Disini Labor Notes
Short Description
labor...
Description
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
PART I: INTRODUCTORY MATERIALS SECTION 1. LABOR LAW IN GENERAL 1.01 Labor Law Defined LABOR LAW: law governing the rights and duties of the employer and the employee with respect to the terms and conditions of employment, and with respect to labor disputes arising from collective bargaining respecting such terms and conditions 1.02 Law Classification (3 Branches) LABOR STANDARDS LAW: sets out the minimum terms, conditions and benefits of employment that employers must provide or comply with and to which employees are entitled as a matter of legal right. Labor standards, as defined by jurisprudence, are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-f-living allowance, and other monetary and welfare benefits, including occupational, safety and health standards (Maternity Children’s Hospital v Secretary of Labor, GR No. 78909, June 30, 1989). LABOR RELATIONS LAW: defined the status, rights and duties, and the institutional mechanisms, that govern the individual and collective interactions of employers, employees or their representatives. WELFARE LAWS (SOCIAL LEGISLATION): laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. *SOCIAL JUSTICE: the aim, reason and justification of labor laws. Cases (Labor Standards) Batong Buhay Goldmines, Inc. v De La Serna (312 SCRA 22) Labor standards refers to the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost of living allowance and other monetary and welfare benefits, including occupational, safety and health standards. Labor standards cases are governed by Article 128(b) of the Labor Code.
premium pay for working on rest days. Under this provision, managerial employees are “those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision.” 1.03 Basis for Enactment of Labor Law 1. 1987 CONSTITUTION ART. II. SEC. 5: “The maintenance of peace and order, the protection of life, liberty and property and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.” ART. II, SEC. 18: “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” ART. XIII, SEC. 1: “The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its increments.” Cases (Police Power) CMS Estate, Inc. v SSS (132 SCRA 106) The SSS Law implements the general welfare mandate of the Constitution and constitutes a legitimate exercise of the police power of the State, to which the principle of non-impairment of the obligation of contract is not a proper defense. It was enacted pursuant to the policy of the government “to develop, establish gradually and perfect a social security system which shall be suitable to the needs of the people throughout the Philippines, and shall provide protection against the hazards of disability, sickness, old age and death (Sec. 2)
Peñaranda v Baganga Plywood Corp. (489 SCRA 94) Article 82 of the Labor Code exempts managerial employees from the coverage of labor standards. Labor standards provide the working conditions of employees, including entitlement to overtime pay and
NIKKI HIPOLITO
1
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
1.04 Sources of Law A. Labor Code and Related Implementing Rules)
D. Past Practices (Company Practices) Special
Legislation
(including
Cases Mariveles Shipyard Corp. v CA (415 SCRA 573) Petitioner cannot evade its liability by claiming that it had religiously paid the compensation of guards as stipulated under the contract with the security agency. Labor standards are enacted by the legislature to alleviate the plight of workers whose wages barely meet the spiraling costs of their basic needs. Labor laws are considered written in every contract. Stipulations in violation thereof are considered null. Similarly, legislated wage increases are deemed amendments to the contract. Thus, employers cannot hide behind their contracts in order to evade their (or their contractors’ or subcontractors’) liability for noncompliance with the statutory minimum wage. B. Contract (Civil Code) ART. 1305: “A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.” ART. 1306: “The contracting parties 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.” Cases Kasapian ng Malayang Manggagawa sa Coca-Cola v CA (487 SCRA 487) The MOA, being a contract freely entered into by the parties, now constitutes as the law between them, and the interpretation of its contents purely involves an evaluation of the law as applied to the facts herein. C. Collective Bargaining Agreement BOOK 5, RULE I, SEC. 1 (J): CBA “refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit.” Cases DOLE Phils., v Pawis ng Makabayang Obrero (395 SCRA 112) The CBA is the norm of conduct between the parties and compliance therewith is mandated by the express policy of the law.
NIKKI HIPOLITO
Requisites: 1. Freely, voluntarily and continuously given within a considerable length of time 2. Not just a single instance (not granted only once) 3. Should have been done over a long period of time and must be shown to have been consistent and deliberate 4. Not be by reason of a strict legal or contractual obligation, but by reason of an act of liberality on the part of the employer Cases Arco Metal Products Co. v Samahan (554 SCRA 111) In the years 1992, 1993, 1994, 1999, 2002 and 2003, petitioner had adopted a policy of freely, voluntarily and consistently granting full benefits to its employees regardless of the length of service rendered. True, there were only a total of seven employees who benefited from such a practice, but it was an established practice nonetheless. Jurisprudence has not laid down any rule specifying a minimum number of years within which a company practice must be exercised in order to constitute voluntary company practice. Thus, it can be six (6) years, three (3) years, or even as short as two (2) years. Petitioner cannot shirk away from its responsibility by merely claiming that it was a mistake or an error, supported only by an affidavit of its manufacturing group head. McLeod v NLRC (512 SCRA 222) That at one time PMI reimbursed McLeod for his and his wife’s plane tickets in a vacation to London could not be deemed as an established practice considering that it happened only once. To be considered a "regular practice," the giving of the benefits should have been done over a long period, and must be shown to have been consistent and deliberate. Davao Fruits Corporation v Associated Labor Union (225 SCRA 562) The Supplementary Rules and Regulations put to rest all remaining doubts as to the computation of the 13th months pay. Yet, DFC freely, voluntarily and continuously computed and paid the 13th month pay including its items, which were supposed to be excluded, payments for sick/vacation/maternity leave; premiums for work done on rest days and special holidays; and pay for regular holidays. Samahang Manggagawa etc v NLRC (295 SCRA 171) No benefits or privileges previously enjoyed by petitioner union and the other employees were withdrawn as a result of the manner by which private respondent implemented the wage orders. Granted that private respondent had granted an across-the-board increase pursuant to Republic Act No. 6727, that single instance may not be considered an established company practice.
2
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
American Wire and Cable Daily Rated Employees Union v American Wire and Cable Co., Inc. (457 SCRA 684) The giving of the bonus should have been done over a long period of time, and must be shown to have been consistent and deliberate. The 35% premium pay, notwithstanding the fact that it was deliberately given in excess of that required by law, did not ripen into a company practice on account of the fact that it was only granted for 2 years and with respondent corporation’s express reservation that it cannot continue to grant the same in view of the company’s current financial situation. Pag-asa Steel Works, Inc. v CA (486 SCRA 475) To ripen into a company practice that is demandable as a matter of right, the giving of the increase should not be by reason of a strict legal or contractual obligation, but by reason of an act of liberality on the part of the employer. Hence, even if the company continuously grants a wage increase as mandated by a wage order or pursuant to a CBA, the same would not automatically ripen into a company practice. In this case, petitioner granted the increase under Wage Order No. NCR-07 on its belief that it was obliged to do so under the CBA. E. Company Policies Cases Suico v NLRC (513 SCRA 375) Employers are allowed, under the broad concept of management prerogative, to adopt company policies that regulate all aspects of personnel administration including the dismissal and recall of workers. Company policies or practices are binding on the parties. Some can ripen into an obligation on the part of the employer, such as those, which confer benefits on employees or regulate the procedures and requirements for their termination. China Banking Corporation v Borromeo (440 SCRA 622) Company policies are generally binding and valid on the parties and must be complied with until finally revised/amended unilaterally or preferably through negotiation by competent authority unless shown to be grossly oppressive or contrary to law. Maneja v NLRC (290 SCRA 603) “Company personnel policies” are guiding principles stated in broad, longrange terms that express the philosophy or beliefs of an organization’s top authority regarding personnel matters. They deal with matters affecting efficiency and wellbeing of employees and include, among others, the procedure in the administration of wages, benefits, promotions, transfer and other personnel movements, which are usually not spelled out in the
NIKKI HIPOLITO
NOTES
collective agreement. The usual source of grievances, however, is the rules and regulations governing disciplinary actions. 1.05 Law and Worker Cases Amkor Technology v Juangco (512 SCRA 325) While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be expected that every labor dispute will be automatically decided in favor of labor. Management also has its own rights which, as such, are entitled to respect and enforcement in the interest of simple fair play. Cebu Royal Plant v Hon. Deputy Minister of Labor (153 SCRA 38) Bias in favor of labor: We take this opportunity to reaffirm our concern for the lowly worker who, often at the mercy of his employers, must look up to the law for his protection. Fittingly, that law regards him with tenderness and even favor and always with faith and hope in his capacity to help in shaping the nation's future. It is error to take him for granted. He deserves our abiding respect. How society treats him will determine whether the knife in his hands shall be a caring tool for beauty and progress or an angry weapon of defiance and revenge. The choice is obvious, of course. If we cherish him as we should, we must resolve to lighten "the weight of centuries" of exploitation and disdain that bends his back but does not bow his head. 1.06 Labor Case Cases Enriquez v BPI (544 SCRA 593) While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, and the swift unclogging of court dockets is a laudable objective, it nevertheless must not be met at the expense of substantial justice. This Court has time and again reiterated the doctrine that the rules of procedure are mere tools aimed at facilitating the attainment of justice, rather than its frustration. A strict and rigid application of the rules must always be eschewed when it would subvert the primary objective of the rules, that is, to enhance fair trials and expedite justice. Technicalities should never be used to defeat the substantive rights of the other party. Every party-litigant must be afforded the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities. Considering that there was substantial compliance, a liberal interpretation of procedural rules in this labor case is more in keeping with the constitutional mandate to secure social justice.
3
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Smart Communications v Astorga (542 SCRA 435) Contrary to the CA’s ratiocination, the RTC rightfully assumed jurisdiction over the suit and acted well within its discretion in denying Astorga’s motion to dismiss. SMART’s demand for payment of the market value of the car or, in the alternative, the surrender of the car, is not a labor, but a civil, dispute. It involves the relationship of debtor and creditor rather than employee-employer relations. As such, the dispute falls within the jurisdiction of the regular courts. Emmanuel v BPI (544 SCRA 590): case cannot be located Pioneer Concrete Products, Inc. v Todaro (524 SCRA 153) Where no employer-employee relationship exists between the parties and no issue is involved which may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the Regional Trial Court that has jurisdiction. In the present case, no employeremployee relationship exists between petitioners and respondent. In fact, in his complaint, private respondent is not seeking any relief under the Labor Code, but seeks payment of damages on account of petitioners' alleged breach of their obligation under their agreement to employ him. It is settled that an action for breach of contractual obligation is intrinsically a civil dispute. In the alternative, respondent seeks redress on the basis of the provisions of Articles 19 and 21 of the Civil Code. Hence, it is clear that the present action is within the realm of civil law, and jurisdiction over it belongs to the regular courts. Villamaria v CA (487 SCRA 571) The rule is that, the nature of an action and the subject matter thereof, as well as, which court or agency of the government has jurisdiction over the same, are determined by the material allegations of the complaint in relation to the law involved and the character of the reliefs prayed for, whether or not the complainant/plaintiff is entitled to any or all of such reliefs. A prayer or demand for relief is not part of the petition of the cause of action; nor does it enlarge the cause of action stated or change the legal effect of what is alleged. In determining which body has jurisdiction over a case, the better policy is to consider not only the status or relationship of the parties but also the nature of the action that is the subject of their controversy. An employer-employee relationship is an indispensable jurisdictional requisite. The jurisdiction of Labor Arbiters and the NLRC under Article 217 of the Labor Code is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the Labor Code, other labor statutes or their collective bargaining agreement. Not every dispute between an employer and employee involves matters that only the Labor Arbiter and the NLRC can resolve in the exercise of their adjudicatory or quasi-judicial powers. Actions between employers and employees where NIKKI HIPOLITO
NOTES
the employer-employee relationship is merely incidental is within the exclusive original jurisdiction of the regular courts. When the principal relief is to be granted under labor legislation or a collective bargaining agreement, the case falls within the exclusive jurisdiction of the Labor Arbiter and the NLRC even though a claim for damages might be asserted as an incident to such claim. Lapanday Agricultural Development Corp v CA (324 SCRA 77) Where no employer-employee relationship exists between the parties and no issue is involved which may be resolved by reference to the Labor Code, other labor statutes or any collective bargaining agreement, it is the Regional Trial Court that has jurisdiction. In its complaint, private respondent is not seeking any relief under the Labor Code but seeks payment of a sum of money and damages on account of petitioner's alleged breach of its obligation under their Guard Service Contract. The action is within the realm of civil law hence jurisdiction over the case belongs to the regular courts. While the resolution of the issue involves the application of labor laws, reference to the labor code was only for the determination of the solidary liability of the petitioner to the respondent where no employeremployee relation exists. 1.07 Case Decision Cases Philmore v Suganob (557 SCRA 439) The policy of our judicial system is to encourage full adjudication of the merits of an appeal. Procedural niceties should be avoided in labor cases, as the provisions of the Rules of Court are applied only in a suppletory manner. In addition, averments in the pleadings, not the title, are controlling in determining the nature of the proceedings. EDI Staff Builders International Inc. v Magsino (359 SCRA 212) It has been settled that no undue sympathy is to be accorded to any claim of a procedural misstep in labor cases. Such cases must be decided according to justice and equity and the substantial merits of the controversy. Anino v NLRC (290 SCRA 489) This case is an exception to the general rule that findings of fact of the NLRC are to be accorded respect and finality on appeal. It is equally well-settled that this Court will not uphold erroneous conclusions of the NLRC when it reverses decisions of the labor arbiters or when the findings of facts, from which its conclusions were based, are nor supported by substantial evidence. The Court finds occasion to remind courts and quasi-judicial bodies that "[a] decision should faithfully comply with Section 14, Article VIII of the Constitution which provides that no decision shall be rendered by any court
4
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
[or quasi-judicial body] without expressing therein clearly and distinctly the facts of the case and the law on which it is based. . . . It is a requirement of due process and fair play that the parties to a litigation be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court [or quasi-judicial body]. A decision that does not clearly and distinctly stare the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is especially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court [or quasi-judicial body] for review by a higher tribunal." 1.08 Management Function RECOGNITION 1. It is the employer’s prerogative to prescribe reasonable rules and regulations necessary or proper for the conduct of its business or concern to provide certain disciplinary measures to implement said rules and to assure that the same be complied with. At the same time, it is one of the fundamental duties of the employee to yield obedience to all reasonable rules, orders and instructions of the employer and willful or intentional disobedience thereof, as a general rule, justifies recission of the contract of service and the preemptory dismissal of the employee. 2. The Court has always respected a company’s exercise of its prerogative to devise means to improve its operations. Thus, it has held that management is free to regulate, according to its own discretion and judgment, all aspects of employment, including hiring, work assignments, supervision and transfer of employees, working methods, time, place and manner of work. Cases San Miguel Corp. v NLRC (551 SCRA 410) An employer has the prerogative to prescribe reasonable rules and regulations necessary for the proper conduct of its business, to provide certain disciplinary measures in order to implement said rules and to assure that the same would be complied with. An employer enjoys a wide latitude of discretion in the promulgation of policies, rules and regulations on workrelated activities of the employees. It is axiomatic that appropriate disciplinary sanction is within the purview of management imposition. Thus, in the implementation of its rules and policies, the employer has the choice to do so strictly or not, since this is inherent in its right to control and manage its business effectively. Consequently, management has the prerogative to impose sanctions lighter than those specifically prescribed by its rules, or to condone completely the violations of its erring employees. Of course, this prerogative must be exercised free of grave abuse of discretion, bearing in mind the requirements of justice and fair play. NIKKI HIPOLITO
NOTES
Norkis Trading Co., Inc. v Gnilo (544 SCRA 278) Well-settled is the rule that it is the prerogative of the employer to transfer and reassign employees for valid reasons and according to the requirement of its business. An owner of a business enterprise is given considerable leeway in managing his business. Our law recognizes certain rights, collectively called management prerogative as inherent in the management of business enterprises. We have consistently recognized and upheld the prerogative of management to transfer an employee from one office to another within the business establishment, provided that there is no demotion in rank or diminution of his salary, benefits and other privileges and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. This privilege is inherent in the right of employers to control and manage their enterprises effectively. The right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. Managerial prerogatives, however, are subject to limitations provided by law, collective bargaining agreements, and general principles of fair play and justice. Punzal v ETSI Technologies Inc (518 SCRA 66) It is the prerogative of management to regulate, according to its discretion and judgment, all aspects of employment. This flows from the established rule that labor law does not authorize the substitution of the judgment of the employer in the conduct of its business. Such management prerogative may be availed of without fear of any liability so long as it is exercised in good faith for the advancement of the employers’ interest and not for the purpose of defeating or circumventing the rights of employees under special laws or valid agreement and are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner or out of malice or spite. Torreda v Toshiba (515 SCRA 133) The employer’s right to conduct the affairs of his business, according to its own discretion and judgment, is well-recognized. An employer has a free reign and enjoys wide latitude of discretion to regulate all aspects of employment, including the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees. This is a management prerogative, where the free will of management to conduct its own affairs to achieve its purpose takes form. The law, in protecting the rights of workers, authorizes neither oppression nor self-destruction of the employer. Union Filipro v Nestle Phils. Inc. (449 SCRA 521) Employers are accorded rights and privileges to assure their selfdetermination and independence and reasonable return of capital. This mass of privileges comprises the so-called management prerogatives. In this
5
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
connection, the rule is that good faith is always presumed. As long as the company’s exercise of the same is in good faith to advance its interest and not for purpose of defeating or circumventing the rights of employees under the law or a valid agreement, such exercise will be upheld. Star Paper Corp. v Simbol (487 SCRA 228) This company policy was decreed pursuant to what the respondent corporation perceived as management prerogative. This management prerogative is quite broad and encompassing for it covers hiring, work assignment, working method, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and the discipline, dismissal and recall of workers. Except as provided for or limited by special law, an employer is free to regulate, according to his own discretion and judgment all the aspects of employment. LIMITATIONS 1. Law, CBA, fair play and justice 2. Even as the law is solicitous of the welfare of employees, it must also protect the rights of an employer to exercise what are clearly management prerogatives. As long as the company’s exercise of those rights and prerogatives is in good faith to advance its interest and not for the purpose of defeating or circumventing the rights of employees under the laws or valid agreements, such exercise will be upheld. Cases Marival Trading Inc. v NLRC (525 SCRA 708) Terminating employment is one of Marival’s prerogatives as an employer. As an employer, Marival has the right to regulate, according to its discretion and best judgment, work assignment, working methods, processes to be followed, working regulations, transfer of employees, work supervision, layoff of workers; and the discipline, dismissal and recall of workers. Management has the prerogative to discipline its employees and to impose appropriate penalties on erring workers pursuant to company rules and regulations. This Court has upheld a company’s management prerogatives so long as they are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws and valid agreements. Tinio v CA (524 SCRA 533) The act of management in reorganizing as well as transferring its employees to achieve its stated objectives is a legitimate exercise of their management prerogatives, barring any showing of bad faith which is absent in the instant case.
