, March 11, 2015) (25)  What are the requisites for neglect of duty to be a just cause for dismissal? Neglect of duty must be both gross and habitual. Gross negligence entails want of care in the performance of one’s duties, while habitual neglect imparts repeated f ailure to perform such duties for a period of time, depending on the circumstances. (FLP Enterprises vs. Dela Cruz, July 28, 2014) (26)  What are the requisites for willful breach of trust or loss of confidence to be a just cause for dismissal? For this to be a valid ground for the termination of the employee, the employer must establish that: (1) the employee must be holding a position of trust and confidence; and (2) the act complained against would justify the loss of trust and confidence.  Who are employees vested with trust and confidence? There are two classes of employees  vested with trust and confidence. To the first class belong the managerial employees or those  vested with the powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. The second class includes fiduciary rank-and-file or those who in the normal and routine exercise of their functions regularly handle significant amounts of money or property, and are thus classified as occupying positions of trust and confidence. Cashiers, auditors, and property custodians are some of the employees in the second class. (Lagahit vs. Pacific Concord, January 13, 2016) Is there a difference between the criteria for determining validity of invoking loss of trust and confidence as a ground for terminating the two classes of employees vested  with trust and confidence? Yes. With respect to rank-and-file personnel, loss of trust and confidence, as ground for valid dismissal, requires proof of involvement in the alleged events in question, and that mere uncorroborated assertions and accusations by the employer would not

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 10 of 22 suffice. With respect to a managerial employee, the mere existence of a basis for believing that such employee has breached the trust of his employer would suffice for his dismissal. (Wesleyan University vs. Reyes, July 30, 2014) Is criminal conviction a condition sine qua non for the dismissal of an employee on the ground of breach of trust? No. The conviction of an employee in a criminal case is not indispensable to warrant his dismissal by his employer. If there is sufficient evidence to show that the employee has been guilty of a breach of trust, or that his employer has ample reason to distrust him, it cannot justly deny to the employer the authority to dismiss such employee. In fact, even the dropping of the charges or an acquittal of the employee therefrom does not preclude the dismissal of an employee for acts inimical to the interests of the employer. (Concepcion vs. Minex Import, January 24, 2012) (27)  What are the requisites that must be complied with before an employee is validly dismissed on ground of disease? The employer must satisfy the substantive and procedural requisites. The following are the substantive requisites: (a) an employee has been found to be suffering from any disease; (b) his continued employment is prohibited by law or prejudicial to his health, as well as to the health of his co-employees; and (c) a competent public health authority issues a medical certificate that the disease is of such nature or at such a stage that it cannot be cured within a period of six months even with proper medical treatment. The following are the procedural requisites: (a) the notice to apprise the employee of the ground for  which his dismissal is sought; and (b) the notice informing the employee of his dismissal, to be issued after the employee has been given opportunity to answer and to be heard on his defense. (Deoferio vs. Intel Technology, June 18, 2014) Can the employee present medical certificates to disprove the employer’s claim on disease? Yes. (Fuji Television vs. Espiritu, December 3, 2014) (28) Leus was hired by St. Scholastica, a Catholic educational institution, as a non-teaching personnel, engaged in pre-marital sexual relations, got pregnant out of wedlock, married the father of her child, and was dismissed by St. Scholastica, citing “disgraceful and immoral conduct” under the Manual of Regulations for Private Schools as basis for termination of employment. Is Leus validly dismissed? No. It is not the totality of the circumstances surrounding the conduct per se that determines whether the same is disgraceful or immoral, but the conduct that is generally accepted by society as respectable or moral. If the conduct does not conform to what society generally views as respectable or moral, then the conduct is considered as disgraceful or immoral. Thus, the determination of whether a conduct is disgraceful or immoral involves a two-step process: first, a consideration of the totality of the circumstances surrounding the conduct; and second, an assessment of the said circumstances