NOTES
1.09 Compromise and Waiver The law frowns upon waivers and compromise as a general principle because it is subject to abuse (the law recognizes that the situation is not of even ad equal terms between the employer and the employee). However, not all compromise and waivers are void or contrary to law. Labor law is not meant to oppress employers. Just as it protects the employees, it also protects employers. There’s a shared responsibility—employees’ right to the fruits of their labor and the employers’ rights to the return of their capital/investment). Test to 1. 2. 3.
determine the validity of compromise and waivers: Voluntarily entered into Proximate equality, no moral ascendancy over the other Amount is reasonable and not unconscionable
ART. 227: “Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court, shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion.” ART. 2028 (NCC): “A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced.” ART. 2036 (NCC): “A compromise comprises only those objects which are definitely stated therein, or which by necessary implication from its terms should be deemed to have been included in the same. A general renunciation of rights is understood to refer only to those that are connected with the dispute which was the subject of the compromise.” Cases Universal Robina v Caballeda (560 SCRA 115) Generally, the law looks with disfavor on quitclaims and releases by employees who have been inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities and frustrate just claims of employees. They are frowned upon as contrary to public policy. A quitclaim is ineffective in barring recovery of the full measure of a worker's rights, and the acceptance of benefits therefrom does not amount to estoppel. In exceptional cases, the Court has accepted the validity of quitclaims executed by employees if the employer is able to prove the following
NIKKI HIPOLITO
6
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
requisites: (1) the employee executes a deed of quitclaim voluntarily; (2) there is no fraud or deceit on the part of any of the parties; (3) the consideration of the quitclaim is credible and reasonable; and (4) the contract is not contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. In this case, petitioners failed to establish all the foregoing requisites. Universal Staffing Services, Inc. v NLRD (559 SCRA 221) Generally, deeds of release, waivers, or quitclaims cannot bar employees from demanding benefits to which they are legally entitled or from contesting the legality of their dismissal, since quitclaims are looked upon with disfavor and are frowned upon as contrary to public policy. Where, however, the person making the waiver has done so voluntarily, with a full understanding thereof, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking. The burden of proving that the quitclaim or waiver was voluntarily entered into rests on the employer. Flight Attendants and Stewards Association of the Phil. v PAL (559 SCRA 252) Quitclaims executed as a result of PAL’s illegal retrenchment program are likewise annulled and set aside because they were not voluntarily entered into by the retrenched employees; their consent was obtained by fraud or mistake, as volition was clouded by a retrenchment program that was, at its inception, made without basis. The law looks with disfavor upon quitclaims and releases by employees pressured into signing by unscrupulous employers minded to evade legal responsibilities. As a rule, deeds of release or quitclaim cannot bar employees from demanding benefits to which they are legally entitled or from contesting the legality of their dismissal. The acceptance of those benefits would not amount to estoppel. The amounts already received by the retrenched employees as consideration for signing the quitclaims should, however, be deducted from their respective monetary awards. Hanjin etc. v Ibanez (555 SCRA 537) The Quitclaims which the respondents signed cannot bar them from demanding what is legally due them as regular employees. As a rule, quitclaims and waivers or releases are looked upon with disfavor and frowned upon as contrary to public policy. They are thus ineffective to bar claims for the full measure of a worker's legal rights, particularly when the following conditions are applicable: 1) where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or (2) where the terms of settlement are unconscionable on their face. To determine whether the Quitclaims signed by respondents are valid, one important factor that must be taken into account is the consideration accepted by respondents; the amount must constitute a reasonable settlement equivalent to the full measure of their legal rights. In this case, the NIKKI HIPOLITO
NOTES
Quitclaims signed by the respondents do not appear to have been made for valuable consideration. Respondents, who are regular employees, are entitled to backwages and separation pay and, therefore, the Quitclaims which they signed cannot prevent them from seeking claims to which they are entitled. Michael Press v Galit (545 SCRA 23) Waiver is a voluntary and intentional relinquishment or abandonment of a known legal right or privilege. It has been ruled that a waiver to be valid and effective must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him. Hence, the management prerogative to discipline employees and impose punishment is a legal right which cannot, as a general rule, be impliedly waived. Arellano v Powertech Corporation (542 SCRA 182) We rebuke Powertech’s unscrupulous and despicable act of using an apparently valid compromise agreement to evade payment of its legal obligation to petitioners. We will not allow employers to make a mockery of our legal system by using legal means to perpetrate fraud. This should serve as a warning to parties in labor cases to endeavor to achieve a just and equitable resolution of their disputes and to enter into compromise agreements in good faith.
SECTION 2. LABOR AND THE CONSTITUTION 2.01 Historical Background/Rationale Cases Antamok Goldfields Mining Co. v CIR (70 Phil. 340) • It should be observed at the outset that our Constitution was adopted in the midst of surging unrest and dissatisfaction resulting from economic and social distress which was threatening the stability of governments the world over. General provisions were inserted in the Constitution which are intended to bring about the needed social and economic equilibrium between component elements of society through the application of what may be termed as the justitia communis advocated by Grotius and Leibnits many years ago to be secured through the counterbalancing of economic and social forces and opportunities which should be regulated, if not controlled, by the State or placed, as it were, in custodia societatis. • "The promotion of social justice to insure the well-being and economic security of all the people' was thus inserted as vital principle in our Constitution. (Sec. 5, Art. II, Constitution.) And in order that this declaration of principle may not just be an empty
7
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
•
•
•
medley of words, the Constitution in various sections thereof has provided the means towards its realization. o Section 6 of Articles XIII declares that the State "shall afford protection to labor, especially to working women and minors, and shall regulated the relations between landowner and tenant, and between labor and capital in industry and in agriculture." It also states that "the State may provide for compulsory arbitration." o In extraordinary cases mentioned in section 16, Articles VI, of the Constitution, the President of the Philippines may be authorized by law, for a limited period and subject to such restrictions as the National Assembly may prescribed, to "promulgate rules and regulations to carry out a declared national policy." In our Bill of Rights we now find the following provision "The right to form associations or societies for purposes not contrary to law shall not be abridged." (Par. 6, section 1, art. III, Constitution.) By and large, these provisions in our Constitution all evince and express the need of shifting emphasis to community interest with a view to affirmative enhancement of human values. In conformity with the constitutional objective and cognizant of the historical fact that industrial and agricultural disputes had given rise to disquietude, bloodshed and revolution in our country, the National Assembly enacted Commonwealth Act No. 103 (Minimum wage for laborers and maximum rental to be paid by tenants, and to enforce compulsory arbitration), and, later, Commonwealth Act. No. 213 (Regulation of labor organizations). The statute was enacted in pursuance of what appears to be deliberate embodiment of a new social policy, founded on the conception of a society integrated not by independent individuals dealing at arms' length, but by interdependent members of a consolidated whole whose interests must be protected against mutual aggression and warfare among and between divers and diverse units which are impelled by counter vailing and opposite individual and group interests, and this is particularly true in the relationship between labor and capital. Social and industrial disturbances which fifty years ago were feudal-like and of isolated importance may now well result in a serious strain upon the entire economic organism of the nation .
NIKKI HIPOLITO
NOTES
•
•
The policy of laissez faire has to some extent given way the assumption by the government of the right of intervention even in contractual relations affected with public interests. In Commonwealth Act No. 103, and it, our Government no longer performs the role of a mere mediator or intervenor but that of the supreme arbiter.
2.02 Nature of Provision Cases PCL Shipping Phils., Inc. v NLRC (511 SCRA 44) In carrying out and interpreting the Labor Code's provisions and its implementing regulations, the employee's welfare should be the primordial and paramount consideration. This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided in Article 4 of the Labor Code which states that "[a]ll doubts in the implementation and interpretation of the provisions of [the Labor] Code including its implementing rules and regulations, shall be resolved in favor of labor", and Article 1702 of the Civil Code which provides that "[i]n case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer." Phil. Airlines, Inc. v Santos (218 SCRA 415) It is a fact that the sympathy of the Court is on the side of the laboring classes, not only because the Constitution imposes such sympathy, but because of the one-sided relation between labor and capital. The constitutional mandate for the promotion of labor is as explicit as it is demanding. The purpose is to place the workingman on an equal plane with management — with all its power and influence — in negotiating for the advancement of his interests and the defense of his rights. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privileges in life should have more privileges in law. 2.03 1987 Constitution A. Labor Sector ART. II, SEC. 18: “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” B. Protection of Labor ART. XIII, SEC. 3: “The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
8
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
for the common good.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
ART. II, SEC. 10: “The State shall promote social justice in all phases of national development.”
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.”
Cases Lopez v Metropolitan Waterworks and Sewerage Authority (462 SCRA ) The Court has invariably affirmed that it will not hesitate to tilt the scales of justice to the labor class for no less than the Constitution dictates that “the State . . . shall protect the rights of workers and promote their welfare.” It is committed to this policy and has always been quick to rise to defense in the rights of labor, as in this case.
7 Basic 1. 2. 3. 4. 5. 6. 7.
Rights of Labor—Right to… Organize Conduct collective bargaining or negotiation with management Engage in peaceful concerted activities including strike in accordance with law Enjoy security of tenure Work under humane conditions Receive a living wage Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law
COMPARE ART. XIV, SEC. 6 (1935): “The State shall afford protection to labor, especially to working women, and minors, and shall regulate the relations between the landowner and tenant, and between labor and capital in industry and in agriculture. The State may provide for compulsory arbitration.” ART. II, SEC. 9 (1973): “The State shall afford protection to labor, promote full employment and equality in employment, ensure equal work opportunities regardless of sex, race, or creed, and regulate the relation between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. The State may provide for compulsory arbitration.” ART. XIII, SEC. 1: “The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power NIKKI HIPOLITO
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.” ART. XIII, SEC. 3: see above.
ART. II, SEC. 18: see above.
Protection to labor, it has been said, extends to all of labor--local and overseas, organized and unorganized, in the public and private sectors. Besides, there is no reason not to apply this principle in favor of workers in the government. The government, including government-owned and controlled corporations, as employers, should set the example in upholding the rights and interests of the working class. C. Social Justice ART. II, SEC. 10: “The State shall promote social justice in all phases of national development.” ART. II, SEC. 5 (1935): “The promotion of social justice to insure the wellbeing and economic security of all the people should be the concern of the State.” ART. XIII, SEC. 1: “The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.”
9
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
ART. XIII, SEC. 2: “The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.”
Agabon v NLRC (442 SCRA 573) Constitutional policy for full protection of labor is not a sword to oppress employers.
DEFINITION: Cases Enriquez v BPI (544 SCRA 453) While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be supposed that every labor dispute will be automatically decided in favor of labor. Management also has its own rights, which, as such, are entitled to respect and enforcement in the interest of simple fair play. Out of its concern for those with less privileges in life, this Court has inclined more often than not toward the worker and upheld his cause in his conflicts with the employer. Such favoritism, however, has not blinded us to the rule that justice is in every case for the deserving, to be dispensed in the light of the established facts and the applicable law and doctrine.
PLDT v NLRC (164 SCRA 671) Not intended to countenance wrongdoing simply because it is committed by the underprivileged. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. 2.04 Constitutional Rights and Labor Law A. Management and the Constitution General Rule: the Constitution protects and promotes the welfare of the employees. Exception: When the employer is right and the employee is wrong.
PLDT v Bolso (530 SCRA 550) Upholding the employee’s interest in disregard of the employer’s right to dismiss and discipline does not serve the cause of social justice. Social justice ceases to be an effective instrument for the “equalization of the social and economic forces” by the State when it is used to shield wrongdoing. Calalang v Williams (70 Phil. 726) Humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objective secular conception may at least be approximated. LIMITS OF USE: Cases Heirs of Jugalbot v CA (518 SCRA 202) On one final note, it may not be amiss to stress that laws which have for their object the preservation and maintenance of social justice are not only meant to favor the poor and underprivileged. They apply with equal force to those who, notwithstanding their more comfortable position in life, are equally deserving of protection from the courts. Social justice is not a license to trample on the rights of the rich in the guise of defending the poor, where no act of injustice or abuse is being committed against them. As the court of last resort, our bounden duty to protect the less privileged should not be carried out to such an extent as to deny justice to landowners whenever truth and justice happen to be on their side. For in the eyes of the Constitution and the statutes, EQUAL JUSTICE UNDER THE LAW remains the bedrock principle by which our Republic abides.
NIKKI HIPOLITO
Cases Sarocam v Interorient Maritime Enterprises, Inc. (493 SCRA 502) We emphasize that the constitutional policy to provide full protection to labor is not meant to be a sword to oppress employers. The commitment of this Court to the cause of labor does not prevent us from sustaining the employer when it is in the right.cÐ Dayan v Bayer of the Phil. Islands (369 SCRA 712) Law, in protecting the rights of labor, authorizes neither oppression nor selfdestruction of an employer company which itself is possessed of rights that must be entitled to recognition and respect. B. Equal Work Opportunities Cases Francisco v NLRC (500 SCRA 690) In affording full protection to labor, this Court must ensure equal work opportunities regardless of sex, race or creed. Even as we, in every case, attempt to carefully balance the fragile relationship between employees and employers, we are mindful of the fact that the policy of the law is to apply the Labor Code to a greater number of employees. This would enable employees to avail of the benefits accorded to them by law, in line with the constitutional mandate giving maximum aid and protection to labor, promoting their welfare and reaffirming it as a primary social economic force in furtherance of social justice and national development.
10
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Star Paper Corp. v Simbol (487 SCRA 228) Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. We note that since the finding of a bona fide occupational qualification justifies an employer’s no-spouse rule, the exception is interpreted strictly and narrowly by these state courts. There must be a compelling business necessity for which no alternative exists other than the discriminatory practice. To justify a bona fide occupational qualification, the employer must prove two factors: (1) that the employment qualification is reasonably related to the essential operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot benefit the petitioners. The protection given to labor in our jurisdiction is vast and extensive that we cannot prudently draw inferences from the legislature’s silence that married persons are not protected under our Constitution and declare valid a policy based on a prejudice or stereotype. Thus, for failure of petitioners to present undisputed proof of a reasonable business necessity, we rule that the questioned policy is an invalid exercise of management prerogative. Corollarily, the issue as to whether respondents Simbol and Comia resigned voluntarily has become moot and academic. C. Labor as Property Cases Executive Secretary v CA (429 SCRA 81) A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong. NIKKI HIPOLITO
NOTES
Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others. Asuncion v NLRC (362 SCRA 56) A worker’s employment is property in the constitutional sense. He cannot be deprived of his work without due process. Maneja v NLRC (290 SCRA 603) It bears stressing that a worker's employment is property in the constitutional sense. He cannot be deprived of his work without due process of law. Substantive due process mandates that an employee can only be dismissed based on just or authorized causes. Procedural due process requires further that he can only be dismissed after he has been given an opportunity to be heard. The import of due process necessitates the compliance of these two aspects. D. Due Process Requirements Cases Ang Tibay v CIR (59 Phil. 635) Requirements: 1. Right to a hearing, includes the right of a party to present his own case and submit evidence in support thereof. 2. The tribunal must consider the evidence presented. 3. Decision must be supported by evidence. 4. Evidence must be substantial—more than a mere scintilla, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable would opine otherwise. 5. Decision must be rendered on the evidence presented at the hearing or at least contained in the records and disclosed to the parties affected. Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. 6. Independent consideration of judge—must not simply accept the views of a subordinate in arriving at a decision. 7. Decision rendered in such a manner as to let the parties know the various issues involved and the reasons for the decision rendered.
11
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Air Manila Inc. v Balatbat (38 SCRA 489) Additional Requirement: A tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction. Note: For termination cases, twin notice rule—Notice to Explain and Notice of Termination (Agabon v NLRC, 442 SCRA 573) Century Textile Mills, Inc. v NLRC (161 SCRA 528) The twin requirements of notice and hearing constitute essential elements of due process in cases of employee dismissal: the requirement of notice is intended to inform the employee concerned of the employer's intent to dismiss and the reason for the proposed dismissal; upon the other hand, the requirement of hearing affords the employee an opportunity to answer his employer's charges against him and accordingly to defend himself therefrom before dismissal is effected. Neither of these two requirements can be dispensed with without running afoul of the due process requirement of the 1987 Constitution. E. Liberty of Contract/Laissez-faire and State Interference Cases Phil. Association of Service Exporters v Drilon (163 SCRA 386) "Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramount is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment. of matters, which may affect their rights and the formulation of policies relative thereto. And one such mater is the formulation of a code of discipline. Indeed, industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights. Thus, even before Article 211 of the labor Code (P.D. 442) was amended by Republic Act No. 6715, it was already declared a policy of the State, "(d) To promote the enlightenment of workers concerning their rights and obligations . . . as employees." This was, of course, amplified by Republic Act No 6715 when it decreed the "participation of workers in decision and policy making processes affecting their rights, duties and welfare." PAL's position that it cannot be saddled with the "obligation" of sharing management prerogatives as during the formulation of the Code, Republic NIKKI HIPOLITO
NOTES
The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General. The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targeted by the Government. Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life. Leyte Land Transportation Co. v Leyte Farmers and Workers Union (80 Phil. 842) State still exercises control/power to interfere where the parties are not equal in standing F.
Welfare State
Cases Alalayan v NPC (24 SCRA 172) The welfare state concept is not alien to the philosophy of our Constitution. It is implicit in quite a few of its provisions. There is the clause on the promotion of social justice to ensure the well-being and economic security of all the people, as well as the pledge of protection to labor with the specific authority to regulate the relations between landowners and tenants and between labor and capital. G. Participation in Decision Making Process Cases PAL v NLRC (225 SCRA 301) Such provision in the collective bargaining agreement may not be interpreted as cession of employees' rights to participate in the deliberation Act No. 6715 had not yet been enacted (Petitioner's Memorandum, p. 44; Rollo, p. 212), cannot thus be sustained. While such "obligation" was not yet founded in law when the Code was formulated, the attainment of a harmonious labor-management relationship and the then already existing state policy of enlightening workers concerning their rights as employees demand no less than the observance of transparency in managerial moves affecting employees' rights. Petitioner's assertion that it needed the implementation of a new Code of Discipline considering the nature of its business cannot be overemphasized. In fact, its being a local monopoly in the business demands the most stringent of measures to attain safe travel for its patrons. Nonetheless, whatever disciplinary measures are adopted cannot be properly implemented in the absence of full cooperation of the employees. Such
12
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
cooperation cannot be attained if the employees are restive on account, of their being left out in the determination of cardinal and fundamental matters affecting their employment.
SECTION 3. LABOR AND THE CIVIL CODE
Phil. Association of Service Exporters v Drilon (163 SCRA 386) The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting their rights and benefits" is not well-taken. The right granted by this provision, again, must submit to the demands and necessities of the State's power of regulation.
ART. 1700: “The relation between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.”
The Constitution declares that: Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
Cases Phil. Telephone and Telegraph Co. v NLRC (272 SCRA 596) While it is true that the parties to a contract may establish any agreements, terms, and conditions that they may deem convenient, the same should not be contrary to law, morals, good customs, public order, or public policy. Carried to its logical consequences, it may even be said that petitioner’s policy against legitimate marital bonds would encourage illicit or commonlaw relations and subvert the sacrament of marriage.
"Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramount is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment. The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General. The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targeted by the Government. Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life. This Court understands the grave implications the questioned Order has on the business of recruitment. The concern of the Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of the State is to provide a decent living to its citizens. The Government has convinced the Court in this case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for.
NIKKI HIPOLITO
3.01 Role of Law
Parenthetically, the Civil Code provisions on the contract of labor state that the relations between the parties, that is, of capital and labor, are not merely contractual, impressed as they are with so much public interest that the same should yield to the common good. It goes on to intone that neither capital nor labor should visit acts of oppression against the other, nor impair the interest or convenience of the public. In the final reckoning, the danger of just such a policy against marriage followed by petitioner PT&T is that it strikes at the very essence, ideals and purpose of marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation. That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but imperatively required. Brew Master International, Inc. v NAFLU (271 SCRA 275) While the employer is not precluded from prescribing rules and regulations to govern the conduct of his employees, these rules and their implementation must be fair, just and reasonable. It must be underscored that no less than our Constitution looks with compassion on the workingman and protects his rights not only under a general statement of a state policy, but under the Article on Social Justice and Human Rights, thus placing labor contracts on a higher plane and with greater safeguards. Verily, relations between capital and labor are not merely contractual. They are impressed with public interest and labor contracts must, perforce, yield to the common good.
13
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
3.02 Employer-Employee Standard of Conduct ART. 1701: Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public. Mutual Obligation: The employer’s obligation to give his employee’s just compensation and treatment carries with it the corollary right to expect from the employee adequate work, diligence and good conduct. A. Fair Treatment Cases Uypitching v Quiambao (510 SCRA 172) The basic principle of human relations, embodied in Article 19 of the Civil Code, provides: Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with justice, give every one his due, and observe honesty and good faith. Article 19, also known as the “principle of abuse of right,” prescribes that a person should not use his right unjustly or contrary to honesty and good faith, otherwise he opens himself to liability. It seeks to preclude the use of, or the tendency to use, a legal right (or duty) as a means to unjust ends. There is an abuse of right when it is exercised solely to prejudice or injure another. The exercise of a right must be in accordance with the purpose for which it was established and must not be excessive or unduly harsh; there must be no intention to harm another. Otherwise, liability for damages to the injured party will attach. B. Law Compliance Cases Sarmiento v Tuico (162 SCRA 676) It must be stressed that while one purpose of the return-to-work order is to protect the workers who might otherwise be locked out by the employer for threatening or waging the strike, the more important reason is to prevent impairment of the national interest in case the operations of the company are disrupted by a refusal of the strikers to return to work as directed. In the instant case, stoppage of work in the firm will be hurtful not only to both the employer and the employees. More particularly, it is the national economy that will suffer because of the resultant reduction in our export earnings and our dollar reserves, not to mention possible cancellation of the contracts of the company with foreign importers. It was particularly for the purpose of avoiding such a development that the labor dispute was certified to the NLRC, with the return-to-work order following as a matter of course under the law. NIKKI HIPOLITO
NOTES
It is also important to emphasize that the return-to-work order not so much confers a right as it imposes a duty; and while as a right it may be waived, it must be discharged as a duty even against the worker's will. Returning to work in this situation is not a matter of option or voluntariness but of obligation. The worker must return to his job together with his co-workers so the operations of the company can be resumed and it can continue serving the public and promoting its interest. That is the real reason such return can be compelled. So imperative is the order in fact that it is not even considered violative of the right against involuntary servitude, as this Court held in Kaisahan ng Mga Manggagawa sa Kahoy v. Gotamco Sawmills. The worker can of course give up his work, thus severing his ties with the company, if he does not want to obey the order; but the order must be obeyed if he wants to retain his work even if his inclination is to strike. A. Employee Obedience and Compliance Employer Orders Cases Gustilo v Wyeth Phil. Inc. (440 SCRA 67) It is the employer's prerogative to prescribe reasonable rules and regulations necessary or proper for the conduct of its business or concern, to provide certain disciplinary measures to implement said rules and to assure that the same be complied with. At the same time, it is one of the fundamental duties of the employee to yield obedience to all reasonable rules, orders, and instructions of the employer, and willful or intentional disobedience thereof, as a general rule, justifies rescission of the contract of service and the preemptory dismissal of the employee. GTE Directories Corp. v Sanchez (197 SCRA 452) To sanction disregard or disobedience by employees of a rule or order laid down by management, on the pleaded theory that the rule or order is unreasonable, illegal, or otherwise irregular for one reason or another, would be disastrous to the discipline and order that it is in the interest of both the employer and his employees to preserve and maintain in the working establishment and without which no meaningful operation and progress is possible. Deliberate disregard or disobedience of rules, defiance of management authority cannot be countenanced. This is not to say that the employees have no remedy against rules or orders they regard as unjust or illegal. They may object thereto, ask to negotiate thereon, bring proceedings for redress against the employer before the Ministry of Labor. But until and unless the rules or orders are declared to be illegal or improper by competent authority, the employees ignore or disobey them at their peril. It is impermissible to reverse the process: suspend enforcement of the orders or rules until their legality or propriety shall have been subject of negotiation, conciliation, or arbitration.
14
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
PCIB v Jacinto (196 SCRA 697) Any employee who is entrusted with responsibility by his employer should perform the task assigned to him with care and dedication.
2. 3.
B. Public Policy Cases Avon Cosmetics Inc. v Luna (511 SCRA 376) Public policy is that principle of the law, which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good. As applied to contracts, in the absence of express legislation or constitutional prohibition, a court, in order to declare a contract void as against public policy, must find that the contract as to the consideration or thing to be done, has a tendency to injure the public, is against the public good, or contravenes some established interests of society, or is inconsistent with sound policy and good morals, or tends clearly to undermine the security of individual rights, whether of personal liability or of private property.
SECTION 4. LABOR AND INTERNATIONAL (LABOR STANDARDS AND WELFARE LAW)
COVENANTS
4.01 Universal Declaration of Human Rights ART. 3: Everyone has the right to life, liberty and security of person. ART. 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. ART. 17: 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property. ART. 22: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. ART. 23: 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
NIKKI HIPOLITO
4.
Everyone, without any discrimination, has the right to equal pay for equal work. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form and to join trade unions for the protection of his interests.
ART. 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. ART.25: 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 4.02 International Covenant on Economic, Social and Cultural Rights PART III ART. 6: 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. ART. 7: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance
15
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays ART. 9: The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance. ART. 11: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and foodexporting countries, to ensure an equitable distribution of world food supplies in relation to need. 4.03 International Covenant on Civil and Political Rights PART III ART. 8: 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations.
NIKKI HIPOLITO
NOTES
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: 4.04 Conventions and Recommendations of the International Labor Organization (ILO) International Conventions: Cases International School Alliance of Educators v Quisumbing (333 SCRA 13) Generally, these conventions recognize the rights already enumerated in our Constitution— a. Right to work, free choice of employment b. Equal pay for equal work (to prevent discrimination): Persons who work with substantially equal qualifications, skill, effort and responsibility under similar conditions, should be paid similar salaries.
SECTION 5. THE LABOR CODE OF THE PHILIPPINES 5.01 Decree Title 5.02 Effectivity 5.03 Policy Declaration ART. III, SEC. 3 (CONSTITUTION) 5.04 Rational, Spirit, Intent Cases Magallanes v Sun Yat Sen Elementary School (542 SCRA 78) The Labor Code was promulgated to promote the welfare and well-being of the working man. Its spirit and intent mandate the speedy administration of justice, with least attention to technicalities but without sacrificing the fundamental requisites of due process.
16
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
5.05 Applicability
D. School Teachers
General Rule: Applies alike to ALL workers, whether agricultural or nonagricultural
Cases Chiang Kaishek College v CA (437 SCRA 171) Public School Teachers are governed by the Civil Service Law. Private School Teachers, on the issue of security of tenure (permanent status determination), are governed by the Manual for Private School issued by the DECS and not the Labor Code—only suppletory.
Exception: As may otherwise have been provided A. Requisite Relationship Cases Uy v Buenao (484 SCRA 628) Employer-Employee Relationship is important—it is jurisdictional provisions of the Labor Code on post-employment to apply.
for
B. Test—GOCC Cases Light Railway Transit Authority v Venus (485 SCRA 301) Under the present state of the law, the test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation such that government corporations created by special charter are subject to its provisions while those incorporated under the general Corporation Law are not within its coverage. C. International Agencies Cases Ebro III v NLRC (261 SCRA 399) General Rule: Labor Code is NOT applicable. The grant of immunity from local jurisdiction to the International Organization is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the DOLE in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by he host country to the prejudice of the member State of the organization, and to ensure the unhampered performance of their functions. Exception: If there’s abuse or any injustice created due to this exemption from suit, the remedy of the employee is to ask the Philippines to withdraw the grant of immunity from suit. Then the legal process and provisions of law in the Philippines will apply.
National Mines and Allied Workers Union v San Ildefonso College etc (299 SCRA 24) On the issue of whether the individual petitioners were permanent employees, it is the Manual of Regulations for Private Schools, and not the Labor Code, which is applicable. This was settled in University of Sto. Tomas v. NLRC, where we explicitly ruled that for a private school teacher to acquire permanent status in employment and, therefore, be entitled to security of tenure, the following requisites must concur: (1) the teacher is a full-time teacher; (2) the teacher must have rendered three (3) consecutive years of service; and (3) such service must have been satisfactory. E. Religious Corporations Cases Austria v NLRC (312 SCRA 410) If ecclesiastical affairs, the Labor Code cannot apply. If not ecclesiastical affairs, the Labor Code applies. Ecclesiastical Affairs: involves the relationship between the church and its members and relate to the matter of faith, religious doctrines, worship and governance of the congregation. F. Managerial Employees Cases Penaranda v Baganga Plywood Corp. (489 SCRA 94) Article 82 of the Labor Code exempts managerial employees from the coverage of labor standards. Labor standards provide the working conditions of employees, including entitlement to overtime pay and premium pay for working on rest days. Under this provision, managerial employees are "those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision." The Implementing Rules of the Labor Code state that managerial employees are those who meet the following conditions: "(1) Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof;
NIKKI HIPOLITO
17
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
"(2) They customarily and regularly direct the work of two or more employees therein; "(3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight." 5.06 Rule Making Power DOLE, as the lead agency in enforcing laws, possesses rule-making power in the enforcement of the Labor Code. A rule or regulation that exceeds the DOLE’s rule-making authority is VOID. Limitation—Rule Making Power—Policy Instructions Cases Sonza v ABS-CBN Broadcasting Group (431 SCRA 583) SONZA argues that Policy Instruction No. 40 issued by then Minister of Labor Blas Ople on 8 January 1979 finally settled the status of workers in the broadcast industry. Under this policy, the types of employees in the broadcast industry are the station and program employees. Policy Instruction No. 40 is a mere executive issuance which does not have the force and effect of law. There is no legal presumption that Policy Instruction No. 40 determines SONZA’s status. A mere executive issuance cannot exclude independent contractors from the class of service providers to the broadcast industry. The classification of workers in the broadcast industry into only two groups under Policy Instruction No. 40 is not binding on this Court, especially when the classification has no basis either in law or in fact. Rizal Empire Insurance Group v NLRC (150 SCRA 565) Petitioners claim, among other things, that respondent Commission committed a grave abuse of discretion amounting to lack of jurisdiction in arbitrarily dismissing petitioners' appeal on a technicality (Rollo, p. 9). It invokes the Rules of Court provision on liberal construction of the Rules in the interest of substantial justice. It will be noted however, that the foregoing provision refers to the Rules of Court. On the other hand, the Revised Rules of the National Labor Relations Commission are clear and explicit and leave no room for interpretation. Moreover, it is an elementary rule in administrative law that administrative regulations and policies enacted by administrative bodies to interpret the law which they are entrusted to enforce, have the force of law, and are entitled to great respect (Espanol v. Philippine Veterans Administration, 137 SCRA 314 [1985]). NIKKI HIPOLITO
NOTES
Under the above-quoted provisions of the Revised NLRC Rules, the decision appealed from in this case has become final and executory and can no longer be subject to appeal. Even on the merits, the ruling of the Labor Arbiter appears to be correct; the consistent promotions in rank and salary of the private respondent indicate he must have been a highly efficient worker, who should be retained despite occasional lapses in punctuality and attendance. Perfection cannot after all be demanded. CBTC Employees Union v Clave (141 SCRA 9) In excluding the union members of herein petitioner from the benefits of the holiday pay law, public respondent predicated his ruling on Section 2, Rule IV, Book III of the Rules to implement Article 94 of the labor Code promulgated by the then Secretary of labor and Policy Instructions No. 9. The questioned Section 2, Rule IV, Book III of the Integrated Rules and the Secretary's Policy Instruction No. 9 add another excluded group, namely, 'employees who are uniformly paid by the month'. While the additional exclusion is only in the form of a presumption that all monthly paid employees have already been paid holiday pay, it constitutes a taking away or a deprivation which must be in the law if it is to be valid. An administrative interpretation which diminishes the benefits of labor more than what the statute delimits or withholds is obviously ultra vires. 5.07 Law Interpretation ART. 1702: ”In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living of the laborer. A. Liberal Construction Cases Manaya v Alabang Country Club (525 SCRA 144) Indeed, there is no room for liberality in the instant case “as it would render futile the very purpose for which the principle of liberality is adopted.” As so rightfully enunciated, “the liberal interpretation in favor of labor stems from the mandate that the workingman’s welfare should be the primordial and paramount consideration.” This Court has repeatedly ruled that delay in the settlement of labor cases cannot be countenanced. Not only does it involve the survival of an employee and his loved ones who are dependent on him for food, shelter, clothing, medicine and education; it also wears down the meager resources of the workers to the point that, not infrequently, they either give up or compromise for less than what is due them.
18
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Duncan Association etc. v Glaxo Wellcome (438 SCRA 343) That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on investments and to expansion and growth. Indeed, while our laws endeavor to give life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers. The law also recognizes that management has rights, which are also entitled to respect and enforcement in the interest of fair play. Salinas v NLRC (319 SCRA 54) It is basic and irrefragable rule that in carrying out and interpreting the provisions of the Labor Code and its implementing regulations, the workingman's welfare should be the primordial and paramount consideration. The interpretation herein made gives meaning and substance to the liberal and compassionate spirit of the law enunciated in Article 4 of Labor Code that "all doubts in the implementation and interpretation of the provisions of the Labor Code including its implementing rules and regulations shall be resolved in favor of labor". B. In favor of labor—Rationale Cases Acuna v CA (489 SCRA 658) It is a time-honored rule that in controversies between a worker and his employer, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the worker’s favor. The policy is to extend the applicability of the decree to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection to labor. Asian Transnational Corp. v CA (425 SCRA 478) Holiday pay is a legislated benefit enacted as part of the Constitutional imperative that the State shall afford protection to labor. Its purpose is not merely "to prevent diminution of the monthly income of the workers on account of work interruptions. In other words, although the worker is forced to take a rest, he earns what he should earn, that is, his holiday pay." It is also intended to enable the worker to participate in the national celebrations held during the days identified as with great historical and cultural significance.
NOTES
Moreover, Sec. 11, Rule IV, Book III of the Omnibus Rules to Implement the Labor Code provides that "Nothing in the law or the rules shall justify an employer in withdrawing or reducing any benefits, supplements or payments for unworked regular holidays as provided in existing individual or collective agreement or employer practice or policy." Abella v NLRC (152 SCRA 140) To give life and meaning to the compassion and liberal spirit of the law, and to extend its applicability to a greater number of employees, who can avail of the benefits under the law. C. Doubt: resolve in favor of labor (liberal construction). There’s doubt when the law is susceptible to 2 or more interpretations, both or all of which are correct. Cases Clemente v GSIS (152 SCRA 500) That Pedro Clemente’s work as janitor at a hospital and a skin clinic increased his risk of contracting leprosy and other ailments is not an unreasonable conclusion. The conservative posture of GSIS and the ECC is not consistent with the liberal interpretation of the Labor Code and the social justice guarantee of the Constitution in favor of workers. It clashes with the injunction in the Labor Code (Art. 4) that as a rule, doubts should be resolved in favor of the claimant-employee. Carolina’s arguments of recurrence of an already cured disease or contracting of a new disease due to increased risks are more plausible. When there are two or more possible explanations regarding the issue of compensability, that which favors the claimant must be chosen. D. No Doubt: no room for interpretation Cases Bonifacio v GSIS (146 SCRA 276) While we do not dispute petitioner's contention that under the law, in case of doubt in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, the doubt shall be resolved in favor of the laborer, we find that the same has no application in this case since the pertinent provisions of the Labor Code leave no room for doubt either in their interpretation or application. E. Sweeping Interpretation
In any event, Art. 4 of the Labor Code provides that all doubts in the implementation and interpretation of its provisions, including its implementing rules and regulations, shall be resolved in favor of labor. For the working man’s welfare should be the primordial and paramount consideration. NIKKI HIPOLITO
Cases Bravo v Employees Compensation Commission (143 SCRA 101) In denying Bravo’s claim for disability benefits, the Court was aware of the mandate that social legislation should be applied in consonance with the
19
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
principle of social justice and protection to labor. However, it cannot adopt a sweeping interpretation of the law in favor of labor lest it engages in judicial legislation. F.