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 11 of 22  vis-à-vis the prevailing norms of conduct, i.e., what the society generally considers moral and respectable. Accordingly, when the law speaks of immoral or, necessarily, disgraceful conduct, it pertains to public and secular morality, not to religious one; it refers to those conducts which are proscribed because they are detrimental to conditions upon which depend the existence and progress of human society. In this light, there is no law which penalizes an unmarried mother by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons; that neither does such situation contravene any fundamental state policy enshrined in the Constitution. Thus, the pregnancy of Leus out of wedlock is not a disgraceful or immoral conduct since she and the father of her child have no impediment to marry each other. (Leus vs. St. Scholastica, January 28, 2015) (29) Can an employee be dismissed for failure to comply with the standards of productivity prescribed by the employer? Yes, it will amount to gross inefficiency, a cause analogous to a  just cause. One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter. "Gross inefficiency" is closely related to "gross neglect," for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. As such, a teacher who failed to measure up to the standards of teaching Filipino classes can be dismissed on ground of gross inefficiency (International School vs. ISAE, February 5, 2014) The same is true to a Human Resources Director who, on two occasions, gave wrong information about leave and holiday pay resulting in confusion in computation of salaries and wages (Reyes-Rayel  vs. Philippine Luen Thai Holdings, July 11, 2012), as well as a machine operator who failed to follow the work standards (Realda vs. New Age Graphics, April 25, 2012) (30)  When does resignation become a viable defense in an action for illegal dismissal? This becomes viable when employer proves that the resignation was voluntary, and its evidence thereon must be clear, positive and convincing. The employer cannot simply rely on the  weakness of the employee's evidence. (D.M. Consunji Corporation vs. Bello, July 29, 2013) (31)Does renaming the corporation constitute cessation of business, thereby warranting a  valid ground for termination of employment? No. The changing of the name of a corporation is no more the creation of a corporation than the changing of the name of a natural person is begetting of a natural person. The act, in both cases, would seem to be what the language which we use to designate it imports – a change of name, and not a change of being. (Zuellig Freight vs. NLRC, July 22, 2013) (32)  When is a dismissed employee entitled to moral and exemplary damages? A dismissed employee isentitled to moral damages when the dismissal is attended by bad faith or fraud or constitutes an act oppressive to labor, or is done in a manner contrary to good morals, good

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 12 of 22 customs or public policy. Exemplary damages may be awarded if the dismissal is effected in a  wanton, oppressive or malevolent manner. (Leus vs. St. Scholastica, January 28, 2015) (33)  When can a financial assistance be awarded in termination of employment? It can be awarded on grounds of equity and social justice. Award of financial assistance, however, shall not be given to validly terminated employees, whose offenses are iniquitous or reflective of some depravity in their moral character. When the employee commits an act of dishonesty, depravity, or iniquity, the grant of financial assistance is misplaced compassion. It is tantamount not only to condoning a patently illegal or dishonest act, but an endorsement thereof. It will be an insult to all the laborers who despite their economic difficulties, strive to maintain good values and moral conduct. (Apacible vs. Multimed Industries, May 30, 2011) (34)  When are quitclaims invalid or against public policy? A quitclaim s invalid or contrary to public policy only (a) when there is clear proof that the waiver was wrangled from an unsuspecting or gullible persons or (b) where the terms of settlement are unconscionable on their face. (Radio Mindanao Network vs. Amurao, October 22, 2014) (35) Under the Labor Code, in cases of termination for a just cause, an employee must be given "ample opportunity to be heard and to defend himself." The omnibus rules implementing the Labor Code, on the other hand, require a hearing and conference during which the employee concerned is given the opportunity to respond to the charge, present his evidence or rebut the evidence presented against him. How can the apparent conflict be resolved?  The following are the guidelines: (a) "ample opportunity to be heard" means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense,  whether in a hearing, conference or some other fair, just and reasonable way; (b) a formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it; and (c) the "ample opportunity to be heard" standard in the Labor Code prevails over the "hearing or conference" requirement in the implementing rules and regulations. (Perez vs. PT&T, April 7, 2009) Should this statutory due process not met in dismissing an employee, what is the consequence? The lack of statutory due process would warrant the payment of indemnity in the form of nominal damages, whose amount is addressed to the sound discretion of the Court taking into account the relevant circumstances. (Samar-Med