Factual Considerations and Rationality
Cases PAL v NLRC (201 SCRA 687) That there should be care and solicitude in the protection and vindication of the rights of workingmen cannot be gainsaid; but that care and solicitude cannot justify disregard of relevant facts or eschewal of rationality in the construction of the text of applicable rules in order to arrive at a disposition in favor of an employee who is perceived as otherwise deserving of sympathy and commiseration. G. Equity and Moral Consideration Cases Manning International Corp. v NLRC (195 SCRA 155) Equity has been defined as justice outside law, being ethical rather than jural or belonging to the sphere of morals than law. It is grounded on precepts of conscience and not on any sanction of positive law. However, considerations of equity and social justice cannot prevail over against the expressed provision of the labor laws allowing dismissal of employees for cause and without any provision for separation pay.
NOTES
in the contest between labor and capital, the results achieved are fair and in conformity with the rules. PAL v NLRC (201 SCRA 687) To say, as both the Arbiter and the respondent Commission do, that that declaration, "you are dismissed from the service effective immediately," should be construed merely as a suspension, not a dismissal, from employment, is illogical if not downright ludicrous. They attempt to justify this conclusion by adverting to a PAL circular dated June 15, 1966 to the effect that "(a)n employee charged with any crime inimical to the company's interest shall be placed under preventive suspension until the final adjudication of his case," and construe this as a complete foreclosure or prohibition of any alternative or concurrent action on PAL's part, such as the imposition of administrative sanctions or penalties; in other words, any disciplinary action against an erring employee was absolutely dependent on the outcome of the criminal action against the latter, no disciplinary measure of any nature being permissible against the employee "until the final adjudication" of his criminal case. It is a construction that has nothing to support it, is contrary to common sense, and one certainly not justified by the recorded facts. His assertion thereof after seventeen (17) years from his discharge from employment can only mean that he slept on his rights or that his counsel did not share the respondent Commission's belief in the soundness of the theory. His claim must thus be rejected as time-barred, as being unpardonably tardy.
H. Fairness Cases Reliance Surety and Insurance Co., Inc. v NLRC (193 SCRA 365) As a general rule, the sympathy of the Court is on the side of the laboring classes, not only because the Constitution imposes sympathy but because of the one-sided relation between labor and capital. The Court must take care, however, that in the contest between labor and capital, the results achieved are fair and in conformity with the rules. We will not accomplish that objective here by approving the act of the National Labor Relations Commission which we hold to constitute a grave abuse of discretion. I.
Balancing Conflicting Claims
Cases Duncan Association etc. v Glaxo Wellcome Phils. Inc. (438 SCRA 343) The sympathy of the Court is on the side of the laboring classes, not only because the Constitution imposes sympathy but because of the one-sided relation between labor and capital. The Court must take care, however, that
NIKKI HIPOLITO
SECTION 6. WORK RELATIONSHIP 6.01 Work Relationship A. Definitions EMPLOYER • Includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned and controlled corporations and institutions, as well as non-profit private institutions or organizations (Art. 97 (b), Labor Code) • Any person, natural or juridical, employing the services of the employee (Art. 167 (f), Labor Code). • Any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer (Art. 212 (e), Labor Code).
20
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
EMPLOYEE • Includes any individual employed by an employer (Art. 97 (c), Labor Code) • Any person compulsorily covered by the GSIS under Commonwealth Act No. 186, as amended, including the members of the AFP, and any person employed as casual, emergency, temporary, substitute, or contractual, or any person compulsorily covered by the SSS under RA No. 1161, as amended (Art. 167 (g), Labor Code). • Any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, under the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment (Art. 212 (f), Labor Code).
Cases (Employee) Uy v Villanueva (526 SCRA 73) To determine whether there was an employer-employee relationship between petitioners and private respondent, the Court has consistently used the “four-fold” test. The test calls for the determination of (1) whether the alleged employer has the power of selection and engagement of an employee; (2) whether he has control of the employee with respect to the means and methods by which work is to be accomplished; (3) whether he has the power to dismiss; and (4) whether the employee was paid wages. Of the four, the control test is the most important element.
*PERSON: an individual, partnership, association, corporation, business trust, legal representatives or any organized group of persons (Art. 97 (a), Labor Code).
United Pepsi-Cola Supervisory Union v Laguesma (288 SCRA 15) The term “manager” generally refers to “anyone who is responsible for subordinates and other organization resources.”[1] As a class, managers constitute three levels of a pyramid: Top Management _________________ Middle Management _________________ First Line Management (also called Supervisor) ____________________ ____________________ Operatives Or Operating Employees FIRST-LINE MANAGERS – The lowest level in an organization at which individuals are responsible for the work of others is called first-line or firstlevel management. First-line managers direct operating employees only; they do not supervise other managers. Example of first-line managers are the “foreman” or production supervisor in a manufacturing plant, the technical supervisor in a research department, and the clerical supervisor in a large office. First-level managers are often called supervisors.
POLICY INSTRUCTION NO. 40 (1979) The station employees are those whose services are engaged to discharge functions which are usually necessary and desirable to the operation of the station and whose usefulness is not affected by changes of programs, ratings, or formats. They always observe normal working hours. They include employees whose talents, skills or services are engaged by the station without particular reference to any specific program or undertaking, and are not allowed by the station to be engaged or hired by other stations or persons even if such employees do not observe normal working hours. Examples of station employees include those in the station’s staff services such as those working in the administration, financial services, human resources development and legal departments. Program employees, on the other hand, are those whose skills, talents or services are engaged by the station for a particular or specific program or undertaking and who are not required to observe normal working hours such that on some days they work for less than eight (8) hours and on other days beyond the normal work hours observed by station employees. They are allowed to enter into employment contracts with other persons, stations, advertising agencies or sponsoring companies. Program employees include the actors, producers, directors and announcers of specific television or radio programs.
An “employee” usually occupies no office and generally is employed not by action of the directors or stockholders but by the managing officer of the corporation who also determines the compensation to be paid to such employee.
MIDDLE MANAGERS – The term middle management can refer to more than one level in an organization. Middle managers direct the activities of other managers and sometimes also those of operating employees. Middle managers’ principal responsibilities are to direct the activities that implement their organizations’ policies and to balance the demands of their superiors with the capacities of their subordinates. A plant manager in an electronics firm is an example of a middle manager. TOP MANAGERS – Composed of a comparatively small group of executives, top management is responsible for the overall management of the
NIKKI HIPOLITO
21
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
organization. It establishes operating policies and guides the organization’s interactions with its environment. Typical titles of top managers are “chief executive officer,” “president,” and “senior vice-president.” Actual titles vary from one organization to another and are not always a reliable guide to membership in the highest management classification. "Managerial employee" is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book. "Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment." Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own. B. Employer-Employee Relationship “Four-Fold” Test—the test calls for the determination of (1) Whether the alleged employer has the power of selection and engagement of an employee; (2) Whether he has control of the employee with respect to the means and methods by which work is to be accomplished; (3) Whether he has the power to dismiss; and (4) Whether the employee was paid wages. Of the four, the control test is the most important element. FACTUAL TEST Cases Television and Production Exponents Inc v Servana (542 SCRA 578) Jurisprudence is abound with cases that recite the factors to be considered in determining the existence of employer-employee relationship, namely: (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 with respect to the means and method by which the work is to be accomplished. The most important factor involves the control test. Under the control test, there is an employer-employee relationship when the person for whom the services are performed reserves the right to control NIKKI HIPOLITO
NOTES
not only the end achieved but also the manner and means used to achieve that end. Remington Industrial Sales Corp. v Castaneda (507 SCRA 391) The determination of the existence of an employer-employee relationship is defined by law according to the facts of each case, regardless of the nature of the activities involved. Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty; hence, a just cause for termination of employment by the employer under Article 282 of the Labor Code, which enumerates the just causes for termination by the employer. For a valid finding of abandonment, these two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor which is manifested by overt acts from which it may be deduced that the employee has no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified. ESTABLISHED Cases Miguel v JCT Group, Inc. (453 SCRA 529) The test for determining an employer-employee relationship hinges on resolving who has the power to select employees, who pays for their wages, who has the power to dismiss them, and who exercises control in the methods and the results by which the work is accomplished. The last factor, the “control test,” is the most important. In resolving the status of an MOA, the test for determining an employer-employee relationship has to be applied. Wack-Wack Golf and Country Club v NLRC (456 SCRA 280) An independent contractor is one who undertakes “job contracting,” i.e., a person who: (a) carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and (b) has substantial capital or investment in the form of tools, equipments, machineries, work premises and other materials which are necessary in the conduct of the business. Jurisprudential holdings are to the effect that in determining the existence of an independent contractor relationship, several factors may be considered, such as, but not necessarily confined to, whether or not the contractor is carrying on an independent business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of specified pieces of work; the control and
22
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
supervision of the work to another; the employer’s power with respect to the hiring, firing, and payment of the contractor’s workers; the control of the premises; the duty to supply premises, tools, appliances, materials and labor; and the mode, manner and terms of payment. FACTORS Cases Pacific Consultants International Asia, Inc. v Schonfeld (516 SCRA 209) Jurisprudence is firmly settled that whenever the existence of an employment relationship is in dispute, four elements constitute the reliable yardstick: (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’s conduct. It is the so-called "control test" which constitutes the most important index of the existence of the employer-employee relationship–that is, whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. Stated otherwise, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end. Gabriel v Bilon (515 SCRA 29) [T]he relationship between jeepney owners/operators and jeepney drivers under the boundary system is that of employer-employee and not of lessorlessee because in the lease of chattels the lessor loses complete control over the chattel leased although the lessee cannot be reckless in the use thereof, otherwise he would be responsible for the damages to the lessor. In the case of jeepney owners/operators and jeepney drivers, the former exercises supervision and control over the latter. The fact that the drivers do not receive fixed wages but get only that in excess of the so-called "boundary" [that] they pay to the owner/operator is not sufficient to withdraw the relationship between them from that of employer and employee. Philippine Global Communicators, Inc. v De Vera (459 SCRA 260) The Court, in determining the existence of an employer-employee relationship, has invariably adhered to the four-fold test, to wit: [1] the selection and engagement of the employee; [2] the payment of wages; [3] the power of dismissal; and [4] the power to control the employee’s conduct, or the so-called “control test”, considered to be the most important element.
NIKKI HIPOLITO
NOTES
CONTROL TEST Cases Lopez v MWSS (462 SCRA 425) For purposes of determining the existence of employer-employee relationship, the Court has consistently adhered to the four-fold test, namely: (1) whether the alleged employer has the power of selection and engagement of an employee; (2) whether he has control of the employee with respect to the means and methods by which work is to be accomplished; (3) whether he has the power to dismiss; and (4) whether the employee was paid wages. Of the four, the control test is the most important element. It is axiomatic that the existence of an employer-employee relationship cannot be negated by expressly repudiating it in an agreement and providing therein that the employee is "not an MWSS employee" when the terms of the agreement and the surrounding circumstances show otherwise. The employment status of a person is defined and prescribed by law and not by what the parties say it should be. UERMMMC-RDU v Laguesma, cited in Felix v Buenaseda (240 SCRA 139): citation cannot be located R Transport Corp. v Ejandra (428 SCRA 725) Denying the existence of an employer-employee relationship, petitioner insists that the parties’ agreement was for a contract of lease of services. We disagree. Petitioner is barred to negate the existence of an employeremployee relationship. In its petition filed before this Court, petitioner invoked our rulings on the right of an employer to dismiss an employee for just cause. Petitioner maintained that private respondent was justifiably dismissed due to abandonment of work. By adopting said rulings, petitioner impliedly admitted that it was in fact the employer of private respondent. According to the control test, the power to dismiss an employee is one of the indications of an employer-employee relationship. Petitioner’s claim that private respondent was legally dismissed for abandonment was in fact a negative pregnant: an acknowledgement that there was no mutual termination of the alleged contract of lease and that private respondent was its employee. The fact that petitioner paid private respondent on commission basis did not rule out the presence of an employee-employer relationship. Article 97(f) of the Labor Code clearly provides that an employee’s wages can be in the form of commissions. Insular Life v NLRC (179 SCRA 459) Not every form of control that the hiring party reserves to himself over the conduct of the party hired in relation to the services rendered may be accorded the effect of establishing an employer-employee relationship between them in the legal or technical sense of the term. A line must be drawn somewhere, if the recognized distinction between an employee and
23
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
an individual contractor is not to vanish altogether. Realistically, it would be a rare contract of service that gives untrammelled freedom to the party hired and eschews any intervention whatsoever in his performance of the engagement. Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it. The distinction acquires particular relevance in the case of an enterprise affected with public interest, as is the business of insurance, and is on that account subject to regulation by the State with respect, not only to the relations between insurer and insured but also to the internal affairs of the insurance company. ECONOMIC TEST Cases Sevilla v CA (160 SCRA 171) In general, we have relied on the so-called right of control test, "where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end." Subsequently, however, we have considered, in addition to the standard of right-of control, the existing economic conditions prevailing between the parties, like the inclusion of the employee in the payrolls, in determining the existence of an employer-employee relationship.
NOTES
reference to base the relationship on; and due to the complexity of the relationship based on the various positions and responsibilities given to the worker over the period of the latter’s employment. Thus, the determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity, such as: (1) the extent to which the services performed are an integral part of the employer’s business; (2) the extent of the worker’s investment in equipment and facilities; (3) the nature and degree of control exercised by the employer; (4) the worker’s opportunity for profit and loss; (5) the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; (6) the permanency and duration of the relationship between the worker and the employer; and (7) the degree of dependency of the worker upon the employer for his continued employment in that line of business. The proper standard of economic dependence is whether the worker is dependent on the alleged employer for his continued employment in that line of business. AGREEMENT Cases Chavez v NLRC (448 SCRA 478) The existence of an employer-employee relationship cannot be negated by expressly repudiating it in a contract and providing therein that the employee is an independent contractor when, as in this case, the facts clearly show otherwise. Indeed, the employment status of a person is defined and prescribed by law and not by what the parties say it should be.
Francisco v NLRC (500 SCRA 690) There are instances when, aside from the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished, economic realities of the employment relations help provide a comprehensive analysis of the true classification of the individual, whether as employee, independent contractor, corporate officer or some other capacity.
San Miguel Corp. v Aballa (461 SCRA 392) In legitimate labor contracting, the law creates an employer-employee relationship for a limited purpose, i.e., to ensure that the employees are paid their wages. The principal employer becomes jointly and severally liable with the job contractor, only for the payment of the employees’ wages whenever the contractor fails to pay the same. Other than that, the principal employer is not responsible for any claim made by the employees.
The better approach would therefore be to adopt a two-tiered test involving: (1) the putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished; and (2) the underlying economic realities of the activity or relationship.
In labor-only contracting, the statute creates an employer-employee relationship for a comprehensive purpose: to prevent a circumvention of labor laws. The contractor is considered merely an agent of the principal employer and the latter is responsible to the employees of the labor-only contractor as if such employees had been directly employed by the principal employer.
This two-tiered test would provide us with a framework of analysis, which would take into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. This is especially appropriate in this case where there is no written agreement or terms of NIKKI HIPOLITO
The Contract of Services between SMC and Sunflower shows that the parties clearly disavowed the existence of an employer-employee relationship
24
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
between SMC and private respondents. The language of a contract is not, however, determinative of the parties’ relationship; rather it is the totality of the facts and surrounding circumstances of the case. A party cannot dictate, by the mere expedient of a unilateral declaration in a contract, the character of its business, i.e., whether as labor-only contractor or job contractor, it being crucial that its character be measured in terms of and determined by the criteria set by statute. Lopez v MWSS (462 SCRA 428) MWSS makes an issue out of the proviso in the Agreement that specifically denies the existence of employer-employee relationship between it and petitioners. It is axiomatic that the existence of an employer-employee relationship cannot be negated by expressly repudiating it in an agreement and providing therein that the employee is "not an MWSS employee" when the terms of the agreement and the surrounding circumstances show otherwise. The employment status of a person is defined and prescribed by law and not by what the parties say it should be. Sonza v ABS-CBN Broadcasting Corp. (431 SCRA 381) In any event, not all rules imposed by the hiring party on the hired party indicate that the latter is an employee of the former. In this case, SONZA failed to show that these rules controlled his performance. We find that these general rules are merely guidelines towards the achievement of the mutually desired result, which are top-rating television and radio programs that comply with standards of the industry. We have ruled that: Further, not every form of control that a party reserves to himself over the conduct of the other party in relation to the services being rendered may be accorded the effect of establishing an employer-employee relationship. The facts of this case fall squarely with the case of Insular Life Assurance Co., Ltd. vs. NLRC. In said case, we held that: Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it. Insular Life Assurance Co. Ltd. v NLRC (287 SCRA 476) It is axiomatic that the existence of an employer-employee relationship cannot be negated by expressly repudiating it in the management contract and providing therein that the “employee” is an independent contractor when the terms of agreement clearly show otherwise. For, the employment status of a person is defined and prescribed by law and not by what the parties say it should be. In determining the status of the management NIKKI HIPOLITO
NOTES
contract, the “four-fold test” on employment earlier mentioned has to be applied. BROADCAST-TALENTS-PERFORMERS Cases Television etc. v Servana (542 SCRA 578) In concluding that respondent was an employee of TAPE, the Court of Appeals applied the "four-fold test" in this wise: First. The selection and hiring of petitioner was done by private respondents. In fact, private respondents themselves admitted having engaged the services of petitioner only in 1995 after TAPE severed its relations with RPN Channel 9. By informing petitioner through the Memorandum dated 2 March 2000, that his services will be terminated as soon as the services of the newly hired security agency begins, private respondents in effect acknowledged petitioner to be their employee. For the right to hire and fire is another important element of the employer-employee relationship. Second. Payment of wages is one of the four factors to be considered in determining the existence of employer-employee relation. . . Payment as admitted by private respondents was given by them on a monthly basis at a rate of P5,444.44. Third. Of the four elements of the employer-employee relationship, the "control test" is the most important. x x x The bundy cards representing the time petitioner had reported for work are evident proofs of private respondents’ control over petitioner more particularly with the time he is required to report for work during the noontime program of "Eat Bulaga!" If it were not so, petitioner would be free to report for work anytime even not during the noontime program of "Eat Bulaga!" from 11:30 a.m. to 1:00 p.m. and still gets his compensation for being a "talent." Precisely, he is being paid for being the security of "Eat Bulaga!" during the above-mentioned period. The daily time cards of petitioner are not just for mere record purposes as claimed by private respondents. It is a form of control by the management of private respondent TAPE. Dumpit-Murillo v CA (524 SCRA 290) An employer-employee relationship was created when the private respondents started to merely renew the contracts repeatedly fifteen times or for four consecutive years. The practice of having fixed-term contracts in the industry does not automatically make all talent contracts valid and compliant with labor law.
25
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
The assertion that a talent contract exists does not necessarily prevent a regular employment status. The duties of petitioner as enumerated in her employment contract indicate that ABC had control over the work of petitioner. Aside from control, ABC also dictated the work assignments and payment of petitioner’s wages. ABC also had power to dismiss her. All these being present, clearly, there existed an employment relationship between petitioner and ABC. ABS-CBN v Nazareno (503 SCRA 204) In the case at bar, however, the employer-employee relationship between petitioner and respondents has been proven. First. In the selection and engagement of respondents, no peculiar or unique skill, talent or celebrity status was required from them because they were merely hired through petitioner’s personnel department just like any ordinary employee. Second. The so-called “talent fees” of respondents correspond to wages given as a result of an employer-employee relationship. Respondents did not have the power to bargain for huge talent fees, a circumstance negating independent contractual relationship. Third. Petitioner could always discharge respondents should it find their work unsatisfactory, and respondents are highly dependent on the petitioner for continued work. Fourth. The degree of control and supervision exercised by petitioner over respondents through its supervisors negates the allegation that respondents are independent contractors. The presumption is that when the work done is an integral part of the regular business of the employer and when the worker, relative to the employer, does not furnish an independent business or professional service, such work is a regular employment of such employee and not an independent contractor. The Court will peruse beyond any such agreement to examine the facts that typify the parties’ actual relationship. METHOD WAGE PAYMENT Cases Almirez v Infinite Corp Technology Corp. (481 SCRA 364) As for the designation of the payments to petitioner as "salaries," it is not determinative of the existence of an employer-employee relationship. "Salary" is a general term defined as "a remuneration for services given." It is the above-quoted contract of engagement of services-letter dated September 30, 1999, together with its attachments, which is the law NIKKI HIPOLITO
NOTES
between the parties. Even petitioner concedes rendering service "based on the contract," which, as reflected earlier, is bereft of a showing of power of control, the most crucial and determinative indicator of the presence of an employer-employee relationship. Lazaro v SSS (435 SCRA 472) The fact that Laudato was paid by way of commission does not preclude the establishment of an employer-employee relationship. In Grepalife v. Judico, the Court upheld the existence of an employer-employee relationship between the insurance company and its agents, despite the fact that the compensation that the agents on commission received was not paid by the company but by the investor or the person insured. The relevant factor remains, as stated earlier, whether the "employer" controls or has reserved the right to control the "employee" not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. HOURS OF WORK Cases Lazaro v SSS (435 SCRA 472) Neither does it follow that a person who does not observe normal hours of work cannot be deemed an employee. In Cosmopolitan Funeral Homes, Inc. v. Maalat, the employer similarly denied the existence of an employeremployee relationship, as the claimant according to it, was a "supervisor on commission basis" who did not observe normal hours of work. This Court declared that there was an employer-employee relationship, noting that "[the] supervisor, although compensated on commission basis, [is] exempt from the observance of normal hours of work for his compensation is measured by the number of sales he makes." PROOF Cases Television etc. v Servana (542 SCRA 578) The bundy cards representing the time petitioner had reported for work are evident proofs of private respondents’ control over petitioner more particularly with the time he is required to report for work during the noontime program of "Eat Bulaga!" If it were not so, petitioner would be free to report for work anytime even not during the noontime program of "Eat Bulaga!" from 11:30 a.m. to 1:00 p.m. and still gets his compensation for being a "talent." Precisely, he is being paid for being the security of "Eat Bulaga!" during the above-mentioned period. The daily time cards of petitioner are not just for mere record purposes as claimed by private respondents. It is a form of control by the management of private respondent TAPE. We find the annexes submitted by the private respondents insufficient to prove that herein petitioner is indeed an independent contractor. None of
26
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
the above conditions exist in the case at bar. Private respondents failed to show that petitioner has substantial capital or investment to be qualified as an independent contractor. They likewise failed to present a written contract which specifies the performance of a specified piece of work, the nature and extent of the work and the term and duration of the relationship between herein petitioner and private respondent TAPE. Lopez v Bodega City (532 SCRA 56) It is a basic rule of evidence that each party must prove his affirmative allegation. If he claims a right granted by law, he must prove his claim by competent evidence, relying on the strength of his own evidence and not upon the weakness of that of his opponent. The test for determining on whom the burden of proof lies is found in the result of an inquiry as to which party would be successful if no evidence of such matters were given. In filing a complaint before the Labor Arbiter for illegal dismissal based on the premise that she was an employee of respondent, it is incumbent upon petitioner to prove the employee-employer relationship by substantial evidence. Indeed, if petitioner was really an employee of respondents for that length of time, she should have been able to present salary vouchers or pay slips and not just a single petty cash voucher. The Court agrees with respondents that petitioner could have easily shown other pieces of evidence such as a contract of employment, SSS or Medicare forms, or certificates of withholding tax on compensation income; or she could have presented witnesses to prove her contention that she was an employee of respondents. McLeod v NLRC (512 SCRA 222) McLeod could have presented evidence to support his allegation of employer-employee relationship between him and any of Filsyn, SRTI, and FETMI, but he did not. Appointment letters or employment contracts, payrolls, organization charts, SSS registration, personnel list, as well as testimony of co-employees, may serve as evidence of employee status. It is a basic rule in evidence that parties must prove their affirmative allegations. While technical rules are not strictly followed in the NLRC, this does not mean that the rules on proving allegations are entirely ignored. Bare allegations are not enough. They must be supported by substantial evidence at the very least. Domasig v NLRC (261 SCRA 779) It has long been established that in administrative and quasi-judicial proceedings, substantial evidence is sufficient as a basis for judgment on NIKKI HIPOLITO
NOTES
the existence of employer-employee relationship. No particular form of evidence is required is required to prove the existence of such employeremployee relationship. Any competent and relevant evidence to prove the relationship may be admitted. Substantial evidence has been defined to be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and its absence is not shown by stressing that there is contrary evidence on record, direct or circumstantial, for the appellate court cannot substitute its own judgment or criterion for that of the trial court in determining wherein lies the weight of evidence or what evidence is entitled to belief. ABSENCE OF RELATIONSHIP Cases Lopez v Bodega City (532 SCRA 56) Not every form of control that the hiring party reserves to himself over the conduct of the party hired in relation to the services rendered may be accorded the effect of establishing an employer-employee relationship between them in the legal or technical sense of the term. A line must be drawn somewhere, if the recognized distinction between an employee and an individual contractor is not to vanish altogether. Realistically, it would be a rare contract of service that gives untrammeled freedom to the party hired and eschews any intervention whatsoever in his performance of the engagement. Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it. It has been established that there has been no employer-employee relationship between respondents and petitioner. Their contractual relationship was governed by the concessionaire agreement embodied in the 1992 letter. Thus, petitioner was not dismissed by respondents. Instead, as shown by the letter of Yap to her dated February 15, 1995, their contractual relationship was terminated by reason of respondents' termination of the subject concessionaire agreement, which was in accordance with the provisions of the agreement in case of violation of its terms and conditions. Abante v Lamadrid etc (430 SCRA 368) Applying the aforementioned test, an employer-employee relationship is notably absent in this case. It is undisputed that petitioner Abante was a commission salesman who received 3% commission of his gross sales. Yet no quota was imposed on him by the respondent; such that a dismal
27
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
performance or even a dead result will not result in any sanction or provide a ground for dismissal. He was not required to report to the office at any time or submit any periodic written report on his sales performance and activities. Although he had the whole of Mindanao as his base of operation, he was not designated by respondent to conduct his sales activities at any particular or specific place. He pursued his selling activities without interference or supervision from respondent company and relied on his own resources to perform his functions. Respondent company did not prescribe the manner of selling the merchandise; he was left alone to adopt any style or strategy to entice his customers. While it is true that he occasionally reported to the Manila office to attend conferences on marketing strategies, it was intended not to control the manner and means to be used in reaching the desired end, but to serve as a guide and to upgrade his skills for a more efficient marketing performance. As correctly observed by the appellate court, reports on sales, collection, competitors, market strategies, price listings and new offers relayed by petitioner during his conferences to Manila do not indicate that he was under the control of respondent.14 Moreover, petitioner was free to offer his services to other companies engaged in similar or related marketing activities as evidenced by the certifications issued by various customers. DENIAL- NEGATIVE PREGNANT RULE Cases R Transport Corp. v Ejandra (428 SCRA 724) A negative pregnant is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, has been held that the qualifying circumstances alone are denied while the fact itself is admitted. Petitioner’s claim that private respondent was legally dismissed for abandonment was in fact a negative pregnant: an acknowledgement that there was no mutual termination of the alleged contract of lease and that private respondent was its employee. The fact that petitioner paid private respondent on commission basis did not rule out the presence of an employee-employer relationship. Article 97(f) of the Labor Code clearly provides that an employee’s wages can be in the form of commissions. 6.02 Independent Contractor and Labor Contractor Only ART. 106: Contractor or Subcontractor. Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this code.
NIKKI HIPOLITO
NOTES
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations with these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provisions of this Code. There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. ART. 107: Indirect Employer. The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. ART. 109: Solidary Liability. The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employees. A. Independent Contractor a. Management Function—Determination Needed Cases Manila Electric Co. v Quisumbing (302 SCRA 173) Additionally, We recognize that contracting out is not unlimited; rather, it is a prerogative that management enjoys subject to well-defined legal limitations. As we have previously held, the company can determine in its best business judgment whether it should contract out the performance of some of its work for as long as the employer is motivated by good faith, and the contracting out must not have been resorted to circumvent the law or
28
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
must not have been the result of malicious or arbitrary action. The Labor Code and its implementing rules also contain specific rules governing contracting out (Department or Labor Order No. 10, May 30, 1997, Sections 1-25).
NOTES
Garil’s capitalization. Second, the work of the promo-girls was directly related to the principal business or operation of Burlingame. Marketing and selling of products is an essential activity to the main business of the principal.
b. Trilateral Relationship Cases PAL v Ligan (547 SCRA 181) In legitimate contracting, there exists a trilateral relationship under which there is a contract for a specific job, work or service between the principal and the contractor or subcontractor, and a contract of employment between the contractor or subcontractor and its workers. Hence, there are three parties involved in these arrangements, the principal which decides to farm out a job or service to a contractor or subcontractor, the contractor or subcontractor which has the capacity to independently undertake the performance of the job, work or service, and the contractual workers engaged by the contractor or subcontractor to accomplish the job, work or service. c. Requirements—Independent Contractor Cases PAL v Ligan (547 SCRA 181) One who claims to be an independent contractor has to prove that he contracted to do the work according to his own methods and without being subject to the employer's control except only as to the results. Big AA Manufacturer v Antonio (484 SCRA 333) We also agree that Eutiquio was not an independent contractor for he does not carry a distinct and independent business, and he does not possess substantial capital or investment in tools, equipment, machinery or work premises. He works within petitioner’s premises using the latter’s tools and materials, as admitted by petitioner. Eutiquio is also under petitioner’s control and supervision. Attesting to this is petitioner’s admission that it allowed respondents to use its facilities for the "proper implementation" of job orders. Moreover, the Implementing Guidelines regulating attendance, overtime, deadlines, penalties; providing petitioner’s right to fire employees or "contractors"; requiring the carpentry division to join petitioner’s exercise program; and providing rules on machine maintenance, all reflect control and supervision over respondents. Lakas v Burlingame Corp. (524 SCRA 690) Secretary that F. Garil is not an independent contractor. First, F. Garil does not have substantial capitalization or investment in the form of tools, equipment, machineries, work premises, and other materials, to qualify as an independent contractor. No proof was adduced to show F. NIKKI HIPOLITO
Lastly, F. Garil did not carry on an independent business or undertake the performance of its service contract according to its own manner and method, free from the control and supervision of its principal, Burlingame. d. Desirable—Unnecessary Cases Manila Electric Co. v Benamira (463 SCRA 331) The individual respondents can not be considered as regular employees of the MERALCO for, although security services are necessary and desirable to the business of MERALCO, it is not directly related to its principal business and may even be considered unnecessary in the conduct of MERALCO’s principal business, which is the distribution of electricity. Coca-Cola Bottlers Phil. Inc v NLRC (307 SCRA 131) We perceive at the outset the disposition of the NLRC that janitorial services are necessary and desirable to the trade or business of petitioner COCA COLA. But this is inconsistent with our pronouncement in Kimberly Independent Labor Union v. Drilon where the Court took judicial notice of the practice adopted in several government and private institutions and industries of hiring janitorial services on an "independent contractor basis." In this respect, although janitorial services may be considered directly related to the principal business of an employer, as with every business, we deemed them unnecessary in the conduct of the employer's principal business. e. Proof Cases Oregas v NLRC (559 SCRA 153) The Court succinctly ruled that there was no denial of due process despite the failure of the lawyer to file a motion for reconsideration of the trial court's order declaring his client to have waived the right to present evidence. It was held that the party had the opportunity to be heard when he assailed the trial court's decision through an appeal to the CA. The party was not considered to have been deprived of due process of law even if he had not been able to present evidence in his behalf and the trial court's decision was based only on the evidence presented by the opposing party.
29
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
He had been able to present all his evidence and fully ventilate his arguments before the LA, then on appeal before the NLRC, and even in his petition for certiorari before the CA. Akin to the aforementioned cases, herein petitioner's assertion, that he had been denied due process of law due to the negligence of counsel, is hollow. He had more than ample opportunity to be heard and fully thresh out his case. The reason he proffers as a ground for this Court to nullify the CA Decision - that his counsel's failure to notify him of the CA Decision and move for the reconsideration thereof deprived him of due process – had not been clearly established so as to justify divergence from the long-settled rule on finality of judgments and the principle that clients are bound by the actions of their counsels. Hence, the Court is bound by the CA's Decision which has become final and executory due to the simple negligence of petitioner's former counsel in not filing a motion for reconsideration within the reglementary period.
NOTES
does not, by itself, render the client responsible as an employer of the security guards concerned and liable for their wrongful acts or omissions. PAL v NLRC (289 SCRA 430) Private respondents were performing work, which are directly related to its nature of business. Hence, they are deemed regular employees pursuant to Art. 280 of the Labor Code. They had been employed for a period ranging from 1 year 4 months to 11 years 10 months. The continuous employment indicates that their jobs are directly necessary to the daily operation of petitioner’s business. Private respondents were supervised, directed and controlled by PAL’s regular employees. Thus, G.C. is a labor-only contractor who acted as mere supplier of manpower. g. Liability
f. Employer-Employee Relationship Cases Mercury Drug Corp. v Libunao (434 SCRA 404) In Soliman, Jr. v. Tuazon, we held that where the security agency recruits, hires and assigns the works of its watchmen or security guards to a client, the employer of such guards or watchmen is such agency, and not the client, since the latter has no hand in selecting the security guards. Thus, the duty to observe the diligence of a good father of a family cannot be demanded from the said client: ... [I]t is settled in our jurisdiction that where the security agency, as here, recruits, hires and assigns the work of its watchmen or security guards, the agency is the employer of such guards or watchmen. Liability for illegal or harmful acts committed by the security guards attaches to the employer agency, and not to the clients or customers of such agency. As a general rule, a client or customer of a security agency has no hand in selecting who among the pool of security guards or watchmen employed by the agency shall be assigned to it; the duty to observe the diligence of a good father of a family in the selection of the guards cannot, in the ordinary course of events, be demanded from the client whose premises or property are protected by the security guards. Indeed, the petitioner had assigned Sido to help the management open and close the door of the drug store; inspect the bags of customers as they enter the store; and, check the receipts issued by the cashier to said customers for their purchases. However, such circumstances do not automatically make the security guard the employee of the petitioner, and, as such, liable for the guard's tortious acts. The fact that a client company may give instructions or directions to the security guards assigned to it, NIKKI HIPOLITO
Cases Jaguar v Sales (552 SCRA 295) Under Articles 106, 107 and 109 of the Labor Code, the joint and several liability of the contractor and the principal is mandated to assure compliance of the provisions therein including the statutory minimum wage. The contractor, petitioner in this case, is made liable by virtue of his status as direct employer. On the other hand, Delta Milling, as principal, is made the indirect employer of the contractor's employees for purposes of paying the employees their wages should the contractor be unable to pay them. This joint and several liability facilitates, if not guarantees, payment of the workers' performance of any work, task, job or project, thus giving the workers ample protection as mandated by the 1987 Constitution. MERALCO, etc. v NLRC (548 SCRA 315) ART. 106. CONTRACTOR OR SUBCONTRACTOR x x x. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. Taken together, an indirect employer (as defined by Article 107) can only be held solidarily liable with the independent contractor or subcontractor (as provided under Article 109) in the event that the latter fails to pay the wages of its employees (as described in Article 106). The joint and several liability of the principal with the contractor and subcontractor were enacted to ensure compliance with the provisions of the
30
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Labor Code, principally those on statutory minimum wage. This liability facilitates, if not guarantees, payment of the workers’ compensation, thus, giving the workers ample protection as mandated by the 1987 Constitution. Eparwa Security v Liceo de Cagayan (508 SCRA 370) Art. 106. Contractor or subcontractor. — Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor may, by appropriate regulations, restrict or prohibit the contracting out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code. There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such persons are performing activities which are directly related to the principal business of the employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. Article 107. Indirect employer. — The provisions of the immediately preceding Article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. Article 109. Solidary liability. — The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers.