vs. NLRC, July 15, 2013) The following guidelines are likewise instructive: (1) if the dismissal is based on a just cause under  Article 282 but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 13 of 22 by an act imputable to the employee; and (2) if the dismissal is based on an authorized cause under Article 283 but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of his management prerogative. (Jaka Food Processing vs. Pacot, March 28, 2005)  What is the purpose of the award of nominal damages? Nominal damages is adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. This indemnity is intended not to penalize the employer but to vindicate or recognize the employee's right to statutory due process which was violated by the employer. (Agabon vs. NLRC, November 17, 2004) (36) Explain the contractual due process. It refers to the due process prescribed by the employer itself in its company rules and regulations or code of discipline. Having prescribed the same, the employer is contractually bound to adhere to and observe it. (Abbott Laboratories  vs. Alcaraz, July 23, 2013) (37) Is the assistance of counsel in termination cases indispensable? No, except when the employee himself requests for counsel or when he manifests that he wants a formal hearing on the charges against him. (Lopez vs. Alturas Group, April 11, 2011) (38) Is a non-compete clause / non-involvement proviso / good will clause / postemployment ban valid? Yes, it is not necessarily void for being in restraint of trade as long as there are reasonable limitations as to time, trade, and place. Under, Article 1306 of the New Civil Code, parties to a contract may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (Tiu vs. Platinum Plans, February 28, 2007) Do labor courts have jurisdiction over post-employment ban controversies?  None.  Jurisdiction is with the civil courts as an employee seeks protection under the civil laws and claims no benefits under the Labor Code. The usual primary relief sought is for liquidated damages for breach of a contractual obligation. The other items demanded are not labor benefits demanded by workers generally taken cognizance of in labor disputes, such as payment of wages, overtime compensation or separation pay. The items claimed are the natural consequences flowing from breach of an obligation, intrinsically a civil dispute. (Portillo vs. Lietz, October 10, 2012) LABOR RELATIONS

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 14 of 22 (39)  Are capatazes or foremen who supervise and instruct miners, and other rank-and-file employees under them, assess and evaluate their performance, make regular reports and recommend new systems and procedure of work, as well as guidelines for the discipline of employees, considered as rank-and-file employees? No. They are not rankand-file employees because they are an extension of the management, and as such they may influence the rank-and-file workers under them to engage in slowdowns or similar activities detrimental to the policies, interests or business objectives of the employers. Consequently, they could form their own union. (Lepanto Consolidated vs. Lepanto Capataz Union, February 18, 2013)  Will the inclusion of supervisory employees in a labor organization seeking to represent the bargaining unit of rank-and-file employees divest it of its status as a legitimate labor organization?  No. Any mingling between supervisory and rank-and-file employees in its membership cannot affect its legitimacy for that is not among the grounds for cancellation of its registration, unless such mingling was brought about by misrepresentation, false statement or fraud under Article 239 of the Labor Code, as amended by Republic Act No. 9481. (Samahang Manggagawa sa Charter Chemical vs. Charter Chemical, March 16, 2011) (40)  Who are confidential employees? Confidential employees are defined as those who (1) assist or act in a confidential capacity, in regard (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee - that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. 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." Should confidential employees be excluded from the rank-and-file bargaining unit? Yes. The rationale for their separate category and disqualification to join any labor organization is similar to the inhibition for managerial employees, because if allowed to be affiliated with a union, the latter might not be assured of their loyalty in view of evident conflict of interests and the union can also become company-denominated with the presence of managerial employees in the union membership. Having access to confidential information, confidential employees may also become the source of undue advantage. Said employees may act as a spy or spies of either party to a collective bargaining agreement. (San Miguel Foods vs. San Miguel Corporation, August 1, 2011)