NIKKI HIPOLITO
NOTES
This joint and several liability of the contractor and the principal is mandated by the Labor Code to assure compliance of the provisions therein including the statutory minimum wage [Article 99, Labor Code]. The contractor is made liable by virtue of his status as direct employer. The principal, on the other hand, is made the indirect employer of the contractor’s employees for purposes of paying the employees their wages should the contractor be unable to pay them. This joint and several liability facilitates, if not guarantees, payment of the workers’ performance of any work, task, job or project, thus giving the workers ample protection as mandated by the 1987 Constitution [See Article II Sec. 18 and Article XIII Sec. 3]. LDCU’s ultimate liability comes into play because of the expiration of the Contract for Security Services. There is no privity of contract between the security guards and LDCU, but LDCU’s liability to the security guards remains because of Articles 106, 107 and 109 of the Labor Code. Eparwa is already precluded from asking LDCU for an adjustment in the contract price because of the expiration of the contract, but Eparwa’s liability to the security guards remains because of their employer-employee relationship. In lieu of an adjustment in the contract price, Eparwa may claim reimbursement from LDCU for any payment it may make to the security guards. However, LDCU cannot claim any reimbursement from Eparwa for any payment it may make to the security guards. B. Labor Contract Only Requisites and Prohibition Cases Mandaue etc. v Andales (548 SCRA 17) Based on Article 106 of the Labor Code and Sections 5 and 7 of the Implementing Rules, "labor-only" contracting exists when the following criteria are present: (1) where the contractor or subcontractor supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among other things; and the workers recruited and placed by the contractor or subcontractor are performing activities which are directly related to the principal business of such employer; or (2) where the contractor does not exercise the right to control the performance of the work of the contractual employee. Aboitiz Haulers Inc. v Dimapatol (502 SCRA 271) In determining whether or not a "labor-only" contracting exists, Art. 106 of the Labor Code and Section 5 of the Rules Implementing Articles 106 to 109 of the Labor Code, as amended, provides the following criteria: (1) where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among other things; (2) the workers recruited and placed by such
31
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
persons are performing activities which are directly related to the principal business of such employer; and (3) the contractor does not exercise the right to control the performance of the work of the contractual employee. In order that one is considered by law as a "labor-only" contractor, all three aforementioned criteria need not be present. If the contractor enters into an arrangement characterized by any one of the criteria provided, this would the law intends to prevent employers from circumventing labor laws intended to protect employees. Maraguinot v NLRC (284 SCRA 539) As labor-only contracting is prohibited, the law considers the person or entity engaged in the same a mere agent or intermediary of the direct employer.
NOTES
be a clear case of "labor-only contracting." The clear phrasing of Section 5 of the Rules Implementing Articles 106 to 109 of the Labor Code, as amended, support this interpretation. In prohibiting "labor-only" contracting and creating an employer-employee relationship between the principal and the supposed contractor’s employees, Aboitiz Haulers, Inc. v Dimapatoi (502 SCRA 271) Generally, the findings of fact made by the labor arbiter and the NLRC, as the specialized agencies presumed to have the expertise on matters within their respective fields, are accorded much respect and even finality, when supported by ample evidence. However, when the findings of the labor arbiter and the NLRC are contrary to the evidence on record, this Court shall lay aside such erroneous findings.
C. Effects of Finding Cases Mandaue etc. v Andales (548 SCRA 17) Factual findings of quasi-judicial bodies like the NLRC, when adopted and confirmed by the CA and if supported by substantial evidence, are accorded respect and even finality by this Court. The existence of an employeremployee relationship is a factual matter that will not be delved into by this Court, since only questions of law may be raised in petitions for review. The Court has recognized several exceptions to this rule, such as: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings, the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. None of these exceptions, however, has been convincingly shown by petitioners to apply in the present case. San Miguel Corp. v MAERC Integrated Services, Inc. (405 SCRA 579) Well-established is the principle that findings of fact of quasi-judicial bodies, like the NLRC, are accorded with respect, even finality, if supported by substantial evidence. Particularly when passed upon and upheld by the Court of Appeals, they are binding and conclusive upon the Supreme Court and will not normally be disturbed. NIKKI HIPOLITO
SECTION 7. EMPLOYEE CLASSIFICATION ART. 280, Labor Code: Regular and Casual Employment. –The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business of trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. SEC. 5, RULE 1, BOOK VI, OMNIBUS RULES: Regular and casual employment. — (a) The provisions of written agreements to the contrary notwithstanding and regardless of the oral agreements of the parties, an employment shall be considered to be regular employment for purposes of Book VI of the Labor Code where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. (b) Employment shall be deemed as casual in nature if it is not covered by
32
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
the preceding paragraph; Provided, That any employee who has rendered at least one year of service, whether such service is continuous or not, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season; and, (c) casual employees or those who are neither regular nor project employees.
(c) An employee who is allowed to work after a probationary period shall be considered a regular employee.
A regular employee is one who is engaged to perform activities which are necessary and desirable in the usual business or trade of the employer as against those which are undertaken for a specific project or are seasonal. There are two separate instances whereby it can be determined that an employment is regular: (1) if the particular activity performed by the employee is necessary or desirable in the usual business or trade of the employer; and, (2) if the employee has been performing the job for at least a year.
7.01 Coverage ART. 278, Labor Code: Coverage. – The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not. 7.02 Employee Classification • Regular and Casual Employment (Art. 280) • Probationary Employment (Art. 281) ART. 280, Labor Code: SEE ABOVE. ART. 281, Labor Code: Probationary Employment. –Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis as may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. Recognition and Types Cases Glory Philippines Inc. v. Vergara (531 SCRA 253) Article 280 of the Labor Code provides for three kinds of employees: (1) regular employees or those who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; (2) project employees or those whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season; and (3) casual employees or those who are neither regular nor project employees x x x. Pangilinan v. General Milling Corp. (434 SCRA 159) Article 280 of the Labor Code comprehends three kinds of employees: (a) regular employees or those whose work is necessary or desirable to the usual business of the employer; (b) project employees or those whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the NIKKI HIPOLITO
In the case of St. Theresa's School of Novaliches Foundation vs. NLRC, we held that Article 280 of the Labor Code does not proscribe or prohibit an employment contract with a fixed period. We furthered that it does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is thus nothing essentially contradictory between a definite period of employment and the nature of the employee's duties. Nature of Issue Cases Universal Robina Sugar Milling Corp. v. Caballeda (560 SCRA 115) It is a well-established rule that a petition for review on certiorari under Rule 45 of the Rules of Court should raise only questions of law, subject to certain exceptions. Whether or not Agripino was a seasonal/project employee or a regular employee is a question of fact. As such, this Court is not at liberty to review the said factual issue because our jurisdiction is generally limited to reviewing errors of law that the CA may have committed. Time and again, we have held that this Court is not a trier of facts, and it is not for us to re-examine and re-evaluate the probative value of evidence presented before the LA, the NLRC and the CA, which formed the basis of the assailed decision. Indeed, when their findings are in absolute agreement, the same are accorded not only respect but even finality as long as they are amply supported by substantial evidence. In this case, it is noteworthy that the LA, the NLRC and the CA are one in ruling that Agripino was not a casual employee much less a seasonal or project employee. In their findings, Agripino was considered a regular employee of URSUMCO. Consequently, such uniform finding of the LA, the NLRC, and the CA binds this Court. We find no cogent reason to depart from this ruling.
33
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Employer Determination—Effect Cases San Miguel Corporation v. NLRC (297 SCRA 277) “While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be supposed that every dispute will be automatically decided in favor of labor. Management has also rights, which, as such, are entitled to respect and enforcement in the interest of fair play. Although the Supreme Court has inclined more often than not toward the worker and has upheld his cause in his conflicts with the employer, such favoritism has not blinded the Court to the rule that justice is in every case for the deserving, to be dispensed in the light of the established facts and the applicable law and doctrine.” The nature of one’s employment does not depend on the will or word of the employer. Nor on the procedure of hiring and the manner of designating the employee, but on the nature of the activities to be performed by the employee, considering the employer’s nature of business and the duration and scope of the work to be done. Private respondent was hired for a specific project that was not within the regular business of the corporation. For petitioner is not engaged in the business of repairing furnaces. Although the activity was necessary to enable petitioner to continue manufacturing glass, the necessity therefor arose only when a particular furnace reached the end of its life or operating cycle. Or, as in the second undertaking, when a particular furnace required an emergency repair. In other words, the undertakings where private respondent was hired primarily as helper/bricklayer have specified goals and purposes, which are fulfilled once the designated work was completed. Moreover, such undertakings were also identifiably separate and distinct from the usual, ordinary or regular business operations of petitioner, which is glass manufacturing. These undertakings, the duration and scope of which had been determined and made known to private respondent at the time of his employment, clearly indicated the nature of his employment as a project employee. Thus, his services were terminated legally after the completion of the project. Public respondent NLRC’s decision (that Private respondent is a regular employee), if upheld, would amount to negating the distinctions made in Article 280 of the Labor Code. It would shunt aside the rule that since a project employee’s work depends on the availability of a project, necessarily, the duration of his employment is coterminous with the project to which he is assigned. It would become a burden for an employer to retain an employee and pay him his corresponding wages if there was no project for him to work on.
NIKKI HIPOLITO
NOTES
Tabas v. California Manufacturing Co., Inc. v. NLRC (169 SCRA 497) The existence of an employer-employees relation is a question of law and being such, it cannot be made the subject of agreement. Hence, the fact that the manpower supply agreement between Livi and California had specifically designated the former as the petitioners' employer and had absolved the latter from any liability as an employer, will not erase either party's obligations as an employer, if an employer-employee relation otherwise exists between the workers and either firm. At any rate, since the agreement was between Livi and California, they alone are bound by it, and the petitioners cannot be made to suffer from its adverse consequences. 7.03 Regular Employees ART. 280, Par. 1, Labor Code: Regular and Casual Employment. –The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business of trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. ART. 280, Par. 2, Labor Code: An employment shall be deemed casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. ART. 281, Last Sentence, Labor Code: An employee who is allowed to work after a probationary period shall be considered a regular employee. ART. 75 (D), Labor Code: A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. Types—Regular Employees Cases Philips Semiconductors etc. v. Fadriquela (427 SCRA 208) Article 280 of the Labor Code of the Philippines was emplaced in our statute
34
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
books to prevent the circumvention by unscrupulous employers of the employee’s right to be secure in his tenure by indiscriminately and completely ruling out all written and oral agreements inconsistent with the concept of regular employment defined therein. The language of the law manifests the intent to protect the tenurial interest of the worker who may be denied the rights and benefits due a regular employee because of lopsided agreements with the economically powerful employer who can maneuver to keep an employee on a casual or temporary status for as long as it is convenient to it. In tandem with Article 281 of the Labor Code, Article 280 was designed to put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to them temporary or probationary appointments, ad infinitum.
In this case, it is noteworthy that the LA, the NLRC and the CA are one in ruling that Agripino was not a casual employee much less a seasonal or project employee. In their findings, Agripino was considered a regular employee of URSUMCO.
The two kinds of regular employees under the law are (1) those engaged to perform activities which are necessary or desirable in the usual business or trade of the employer; and (2) those casual employees who have rendered at least one year of service, whether continuous or broken, with respect to the activities in which they are employed. The primary standard to determine a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. If the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity, if not indispensability of that activity to the business of the employer. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists. The law does not provide the qualification that the employee must first be issued a regular appointment or must be declared as such before he can acquire a regular employee status.
Even while the language of law might have been more definitive, the clarity of its spirit and intent, i.e., to ensure a “regular” worker’s security of tenure, however, can hardly be doubted. In determining whether an employment should be considered regular or non-regular, the applicable test is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The standard, supplied by the law itself, is whether the work undertaken is necessary or desirable in the usual business or trade of the employer, a fact that can be assessed by looking into the nature of the services rendered and its relation to the general scheme under which the business or trade is pursued in the usual course. It is distinguished from a specific undertaking that is divorced from the normal activities required in carrying on the particular business or trade. But, although the work to be performed is only for a specific project or seasonal, where a person thus engaged has been performing the job for at least one year, even if the performance is not continuous or is merely intermittent, the law deems the repeated and continuing need for its performance as being sufficient to indicate the necessity or desirability of that activity to the business or trade of the employer. The employment of such person is also then deemed to be regular with respect to such activity and while such activity exists.
Nature of Work Cases Universal Robina Sugar Milling Corp v. Caballeda (560 SCRA 115) Whether or not Agripino was a seasonal/project employee or a regular employee is a question of fact. As such, this Court is not at liberty to review the said factual issue because our jurisdiction is generally limited to reviewing errors of law that the CA may have committed. Time and again, we have held that this Court is not a trier of facts, and it is not for us to reexamine and re-evaluate the probative value of evidence presented before the LA, the NLRC and the CA, which formed the basis of the assailed decision. Indeed, when their findings are in absolute agreement, the same are accorded not only respect but even finality as long as they are amply supported by substantial evidence.
NIKKI HIPOLITO
Magsalin v. National Organization etc. (403 SCRA 199) Coca-Cola Bottlers Phils., Inc., is one of the leading and largest manufacturers of softdrinks in the country. Respondent workers have long been in the service of petitioner company. Respondent workers, when hired, would go with route salesmen on board delivery trucks and undertake the laborious task of loading and unloading softdrink products of petitioner company to its various delivery points.
Hacienda Fatima v. National Federation of Sugarcane Workers Food and General Trade (396 SCRA 518) For respondents to be excluded from those classified as regular employees, it is not enough that they perform work or services that are seasonal in nature. They must have also been employed only for the duration of one season. The evidence proves the existence of the first, but not of the second, condition. The fact that respondents — with the exception of Luisa Rombo, Ramona Rombo, Bobong Abriga and Boboy Silva — repeatedly worked as sugarcane workers for petitioners for several years is not denied by the latter. Evidently, petitioners employed respondents for more than one season. Therefore, the general rule of regular employment is applicable.
35
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Skippers United v. NLRC (494 SCRA 661) A seafarer is not a regular employee as defined in Article 280 of the Labor Code. Hence, he is not entitled to full backwages and separation pay in lieu of reinstatement as provided in Article 279 of the Labor Code. Seafarers are contractual employees whose rights and obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen, the Rules and Regulations Governing Overseas Employment, and, more importantly, by Republic Act (R.A.) No. 8042, or the Migrant Workers and Overseas Filipinos Act of 1995. While the POEA Standard Employment Contract for Filipino Seamen and the Rules and Regulations Governing Overseas Employment do not provide for the award of separation or termination pay, Section 10 of R.A. 8042 provides for the award of money claims in cases of illegal dismissals. Lopez v. MWSS (462 SCRA 428) Petitioners are indeed regular employees of the MWSS. The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Likewise, the repeated and continuing need for the performance of the job has been deemed sufficient evidence of the necessity, if not indispensability of the activity to the business. Some of the petitioners had rendered more than two decades of service to the MWSS. The continuous and repeated rehiring of these bill collectors indicate the necessity and desirability of their services, as well as the importance of the role of bill collectors in the MWSS. PNOC-Energy Development Corp. v. NLRC (521 SCRA 222) The applicable formula to ascertain whether an employment should be considered regular or non-regular is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer.9 As we held in Grandspan Development Corporation v. Bernardo: The principal test for determining whether particular employees are properly characterized as "project employees," as distinguished from "regular employees," is whether or not the project employees were assigned to carry out a "specific project or undertaking," the duration and scope of which were specified at the time the employees were engaged for that project. As defined, project employees are those workers hired (1) for a specific project or undertaking, and (2) the completion or termination of such project or undertaking has been determined at the time of the engagement of the employee. However, petitioner failed to substantiate its claim that respondents were hired merely as project employees. A perusal of the
NIKKI HIPOLITO
NOTES
records of the case reveals that the supposed specific project or undertaking of petitioner was not satisfactorily identified in the contracts of respondents. Another cogent factor, which militates against petitioner’s insistence that the services of respondents were terminated because the projects for which they were hired had been completed, is the fact that respondents’ contracts of employment were extended a number of times for different or new projects. It must be stressed that a contract that misuses a purported fixedterm employment to block the acquisition of tenure by employees deserves to be struck down for being contrary to law, morals, good customs, public order and public policy. Santiago v. CF Sharp Crew Management Inc. (527 SCRA 165) We likewise do not see respondent’s failure to deploy petitioner as an act designed to prevent the latter from attaining the status of a regular employee. Even if petitioner was able to depart the port of Manila, he still cannot be considered a regular employee, regardless of his previous contracts of employment with respondent. In Millares v. National Labor Relations Commission, the Court ruled that seafarers are considered contractual employees and cannot be considered as regular employees under the Labor Code. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. The exigencies of their work necessitates that they be employed on a contractual basis. Hiring Extend Period Cases Hanjin etc. v. Ibanez (555 SCRA 337) In a number of cases, the Court has held that the length of service or the re-hiring of construction workers on a project-to-project basis does NOT confer upon them regular employment status, since their re-hiring is only a natural consequence of the fact that experienced construction workers are preferred. Employees who are hired for carrying out a separate job, distinct from the other undertakings of the company, the scope and duration of which has been determined and made known to the employees at the time of the employment, are properly treated as project employees and their services may be lawfully terminated upon the completion of a project. Should the terms of their employment fail to comply with this standard, they cannot be considered project employees. San Miguel Corp. v. NLRC (510 SCRA 181) The act of hiring and re-hiring workers over a period of time without considering them as regular employees evidences bad faith on the part of the employer. Where, from the circumstances, it is apparent that periods have been imposed to preclude the acquisition of tenurial security by the employee, the policy, agreement or practice should be struck down as contrary to public policy, morals, good customs or public order. In point of
36
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
law, any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall be liable for the damage. Raycor Aircon Systems, Inc. v. San Pedro (526 SCRA 429) Consequently, the Court affirms the finding of the CA and the labor tribunals that respondent became a regular employee after 23 months of rehiring. Santiago v. CF Sharp Crew Management Inc. (527 SCRA 165) Petitioner additionally claims that he should be considered a regular employee, having worked for five (5) years on board the same vessel owned by the same principal and manned by the same local agent. He argues that respondent’s act of not deploying him was a scheme designed to prevent him from attaining the status of a regular employee. We do not see respondent’s failure to deploy petitioner as an act designed to prevent the latter from attaining the status of a regular employee. Even if petitioner was able to depart the port of Manila, he still cannot be considered a regular employee, regardless of his previous contracts of employment with respondent. In Millares v. National Labor Relations Commission, the Court ruled that seafarers are considered contractual employees and cannot be considered as regular employees under the Labor Code. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. The exigencies of their work necessitates that they be employed on a contractual basis. Contract to Contract Cases Beta Electric Corp. v. NLRC (182 SCRA 384) The petitioner cannot rightfully say that since the private respondent's employment hinged from contract to contract, it was ergo, "temporary", depending on the term of each agreement. Under the Labor Code, an employment may only be said to be "temporary" "where [it] has been fixed for a specific undertaking the completion of or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season." Quite to the contrary, the private respondent's work, that of "typist-clerk" is far from being "specific" or "seasonal", but rather, one, according to the Code, "where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business." And under the Code, where one performs such activities, he is a regular employee, "[t]he provisions of written agreement to the contrary notwithstanding . . .
NOTES
mandate of law. Hence, by operation of law, she has become a regular employee. Universal Robina Corp. v. Catapang (473 SCRA 189) It is obvious that the said five-month contract of employment was used by petitioners as a convenient subterfuge to prevent private respondents from becoming regular employees. Such contractual arrangement should be struck down or disregarded as contrary to public policy or morals. To uphold the same would, in effect, permit petitioners to avoid hiring permanent or regular employees by simply hiring them on a temporary or casual basis, thereby violating the employees’ security of tenure in their jobs. Length of Time Cases Maraguinot v. NLRC (284 SCRA 539) The length of time during which the employee was continuously re-hired is not controlling, but merely serves as a badge of regular employment. Abesco Construction and Development Corp. v. Ramirez (487 SCRA 9) Length of service is not a controlling factor in determining the nature of one’s employment. Seafarers Cases Dela Cruz v. Maersk (551 SCRA 285) Seafarers are not covered by the term regular employment, as defined under Article 280 of the Labor Code. This was reiterated in Coyoca v. National Labor Relations Commission.20 Instead, they are considered contractual employees whose rights and obligations are governed primarily by the POEA Standard Employment Contract for Filipino Seamen (POEA Standard Employment Contract), the Rules and Regulations Governing Overseas Employment, and, more importantly, by Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995.21 Even the POEA Standard Employment Contract itself mandates that in no case shall a contract of employment concerning seamen exceed 12 months. It is an accepted maritime industry practice that the employment of seafarers is for a fixed period only. The Court acknowledges this to be for the mutual interest of both the seafarer and the employer. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity during their employment has been shown to adversely affect them. Furthermore, the diversity in nationality, culture and language among the crew necessitates the limitation of the period of employment.
The fact that her employment has been a contract-to-contract basis can not alter the character of employment, because contracts can not override the NIKKI HIPOLITO
37
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
7.04 Project Employees ART. 280, Par. 1, Labor Code: Regular and Casual Employment. –The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business of trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. Defined Cases PNOC Energy Development Corp. v. NLRC (521 SCRA 227) The principal test for determining whether particular employees are properly characterized as "project employees," as distinguished from "regular employees," is whether or not the project employees were assigned to carry out a "specific project or undertaking," the duration and scope of which were specified at the time the employees were engaged for that project. As defined, project employees are those workers hired (1) for a specific project or undertaking, and (2) the completion or termination of such project or undertaking has been determined at the time of the engagement of the employee. However, petitioner failed to substantiate its claim that respondents were hired merely as project employees. A perusal of the records of the case reveals that the supposed specific project or undertaking of petitioner was not satisfactorily identified in the contracts of respondents. ALU-TUCP v. NLRC (234 SCRA 678) The present case therefore strictly falls under the definition of "project employees" on paragraph one of Article 280 of the Labor Code, as amended. Moreover, it has been held that the length of service of a project employee is not the controlling test of employment tenure but whether or not "the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee". (See Hilario Rada v. NLRC, G.R. No. 96078, January 9, 1992; and Sandoval Shipping, Inc. v. NLRC, 136 SCRA 674 (1985). Kiamco v. NLRC (309 SCRA 424) The principal test for determining whether particular employees are properly characterized as “project employees,” as distinguished from “regular employees,” is whether or not the “project employees” were assigned to carry out a “specific project or undertaking,” the duration (and scope) of which were specified at the time the employees were engaged for that project. As defined, project employees are those workers hired (1) for a NIKKI HIPOLITO
NOTES
specific project or undertaking, and (2) the completion or termination of such project or undertaking has been determined at the time of engagement of the employee. Under Policy Instruction No. 20 of the Secretary of Labor, project employees are those employed in connection with a particular project. Non-project or regular employees are those employed without reference to any particular project. Project Employees Cases Phil. Jai-Alai and Amusement Corp. v. Clave (126 SCRA 299) Private respondents were hired for a specific project to renovate the main building, where major repairs such as painting the main building, repair of the roof, cleaning of clogged water pipes and drains, and other necessary repairs were required. It was made known, and so understood at the start of the hiring, that their services would last until the completion of the renovation. They rendered service from February 2 to December 11, 1976, almost 11 months, but less than a year. The casual or limited character of private respondents' employment, therefore, is evident. They were engaged for a specific project or undertaking and fall within the exception provided for in Article 281 of the Labor Code, supra. Not being regular employees, it cannot be justifiably said that petitioner had dismissed them without just cause. They are not entitled to reinstatement with full backwages. Sandoval Shipyards Inc. v. NLRC (136 SCRA 674) Policy Instructions No. 20 of the Secretary of Labor, which was issued to stabilize employer-employee relations in the construction industry, provides: Project employees are those employed in connection with a particular construction project. Non-project (regular) employees are those employed by a construction company without reference to any particular project. Project employees are not entitled to termination pay if they are terminated as a result of the completion of the project or any phase thereof in which they are employed, regardless of the number of projects in which they have been employed by a particular construction company. Moreover, the company is not required to obtain clearance from the Secretary of Labor in connection with such termination. Imbuido v. NLRC (329 SCRA 357) The principal test for determining whether an employee is a project employee or a regular employee is whether the project employee was assigned to carry out a specific project or undertaking, the duration and
38
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
scope of which were specified at the time the employee was engaged for that project. A project employee is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. In the instant case, petitioner was engaged to perform activities which were usually necessary or desirable in the usual business or trade of the employer, as admittedly, petitioner worked as a data encoder for private respondent, a corporation engaged in the business of data encoding and keypunching, and her employment was fixed for a specific project or undertaking the completion or termination of which had been determined at the time of her engagement, as may be observed from the series of employment contracts between petitioner and private respondent, all of which contained a designation of the specific job contract and a specific period of employment. Chua v. CA (440 SCRA 121) In Violeta v. NLRC, this Court ruled that to be exempted from the presumption of regularity of employment, the agreement between a project employee and his employer must strictly conform to the requirements and conditions under Article 280 of the Labor Code. It is not enough that an employee is hired for a specific project or phase of work. There must also be a determination of, or a clear agreement on, the completion or termination of the project at the time the employee was engaged if the objectives of Article 280 are to be achieved. This second requirement was not met in this case. Rationale Cases De Ocampo v. NLRC (186 SCRA 360) Also noteworthy in this connection is Policy Instruction No. 20 of the Department of Labor, providing that "project employees are not entitled to separation pay if they are terminated as a result of the completion of the project or any phase thereof in which they are employed, regardless of the projects in which they had been employed by a particular construction company." Affirmatively put, and interpreting it in the most liberal way to favor the working class, the rule would entitle project employees to separation pay if the projects they are working on have not yet been completed when their services are terminated. And this should be true even if their contracts have expired, on the theory that such contracts would have been renewed anyway because their services were still needed. It is the policy of the Constitution to afford protection to labor in recognition of its role in the improvement of our welfare and the strengthening of our democracy. An exploited working class is a discontented working class. It is a treadmill to progress and a threat to freedom. Knowing this, we must exert all effort to dignify the lot of the employee, elevating him to the same NIKKI HIPOLITO
NOTES
plane as his employer, that they may better work together as equal partners in the quest for a better life. This is a symbiotic relationship we must maintain if such a quest is to succeed. Employer Obligation Cases Hanjin etc. v. Ibanez (555 SCRA 337) Petitioners call attention to the fact that they complied with two of the indicators of project employment, as prescribed under Section 2.2(e) and (f) of Department Order No. 19, Series of 1993, entitled Guidelines Governing the Employment of Workers in the Construction Industry, issued by the DOLE: 2.2 Indicators of project employment. - Either one or more of the following circumstances, among others, may be considered as indicators that an employee is a project employee. (a) The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable. (b) Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of hiring. (c) The work/service performed by the employee is in connection with the particular project/undertaking for which he is engaged. (d) The employee, while not employed and awaiting engagement, is free to offer his services to any other employer. (e) The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment (DOLE) Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees' terminations/dismissals/suspensions. (f) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies. (Emphasis provided.) Due to petitioners' failure to adduce any evidence showing that petitioners were project employees who had been informed of the duration and scope of their employment, they were unable to discharge the burden of proof required to establish that respondents' dismissal was legal and valid. Furthermore, it is a well-settled doctrine that if doubts exist between the evidence presented by the employer and that by the employee, the scales of justice must be tilted in favor of the latter. For these reasons, respondents are to be considered regular employees of HANJIN.
39
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Finally, in the instant case, records failed to show that HANJIN afforded respondents, as regular employees, due process prior to their dismissal, through the twin requirements of notice and hearing. Respondents were not served notices informing them of the particular acts for which their dismissal was sought. Nor were they required to give their side regarding the charges made against them. Certainly, the respondents' dismissal was not carried out in accordance with law and was, therefore, illegal. A.M. Oreta and Co. Inc. v. NLRC (176 SCRA 218) The law is clear to the effect that in all cases involving employees engaged on probationary period basis, the employer shall make known to the employee at the time he is hired, the standards by which he will qualify as a regular employee. Nowhere in the employment contract executed between petitioner company and respondent Grulla is there a stipulation that the latter shall undergo a probationary period for three months before he can qualify as a regular employee. There is also no evidence on record showing that the respondent Grulla has been appraised of his probationary status and the requirements which he should comply in order to be a regular employee. In the absence of this requisites, there is justification in concluding that respondent Grulla was a regular employee at the time he was dismissed by petitioner. As such, he is entitled to security of tenure during his period of employment and his services cannot be terminated except for just and authorized causes enumerated under the Labor Code and under the employment contract. xxx The twin requirements of notice and hearing constitute essential elements of due process in cases of employee dismissal: the requirement of notice is intended to inform the employee concerned of the employer's intent to dismiss and the reason for the proposed dismissal, while the requirement of hearing affords the employee an opportunity to answer his employer's charges against him and accordingly to defend himself therefrom before dismissal is effected. Neither of these requirements can be dispensed with without running afoul of the due process requirement of the Constitution (Century Textile Mills, Inc., et al. v. NLRC, et al., G.R. No. 77859, May 25,1988). Specific Period Cases Glory Philippines, Inc. v. Vergara (531 SCRA 253) In Grandspan Development Corporation v. Bernardo, the Court held that the principal test for determining whether particular employees are properly characterized as ‘project employees,’ as distinguished from ‘regular employees,’ is whether or not the ‘project employees’ were assigned to carry out a ‘specific project or undertaking,’ the duration and scope of which were specified at the time the employees were engaged for that project. As NIKKI HIPOLITO
NOTES
defined, project employees are those workers hired (1) for a specific project or undertaking, and (2) the completion or termination of such project or undertaking has been determined at the time of engagement of the employee. In the instant case, respondents’ employment contracts failed to state the specific project or undertaking for which they were allegedly engaged. While petitioner claims that respondents were hired for the transaction with Glory Japan, the same was not indicated in the contracts. As correctly observed by the Court of Appeals, nothing therein suggested or even hinted that their employment was dependent on the continuous patronage of Glory Japan. Further, the employment contracts did not indicate the duration and scope of the project or undertaking as required by law. It is not enough that an employee is hired for a specific project or phase of work to qualify as a project employee. There must also be a determination of, or a clear agreement on, the completion or termination of the project at the time the employee was engaged, which is absent in this case. Purefoods Corp. v. NLRC (283 SCRA 133) Contrary to petitioner's submission, the private respondents could not be regarded as having been hired for a specific project or undertaking. The term "specific project or undertaking" under Article 280 of the Labor Code contemplates an activity which is not commonly or habitually performed or such type of work which is not done on a daily basis but only for a specific duration of time or until completion; the services employed are then necessary and desirable in the employer's usual business only for the period of time it takes to complete the project. The fact that the petitioner repeatedly and continuously hired workers to do the same kind of work as that performed by those whose contracts had expired negates petitioner's contention that those workers were hired for a specific project or undertaking only. Labayog v. M.Y. San Biscuits, Inc. (494 SCRA 486) Where the duties of the employee consist of activities, which are necessary or desirable in the usual business of the employer, the parties are not prohibited from agreeing on the duration of employment. Article 280 does not proscribe or prohibit an employment contract with a fixed period provided it is not intended to circumvent the security of tenure. Two criteria validate a contract of employment with a fixed period: (1) 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 on the employee and without any circumstances vitiating consent or, (2) it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being
40
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
exercised by the former on the latter. Against these criteria, petitioners' contracts of employment with a fixed period were valid.
a labor case involving the same parties, found that private respondents were regular employees of the petitioner.
Each contract provided for an expiration date. Petitioners knew from the beginning that the employment offered to them was not permanent but only for a certain fixed period. They were free to accept or to refuse the offer. When they expressed their acceptance, they bound themselves to the contract.
C.E. Construction Corp. v. Cioco (437 SCRA 648) We again hold that the fact that the WORKERS have been employed with the COMPANY for several years on various projects, the longest being nine (9) years, did not automatically make them regular employees considering that the definition of regular employment in Article 280 of the Labor Code, makes specific exception with respect to project employment. The re-hiring of petitioners on a project-to-project basis did not confer upon them regular employment status. The practice was dictated by the practical consideration that experienced construction workers are more preferred. It did not change their status as project employees.
In this case, there was no allegation of vitiated consent. Respondents did not exercise moral dominance over petitioners. The contracts were mutually advantageous to the parties. While respondents were able to augment increased demand in production by hiring petitioners on an as-needed basis, petitioners found gainful employment if only for a few months. Simply put, petitioners were not regular employees. While their employment as mixers, packers and machine operators was necessary and desirable in the usual business of respondent company, they were employed temporarily only, during periods when there was heightened demand for production. Consequently, there could have been no illegal dismissal when their services were terminated on expiration of their contracts. There was even no need for notice of termination because they knew exactly when their contracts would end. Contracts of employment for a fixed period terminate on their own at the end of such period. Contracts of employment for a fixed period are not unlawful. What is objectionable is the practice of some scrupulous employers who try to circumvent the law protecting workers from the capricious termination of employment. Employers have the right and prerogative to choose their workers. "The law, while protecting the rights of the employees, authorizes neither the oppression nor destruction of the employer. When the law angles the scales of justice in favor of labor, the scale should never be so tilted if the result is an injustice to the employer." Continuous Rehiring Cases Chua v. CA (440 SCRA 121) Moreover, while it may be true that private respondents were initially hired for specific projects or undertakings, the repeated re-hiring and continuing need for their services over a long span of time—the shortest being two years and the longest being eight—have undeniably made them regular employees. This Court has held that an employment ceases to be coterminus with specific projects when the employee is continuously rehired due to the demands of the employer’s business and re-engaged for many more projects without interruption. The Court likewise takes note of the fact that, as cited by the SSC, even the National Labor Relations Commission in
NIKKI HIPOLITO
Workpool Employees Cases Maraguinot v. NLRC (284 SCRA 539) A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. This is beneficial to both the employer and employee for it prevents the unjust situation of "coddling labor at the expense of capital" and at the same time enables the workers to attain the status of regular employees. Aguilar Corp. v. NLRC (269 SCRA 596) Members of a work pool from which a construction company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees or employees for an indefinite period. If they are employed in a particular project, the completion of the project or any phase thereof will not mean severance of (the) employer-employee relationship.(Emphasis supplied) Abesco Construction and Development Corp. v. Ramirez (487 SCRA 9) Employees who are members of a “work pool” from which a company (like petitioner corporation) draws workers for deployment to its different projects do not become regular employees by reason of that fact alone. The Court has enunciated in some cases that members of a “work pool” can either be project employees or regular employees. The principal test for determining whether employees are “project employees” or “regular employees” is whether they are assigned to carry out a specific project or undertaking, the duration and scope of which are specified at the time they are engaged for that project. Such duration, as
41
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
well as the particular work/service to be performed, is defined in an employment agreement and is made clear to the employees at the time of hiring. Length of Service Cases Palomares v. NLRC (277 SCRA 439) Length of service is not the controlling determinant of the employment tenure of a project employee. As stated earlier, it is based on whether or not the employment has been fixed for a specific project or undertaking, the completion of which has been determined at the time of the engagement of the employee. Furthermore, the second paragraph of Article 280, providing that an employee who has rendered service for at least one (1) year, shall be considered a regular employee, pertains to casual employees and not to project employees such as petitioners. Filipinas Pre-Fabricated Building Systems, Inc. v. Puente (453 SCRA 820) A project employee is one whose “employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.” In D.M. Consunji, Inc. v. NLRC, this Court has ruled that “the length of service of a project employee is not the controlling test of employment tenure but whether or not ‘the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee.’” PNOC Energy Development Corp. v. NLRC (521 SCRA 227) In Filipinas Pre-Fabricated Building Systems (Filsystems), Inc. v. Puente, the Court ruled that "the length of service of a project employee is not the controlling test of employment tenure but whether or not the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee." Indeed, while length of time may not be the controlling test for project employment, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, respondents had been project employees several times over. Their employment ceased to be coterminous with specific projects when they were repeatedly re-hired by petitioner. Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and are considered regular employees.