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 15 of 22 (41) Can employees of cooperative collectively bargain with the said employer cooperative? An employee therefore of such a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining for certainly an owner cannot bargain  with himself or his co-owners. However, in so far as it involves cooperatives with employees  who are not members or co-owners thereof, certainly such employees are entitled to exercise the rights of all workers to organization, collective bargaining, negotiations and others as are enshrined in the Constitution and existing laws of the country. (Republic vs. Asiapro Cooperative, November 23, 2007) (42) Explain the bystander rule. Except when it is requested to bargain collectively, an employer is a mere bystander to any petition for certification election; such proceeding is non-adversarial and merely investigative, for the purpose thereof is to determine which organization will represent the employees in their collective bargaining with the employer. The choice of their representative is the exclusive concern of the employees; the employer cannot have any partisan interest therein; it cannot interfere with, much less oppose, the process by filing a motion to dismiss or an appeal from it; not even a mere allegation that some employees participating in a petition for certification election are actually managerial employees will lend an employer legal personality to block the certification election. The employer's only right in the proceeding is to be notified or informed thereof. (Heritage Hotel Manila vs. Secretary of Labor, July 23, 2014) (43) Can the legitimacy of the legal personality of a union be collaterally attacked in a petition for certification election? No. Such legal personality may not be subject to a collateral attack but only through a separate action instituted particularly for the purpose of assailing it. (Legend International Resorts vs. Kilusang Manggagawa ng Legenda, February 23, 2011) (44) Does the Med-Arbiter of the Bureau of Labor Relations (BLR) have the authority to determine the existence of an employer-employee relationship between the parties in a petition for certification election? Yes. the BLR has the original and exclusive jurisdiction to all inter-union and intra-union conflicts, decide all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces whether agricultural or nonagricultural. Necessarily, in the exercise of this jurisdiction over labor-management relations, the med-arbiter has the authority, original and exclusive, to determine the existence of an employer-employee relationship between the parties. (Hijo Resources vs. Mejares, January 13, 2016) (45) Under the CBA, the term “legal dependent” was used but the definition thereof was not provided. How should the word “legal dependent” be construed? The coverage of the term legal dependent as used in a stipulation in a collective bargaining agreement (CBA)

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 16 of 22 granting funeral or bereavement benefit to a regular employee for the death of a legal dependent, if the CBA is silent about it, is to be construed as similar to the meaning that contemporaneous social legislations have set. This is because the terms of such social legislations are deemed incorporated in or adopted by the CBA. Thus, from the statutory definitions of dependent, the civil status of the employee as either married or single is not the controlling consideration in order that a person may qualify as the employee’s legal dependent.  What is rather decidedly controlling is the fact that the spouse, child, or parent is actually dependent for support upon the employee. (Philippine Journalists vs. Journal Employees Union, June 3, 2013) (46)  What agreement shall govern during the 60-day period prior to the expiration of the existing CBA or until a new agreement is reached by the parties? The existing CBA. Article 253 mandates the parties to keep the status quoand to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period prior to the expiration of the old CBA and/or until a new agreement is reached by the parties. (GMC-Independent Labor Union vs. General Milling Corporation, June 15, 2011) (47) Explain the concept of “union security”. "Union security" is a generic term which is applied to and comprehends "closed shop," "union shop," "maintenance of membership" or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. There is union shop when all new regular employees are required to join the union within a certain period for their continued employment. There is maintenance of membership shop when employees, who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated. A closed-shop, on the other hand, may be defined as an enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part. (48) May a corporation 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? No. Without the union shop clause, the company can jeopardize the majority status of the certified union by excluding from union membership all new employees whom the corporation will "absorb" in future mergers and all new employees whom the corporation hires from the beginning of their employment. In this manner, the corporation can increase the

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 17 of 22 number of members of the collective bargaining unit and if this increase is not accompanied by a corresponding increase in union membership, the certified union may lose its majority status and render it vulnerable to attack by another union who wishes to represent the same bargaining unit. Or worse, a certified union whose membership falls below twenty percent (20%) of the total members of the collective bargaining unit may lose its status as a legitimate labor organization altogether, even in a situation where there is no competing union. In such a case, an interested party may file for the cancellation of the union’s certificate of registration  with the Bureau of Labor Relations. (BPI vs. BPI Employees Union-Davao Chapter, August 10, 2010) (49) Can the company summarily dismiss employees expelled by the union under the union security clause? No. The rights of an employee to be informed of the charges against him and to reasonable opportunity to present his side in a controversy with either the company or his own union are not wiped away by a union security clause or a union shop clause in a collective bargaining agreement. (BPI vs. BPI Employees Union-Davao Chapter, October 19, 2011) (50) Explain the concept of strike. Strike is a temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. The term "strike" encompasses not only concerted work stoppages, but also slowdowns, mass leaves, sit-downs, attempts to damage, destroy or sabotage plant equipment and facilities, and similar activities. Explain the concept of picket. Picketing involves merely the marching to and fro at the premises of the employer, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. As applied to a labor dispute, to picket means the stationing of one or more persons to observe and attempt to observe. The purpose of pickets is said to be a means of peaceable persuasion. (Santa Rosa Coca-Cola Plant Employees Union vs. Coca-cola Bottlers Phils., January 24, 2007) (51)May a strike may be regarded as invalid although the labor union h as complied with the strict requirements for staging one as provided in Article 263 of the Labor Code when the same is held contrary to an existing agreement? Yes. Thus, the agreement embodied in the CBA between the parties contained a "no strike, no lockout" provision enjoined both the Union and the Company from resorting to the use of economic weapons available to them under the law and to instead take recourse to voluntary arbitration in settling their disputes. No law or public policy prohibits the Union and the Company from mutually waiving the strike and lockout maces available to them to give way to voluntary arbitration. (C. Alcantara and Sons vs. Court of Appeals, September 29, 2010)

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 18 of 22 (52) Explain the rules on termination of employment of striking employees. A strike staged  without compliance with the requirements of the Labor Code is illegal, and may cause the termination of the employment of the participating union officers and members. The liability, however, for the illegal strike is individual, not collective. To warrant the termination of an officer of the labor organization on that basis, the employer must show that the officer knowingly participated in the illegal strike. An ordinary striking employee cannot be terminated based on his participation in the illegal strike, for the employer must further show that the employee committed illegal acts during the strike. (Hongkong & Shanghai Bank vs. NLRC,  January 11, 2016) (53)  Are employees participating in illegal strike entitled to backwages? No. That backwages are not granted to employees participating in an illegal strike simply accords with the reality that they do not render work for the employer during the period of the illegal strike. The principle of "fair day’s wage for a fair day’s labor" remains as the basic factor in determining the award thereof. If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working. (Olisa vs. Escario, September 27, 2010) (54) Pursuant to the visitorial and enforcement power under Article 128 of the Labor Code, the Secretary of Labor or his duly authorized representatives shall issue writs of execution, to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. What are elements of this “exception clause”? The elements are the following: (a) that the employer contests the findings of the labor regulations officer and raises issues thereon; (b) that in order to resolve such issues, there is a need to examine evidentiary matters; and (c) that such matters are not verifiable in the normal course of inspection. (Meteoro vs. Creative Creatures, July 13, 2009) (55) Does the Secretary of Labor have the power to determine the existence of employeeemployer relationship under its visitorial and enforcement power under Article 128 of the Labor Code?  Yes. No limitation in the law was placed upon the power of the DOLE to determine the existence of an employer-employee relationship. No procedure was laid down  where the DOLE would only make a preliminary finding, that the power was primarily held by the NLRC. The determination of the existence of an employer-employee relationship by the DOLE must be respected. The expanded visitorial and enforcement power of the DOLE granted by RA 7730 would be rendered nugatory if the alleged employer could, by the simple expedient of disputing the employer-employee relationship, force the referral of the matter to the NLRC.

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 19 of 22 If the DOLE makes a finding that there is an existing employer-employee relationship, it takes cognizance of the matter, to the exclusion of the NLRC. The DOLE would have no jurisdiction only if the employer-employee relationship has already been terminated, or it appears, upon review, that no employer-employee relationship existed in the first place. (People’s Broadcasting vs. Secretary of Labor, March 6, 2012) (56)  What are the guidelines to determine whether the Labor Arbiters or the Regional Trial Courts have jurisdiction over controversies involving dismissal of a corporate officer? First, a person’s status as director and stockholder does not automatically convert his dismissal as an intra-corporate dispute. Second, in order to determine whether a dispute constitutes an intra-corporate controversy or not, two elements must be considered, namely: (a) the status or relationship of the parties; and (b) the nature of the question that is the subject of their controversy. (Matling Industries vs. Coros, October 13, 2010) Explain the nature of the controversy test. Under the nature of the controversy test, the incidents of that relationship must also be considered for the purpose of ascertaining whether the controversy itself is intra-corporate. The controversy must not only be rooted in the existence of an intra-corporate relationship, but must as well pertain to the enforcement of the parties’ correlative rights and obligations under the Corporation Code and the internal and intra-corporate regulatory rules of the corporation. If the relationship and its incidents are merely incidental to the controversy or if there will still be conflict even if the relationship does not exist, then no intra-corporate controversy exists. (Cosare vs. Broadcom Asia, February 5, 2014) (57) Does the Labor Arbiter have jurisdiction to rule on the constitutionality of labor contracts, such as a Collective Bargaining Agreement? No. Regular courts have jurisdiction over the case. The employer-employee relationship between the parties is merely incidental and the cause of action ultimately arose from different sources of obligation, i.e., the Constitution. Where the principal relief sought is to be resolved not by reference to the Labor Code or other labor relations statute or a collective bargaining agreement but by the general civil law, the jurisdiction over the dispute belongs to the regular courts of justice and not to the Labor Arbiter and the NLRC. In such situations, resolution of the dispute requires expertise, neither in labor management relations nor in wage structures and other terms and conditions of employment, but rather in the application of the general civil law. Clearly, such claims fall outside the area of competence or expertise ordinarily ascribed to L abor Arbiters and the NLRC and the rationale for granting jurisdiction over such claims to these agencies disappears. (Halagueña vs. PAL, October 2, 2009)

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 20 of 22 (58) Does the NLRC have appellate jurisdiction to review on appeal cases decided by the POEA on matters pertaining to disciplinary actions involving overseas contract  workers? No. When Republic Act No. 8042 withheld the appellate jurisdiction of the NLRC in respect of cases decided by the POEA, the appellate jurisdiction was vested in the Secretary of Labor in accordance with his power of supervision and control under Section 38(1), Chapter 7, Title II, Book III of the Revised Administrative Code of 1987. (59) Can an employee bring grievable issues to voluntary arbitration without the participation of the bargaining union? No. It is the bargaining union or agent which is party to the CBA, which contains the provision on voluntary arbitration. (Tabigue vs. International Copra Export Corporation, December 23, 2009) (60) Does the DOLE Secretary assume the role of voluntary arbitrator once he assumes  jurisdiction over a labor dispute? No. By assuming jurisdiction over a case involving an industry imbued with public interest, the provisions of Article 264 became applicable, any representation to the contrary or that he is deciding the case in his capacity as a voluntary arbitrator notwithstanding. (Philtranco Service Enterprises vs. Philtranco Workers Union, February 26, 2014) (61) Is the Labor Arbiter’s order for the reinstatement of an employee found illegally dismissed immediately executory even during the pendency of the employer’s appeal from the decision? Yes. Pursuant to Article 223 of the Labor Code, the decision of the Labor  Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, pending appeal. Under this provision, the employer must reinstate the employee –  either by physically admitting him under the conditions prevailing prior to his dismissal, and paying his wages; or, at the employer’s option, merely reinstating the employee in the payroll until the decision is reversed by the higher court. Failure of the employer to comply with the reinstatement order, by exercising the options in the alternative, renders him liable to pay the employee’s salaries. Is the dismissed employee required to apply for and the Labor Arbiter needed to issue a writ of execution to trigger the employer’s duty to reinstate the dismissed employee? No. To otherwise require the application for and issuance of a writ of execution as prerequisites for the execution of a reinstatement award would certainly betray and run counter to the very object and intent of Article 223, i.e., the immediate execution of a reinstatement order. If a higher court reverses the Labor Arbiter’s decision, is the employee required to return the wages he had received prior to the reversal of the Labor Arbiter’s decision? No. After the LA’s decision is reversed by a higher tribunal, the employer’s duty to reinstate the

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 21 of 22 dismissed employee is effectively terminated. This means that an employer is no longer obliged to keep the employee in the actual service or in the payroll. The employee, in turn, is not required to return the wages that he had received prior to the reversal of the LA’s decision.  When can an employee be barred from collecting the accrued wages? An employee may be barred from collecting the accrued wages if shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer. To determine  whether an employee is thus barred, two tests must be satisfied: (1) actual delay or the fact that the order of reinstatement pending appeal was not executed prior to its reversal; and (2) the delay must not be due to the employer’s unjustified act or omission. Note that under the second test, the delay must be without the employer’s fault. If the delay is due to the employer’s unjustified refusal, the employer may still be required to pay the salaries notwithstanding the reversal of the Labor Arbiter’s decision. (Bergonio vs. South East Asian, April 21, 2014) (62) If the Labor Arbiter’s order of reinstatemen t is immediately executory, will this be true if ordered by the Voluntary Arbitrator? Yes. Although the timely filing of a motion for reconsideration or of an appeal forestalls the finality of the decision or award of the Voluntary  Arbitrator, the reinstatement aspect of Voluntary Arbitrator’s decision or award remains executory regardless of the filing of such motion for reconsideration or appeal. Mandated by the Constitution, voluntary arbitration really takes precedence over other dispute settlement devices. Thus, the reinstatement order by the Voluntary Arbitrator should have the same authority, force and effect as that of the reinstatement order by the Labor Arbiter not only to encourage parties to settle their disputes through this mode, but also, and more importantly, to enforce the constitutional mandate to protect labor, to provide security of tenure, and to enhance social justice. (Baronda vs. Court of Appeals, October 14, 2015) (63)  What are the guidelines in the filing and acceptance of motions to reduce appeal bond? The guidelines are: (a) the filing of a motion to reduce appeal bond shall be entertained by the NLRC subject to the following conditions: (1) there is meritorious ground; and (2) a bond in a reasonable amount is posted; (b) for purposes o compliance with condition no. (2), a motion shall be accompanied by the posting of a provisional cash or surety bond equivalent to ten percent (10%) of the monetary award subject o the appeal, exclusive o damages and attorney's fees; (c) compliance with the foregoing conditions shall suffice to suspend the running of the 10-day reglementary period to perfect an appeal from the Labor Arbiter's decision to the NLRC; (d) the NLRC retains its authority and duty to resolve the motion to reduce bond and determine the final amount of bond that shall be posted by the appellant, still in accordance with the standards of meritorious grounds and reasonable amount; and (e) in the event that the NLRC denies the motion to reduce bond, or requires a bond that exceeds the amount o the provisional bond, the appellant shall be given a fresh period of ten (10) days from notice of the NLRC order

A LPHA  PHI BETA  UP COLLEGE OF L AW  Page 22 of 22  within which to perfect the appeal by posting the required appeal bond. (Mcburnie vs. Ganzon, October 17, 2013) Is there a hard and fast rule in determining whether the additional bond to be posted is reasonable in relation to the judgment award?  None. It will be up to the NLRC. The decision to reduce the amount of appeal bond, however, is not a blanket power to the NLRC, because the discretion is not unbridled and is subject to strict guidelines because Art. 223 of the Labor Code is a rule of jurisdiction that affords little leeway for liberal interpretation. (Sara Lee Philippines vs. Macatlang, June 4, 2014) (64) Is the filing of a motion for reconsideration of the decision of the DOLE Secr etary, or any labor tribunal, a pre-requisite to filing a Rule 65 petition for certiorari, even if such government agency prohibits the filing thereof? Yes. What needs to be realized is that while a government office may prohibit altogether the filing of a motion for reconsideration with respect to its decisions or orders, the fact remains that certiorari inherently requires the filing of a motion for reconsideration, which is the tangible representation of the opportunity given to the office to correct itself. Unless it is filed, there could be no occasion to rectify. Worse, the remedy of certiorari would be unavailing. Simply put, regardless of the proscription against the filing of a motion for reconsideration, the same may be filed on the assumption that rectification of the decision or order must be obtained, and before a petition for certiorari may be instituted. (Philtranco Service Enterprises vs. Philtranco Workers Union, February 26, 2014) -o0o-