NOTES
7.05 Casual Employees ART. 280, Par. 2, Labor Code: An employment shall be deemed casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Nature of Work Cases A.M. Oreta & Co., Inc. v. NLRC (176 SCRA 218) It may be well to cite at this point Policy Instructions No. 12 of the then Minister of Labor (Now Secretary of Labor and Employment) which provides: PD 850 has defined the concept of regular and casual employment. What determines regularity or casualness is not employment contract, written or otherwise, but the nature of the job. If the job is usually necessary or desireable to the main business of the employer, the employment is regular. . . One Year Service Cases Kimberly v. Drilon (185 SCRA 190) The law thus provides for two. kinds of regular employees, namely: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed. The individual petitioners herein who have been adjudged to be regular employees fall under the second category. These are the mechanics, electricians, machinists machine shop helpers, warehouse helpers, painters, carpenters, pipefitters and masons It is not disputed that these workers have been in the employ of KIMBERLY for more than one year at the time of the filing of the Petition for certification election by KILUSAN-OLALIA. Owing to their length of service with the company, these workers became regular employees, by operation of law, one year after they were employed by KIMBERLY through RANK. While the actual regularization of these employees entails the mechanical act of issuing regular appointment papers and compliance with such other operating procedures as may be adopted by the employer, it is more in keeping with the intent and spirit of the law to rule that the status of regular employment attaches to the casual worker on the day immediately after the end of his first year of service. To rule otherwise, and to instead make their regularization dependent on the happening of some contingency or the fulfillment of certain requirements, is to impose a burden on the employee which is not sanctioned by law. That the first stated position is the situation contemplated and sanctioned by law is further enhanced by the absence of a statutory limitation before
NIKKI HIPOLITO
42
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
regular status can be acquired by a casual employee. The law is explicit. As long as the employee has rendered at least one year of service, he becomes a regular employee with respect to the activity in which he is employed. The law does not provide the qualification that the employee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. Obviously, where the law does not distinguish, no distinction should be drawn. San Miguel Corporation v. Abella (461 SCRA 392) The law of course provides for two kinds of regular employees, namely: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed. As for those of private respondents who were engaged in janitorial and messengerial tasks, they fall under the second category and are thus entitled to differential pay and benefits extended to other SMC regular employees from the day immediately following their first year of service. Integrated Contractor and Plumbing Works Inc. v. CA (464 SCRA 544) While the actual regularization of these employees entails the mechanical act of issuing regular appointment papers and compliance with such other operating procedures as may be adopted by the employer, it is more in keeping with the intent and spirit of the law to rule that the status of regular employment attaches to the casual worker on the day immediately after the end of his first year of service. To rule otherwise, and to instead make their regularization dependent on the happening of some contingency or the fulfillment of certain requirements, is to impose a burden on the employee, which is not sanctioned by law. 7.06 Contract—Fixed Period Tests Validity Cases Brent School v. Zamora (181 SCRA 702) "Where from the circumstances it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy, morals, etc." Labayog v. M.Y. Brents, Inc. (494 SCRA 486) Two criteria validate a contract of employment with a fixed period: (1) 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 on the employee and without any circumstances vitiating consent or, NIKKI HIPOLITO
NOTES
(2) it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter. Against these criteria, petitioners' contracts of employment with a fixed period were valid. Cielo v. NLRC (193 SCRA 410) The Court looks with stern disapproval at the contract entered into by the private respondent with the petitioner (and who knows with how many other drivers). The agreement was a clear attempt to exploit the unwitting employee and deprive him of the protection of the Labor Code by making it appear that the stipulations of the parties were governed by the Civil Code as in ordinary private transactions. They were not, to be sure. The agreement was in reality a contract of employment into which were read the provisions of the Labor Code and the social justice policy mandated by the Constitution. It was a deceitful agreement cloaked in the habiliments of legality to conceal the selfish desire of the employer to reap undeserved profits at the expense of its employees. The fact that the drivers are on the whole practically unlettered only makes the imposition more censurable and the avarice more execrable. Caparoso v. CA (516 SCRA 30) The Court thus laid down the criteria under which fixed-term employment could not be said to be in circumvention of the law on security of tenure, thus: 1. 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 2. 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. Fabela v. San Miguel Corporation (515 SCRA 288) Project employment is distinct from casual employment referred to in the second paragraph of Article 280 for, as clarified in Mercado, Sr. v. NLRC, the proviso that "any employee who has rendered at least one year of service . . . shall be considered a regular employee" does not apply to project employees, but only to casual employees. Although Article 280 does not expressly recognize employment for a fixed period, which is distinct from employment which has been fixed for a specific project or undertaking, Brent School, Inc. v. Zamora has clarified that employment for a fixed period is not in itself illegal, viz: There can of course be no quarrel with the proposition that where from the circumstances it is apparent that periods have been imposed to preclude acquisition of tenurial security by the
43
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
employee, they should be struck down or disregarded as contrary to public policy, morals, etc. But where no such intent to circumvent the law is shown, or stated otherwise, where the reason for the law does not exist, e.g., where it is indeed the employee himself who insists upon a period or where the nature of the engagement is such that, without being seasonal or for a specific project, a definite date of termination is a sine qua non, would an agreement fixing a period essentially evil or illicit, therefore anathema? Would such an agreement come within the scope of Article 280 which admittedly was enacted "to prevent the circumvention of the right of the employee to be secured in x x (his) employment?" xxxx Accordingly, and since the entire purpose behind the development of legislation culminating in the present Article 280 of the Labor Code clearly appears to have been,. as already observed, to prevent circumvention of the employee’s right to be secure in his tenure, the clause in said article indiscriminately and completely ruling out all written or oral agreements conflicting with the concept of regular employment as defined therein should be construed to refer to the substantive evil that the Code itself has singled out: agreements entered into precisely to circumvent security of tenure. It should have no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily 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 where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. x x x (Emphasis and underscoring supplied)1awphi1.net PNOC Energy Development Corp. v. NLRC (521 SCRA 227) It must be stressed that a contract that misuses a purported fixed-term employment to block the acquisition of tenure by employees deserves to be struck down for being contrary to law, morals, good customs, public order and public policy. Seasonal Employees Cases Magcalas v. NLRC (269 SCRA 453) Regular employees cannot at the same time be project employees. Article 280 of the Labor Code states that regular employees are those whose work is necessary or desirable to the usual business of the employer. The two exceptions following the general description of regular employees refer to either project or seasonal employees. It has been ruled in the case of ALUTUCP vs. National Labor Relations Commission that: In the realm of business and industry, we note that "project" could NIKKI HIPOLITO
NOTES
refer to one or the other of at least two (2) distinguishable types of activities. Firstly, a project could refer to particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times. The typical example of this first type of project is a particular construction job or project of a construction company. A construction company ordinarily carries out two or more discrete (should be distinct) identifiable construction projects: e.g., a twenty-five-storey hotel in Makati; a residential condominium building in Baguio City; and a domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these separate projects, the scope and duration of which has been determined and made known to the employees at the time of employment, are properly treated as "project employees," and their services may be lawfully terminated at completion of the project." (Emphasis supplied). The employment of seasonal employees, on the other hand, legally ends upon completion of the project or the season, thus: Clearly, therefore, petitioners being project employees, or to use the correct term, seasonal employees, their employment legally ends upon completion of the project or the season. The termination of their employment cannot and should not constitute an illegal dismissal. Phil. Tobacco etc. v. NLRC (300 SCRA 37) Petitioner relies upon our ruling in Mercado v. NLRC that the “employment [of seasonal employees] legally ends upon completion of the x x x season,” a statement which was subsequently reiterated in Magcalas v. NLRC.[12] Thus, petitioner argues that it was not obliged to rehire the members of the Lubat group for the 1994 season, because their employment had been terminated at the end of the 1993 season. Since they were not employed for the 1994 season when the Balintawak plant was closed, it follows that petitioner has no obligation to award them separation pay due to the said closure. We are not persuaded. From the facts, we are convinced that petitioner illegally dismissed the members of the Lubat group when it refused to allow them to work during the 1994 season. San Miguel Corporation v. NLRC (297 SCRA 277) Thus, under Article 280 of the Labor Code, an employment is deemed regular when the activities performed by the employee are usually necessary or desirable in the usual business or trade of the employer even if the parties enter into an agreement stating otherwise. But considered not
44
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
regular under said Article are (1) the so-called “project employment” the termination of which is more or less determinable at the time of employment, such as those connected with a particular construction project; and (2) seasonal employment, which by its nature is only for one season of the year and the employment is limited for the duration of that season, such as the Christmas holiday season. Nevertheless, an exception to this exception is made: any employee who has rendered at least one (1) year of service, whether continuous or intermittent, with respect to the activity he performed and while such activity actually exists, must be deemed regular. Following Article 280, whether one is employed as a project employee or not would depend on whether he was hired to carry out a “specific project or undertaking”, the duration and scope of which were specified at the time his services were engaged for that particular project. Another factor that may be considered is the reasonable connection between the particular activity undertaken by the employee in relation to the usual trade or business of the employer; if without specifying the duration and scope, the work to be undertaken is usually necessary or desirable in the usual business or trade of the employer, then it is regular employment and not just “project” much less “casual” employment. Thus, the nature of one’s employment does not depend on the will or word of the employer. Nor on the procedure of hiring and the manner of designating the employee, but on the nature of the activities to be performed by the employee, considering the employer’s nature of business and the duration and scope of the work to be done. Manila Hotel v. CIR (9 SCRA 184) Moreover, it appears that the questioned employees were never separated from the service. Their status is that of regular seasonal employees who are called to work from time to time, mostly during summer season. The nature of their relationship with the hotel is such that during off season they are temporarily laid off but during summer season they are re-employed, or when their services may be needed. They are not strictly speaking separated from the service but are merely considered as on leave of absence without pay until they are re-employed. Their employment relationship is never severed but only suspended. As such, these employees can be considered as in the regular employment of the hotel. Industrial etc. v. CIR (165 SCRA 562): wrong citation Hacienda Bino v. Cuenca (456 SCRA 300) The primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. There is no doubt that the respondents were performing work necessary and desirable in the usual trade or business of an employer. Hence, they can properly be classified as regular employees.
NIKKI HIPOLITO
NOTES
For respondents to be excluded from those classified as regular employees, it is not enough that they perform work or services that are seasonal in nature. They must have been employed only for the duration of one season. While the records sufficiently show that the respondents’ work in the hacienda was seasonal in nature, there was, however, no proof that they were hired for the duration of one season only. In fact, the payrolls, submitted in evidence by the petitioners, show that they availed the services of the respondents since 1991. Absent any proof to the contrary, the general rule of regular employment should, therefore, stand. It bears stressing that the employer has the burden of proving the lawfulness of his employee’s dismissal. Poseidon Fishing v. NLRC (482 SCRA 717) Brent cited some familiar examples of employment contracts which may neither be for seasonal work nor for specific projects, but to which a fixed term is an essential and natural appurtenance, i.e., overseas employment contracts, appointments to the positions of dean, assistant dean, college secretary, principal, and other administrative offices in educational institutions, which are by practice or tradition rotated among the faculty members, and where fixed terms are a necessity without which no reasonable rotation would be possible. Thus, in Brent, the acid test in considering fixed-term contracts as valid is: if from the circumstances it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee, they should be disregarded for being contrary to public policy.
SECTION 8. PROBATIONARY EMPLOYEE ART. 281, Labor Code: Probationary Employment. –Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis as may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. ART. 61, 2nd Sentence, Labor Code: The period of apprenticeship shall not exceed six (6) months. SEC. 6, RULE 1, BOOKI VI, Omnibus Rules: Probationary employment. — (a) Where the work for which an employee has been engaged is learnable or apprenticeable in accordance with the standards prescribed by the Department of Labor, the probationary employment period of the employee shall be limited to the authorized learnership or apprenticeship period, whichever is applicable.
45
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
(b) Where the work is neither learnable nor apprenticeable, the probationary employment period shall not exceed six (6) months reckoned from the date the employee actually started working. (c) The services of an employee who has been engaged on probationary basis may be terminated only for a just cause or when authorized by existing laws, or when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer. (d) In all cases involving employees engaged on probationary basis, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. 8.01 Probationary Employees Definition Cases International Catholic Migration Commission v. NLRC (169 SCRA 508) A probationary employee, as understood under Article 282 (now Article 281) of the Labor Code, is one who is on trial by an employer during which the employer determines whether or not he is qualified for permanent employment. A probationary appointment is made to afford the employer an opportunity to observe the fitness of a probationer while at work, and to ascertain whether he will become a proper and efficient employee. The word "probationary", as used to describe the period of employment, implies the purpose of the term or period, but not its length. Being in the nature of a "trial period" the essence of a probationary period of employment fundamentally lies in the purpose or objective sought to be attained by both the employer and the employee during said period. The length of time is immaterial in determining the correlative rights of both in dealing with each other during said period. While the employer, as stated earlier, observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the probationer, on the other, seeks to prove to the employer, that he has the qualifications to meet the reasonable standards for permanent employment. It is well settled that the employer has the right or is at liberty to choose who will be hired and who will be denied employment. In that sense, it is within the exercise of the right to select his employees that the employer may set or fix a probationary period within which the latter may test and observe the conduct of the former before hiring him permanently. The equality of right that exists between the employer and the employee as to the nature of the probationary employment was aptly emphasized by this Court in Grand Motor Parts Corporation v. Minister of Labor, et al., 130 SCRA 436 (1984), citing the 1939 case of Pampanga Bus. Co., Inc. v. NIKKI HIPOLITO
NOTES
Pambusco Employees Union, Inc. 68 Phil. 541, thus: The right of a laborer to sell his labor to such persons as he may choose is, in its essence, the same as the right of an employer to purchase labor from any person whom it chooses. The employer and the employee have thus an equality of right guaranteed by the Constitution. If the employer can compel the employee to work against the latter's will, this is servitude. If the employee can compel the employer to give him work against the employer's will, this is oppression. As the law now stands, Article 281 of the Labor Code gives ample authority to the employer to terminate a probationary employee for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. There is nothing under Article 281 of the Labor Code that would preclude the employer from extending a regular or a permanent appointment to an employee once the employer finds that the employee is qualified for regular employment even before the expiration of the probationary period. Conversely, if the purpose sought by the employer is neither attained nor attainable within the said period, Article 281 of the Labor Code does not likewise preclude the employer from terminating the probationary employment on justifiable causes as in the instant case. Phil. Federation of Credit Cooperatives, Inc. v. NLRC (300 SCRA 72) It is an elementary rule in the law on labor relations that a probationary employee who is engaged to work beyond the probationary period of six months, as provided under Art. 281 of the Labor Code, as amended, or for any length of time set forth by the employer, shall be considered a regular employee. Art. 281 of the Labor Code, as amended, allows the employer to secure the services of an employee on a probationary basis which allows him to terminate the latter for just cause or upon failure to qualify in accordance with reasonable standards set forth by the employer at the time of his engagement. Probationary employees, notwithstanding their limited tenure, are also entitled to security of tenure. Thus, except for just cause as provided by law, or under the employment contract, a probationary employee cannot be terminated. Purpose Cases Espina v. CA (519 SCRA 327) As probationary employees, they enjoyed only temporary employment status. In general terms, this meant that they were terminable anytime, permanent employment not having been attained in the meantime. The
46
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
employer could well decide if he no longer needed the probationary’s service or his performance fell short of expectations, as a probationary employee is one who, for a given period of time, is under observation and evaluation to determine whether or not he is qualified for permanent employment. During the probationary period, the employer is given the opportunity to observe the skill, competence and attitude of the employee to determine if he has the qualification to meet the reasonable standards for permanent employment. The length of time is immaterial in determining the correlative rights of both the employer and the employee in dealing with each other during said period. Thus, as long as the termination was made before the expiration of the six-month probationary period, the employer was well within his rights to sever the employer-employee relationship. A contrary interpretation would defeat the clear meaning of the term "probationary." Philemploy Services and Resources, Inc. v. Rodriguez (486 SCRA 302) Indeed, an employer, in the exercise of its management prerogative, may hire an employee on a probationary basis in order to determine his fitness to perform his work. The employee’s services may be terminated for a just cause or for his failure to qualify as a regular employee based on reasonable standards made known to him at the time of his engagement. Grand Motors Corp. v. MOLE (130 SCRA 436) Indeed, the employer has the right or is at liberty to choose as to who will be hired and who will be declined. It is within the exercise of this right to select his employees that the employer may set or fix probationary period within which the latter may test and observed the conduct of the former before hiring him permanently. "The right of the laborer to sell his labor to such persons as he may choose is, in its essence, the same as the right of an employer to purchased labor from any person whom it chooses. The employer and the employee have thus an equality of rights guaranteed by the Constitution. 'If the employer can compel the employer the employee to work against the latter's will, this is servitude. If the employee can compel the employer to give him work against the employer's will, this is oppression''' International Catholic Migration Commission v. NLRC (169 SCRA 508) It is well settled that the employer has the right or is at liberty to choose who will be hired and who will be denied employment. In that sense, it is within the exercise of the right to select his employees that the employer may set or fix a probationary period within which the latter may test and observe the conduct of the former before hiring him permanently. The equality of right that exists between the employer and the employee as to the nature of the probationary employment was aptly emphasized by this Court in Grand Motor Parts Corporation v. Minister of Labor, et al., 130 SCRA 436 (1984), citing the 1939 case of Pampanga Bus. Co., Inc. v. NIKKI HIPOLITO
NOTES
Pambusco Employees Union, Inc. 68 Phil. 541, thus: The right of a laborer to sell his labor to such persons as he may choose is, in its essence, the same as the right of an employer to purchase labor from any person whom it chooses. The employer and the employee have thus an equality of right guaranteed by the Constitution. If the employer can compel the employee to work against the latter's will, this is servitude. If the employee can compel the employer to give him work against the employer's will, this is oppression. Escorpizo v. University of Baguio (306 SCRA 497) A probationary employee is one who, for a given period of time, is being observed and evaluated to determine whether or not he is qualified for permanent employment. A probationary appointment affords the employer an opportunity to observe the skill, competence and attitude of a probationer. The word "probationary", as used to describe the period of employment, implies the purpose of the term or period. While the employer observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the probationer at the same time, seeks to prove to the employer that be has the qualifications to meet the reasonable standards for permanent employment. Employer Right Set Period/Obligation Cases Grand Motors Corp. v. MOLE (130 SCRA 436) Indeed, the employer has the right or is at liberty to choose as to who will be hired and who will be declined. It is within the exercise of this right to select his employees that the employer may set or fix probationary period within which the latter may test and observed the conduct of the former before hiring him permanently. "The right of the laborer to sell his labor to such persons as he may choose is, in its essence, the same as the right of an employer to purchased labor from any person whom it chooses. The employer and the employee have thus an equality of rights guaranteed by the Constitution. 'If the employer can compel the employer the employee to work against the latter's will, this is servitude. If the employee can compel the employer to give him work against the employer's will, this is oppression''' Orient Express Placement Philippines, Inc. v. NLRC (273 SCRA 256) As aforesaid, no standard whatsoever by which such probationary period could be hurdled was specified and made known to him. Due process dictates that an employee be apprised beforehand of the condition of his employment and of the terms of advancement therein. Precisely, implicit in Art. 281 of the Code is the requirement that reasonable standards be previously made known by the employer to the probationary employee at the time of his engagement.
47
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
Mitsubishi Motors Corp. v. Chrysler Phil. Labor Union (433 SCRA 206) Indeed, an employer, in the exercise of its management prerogative, may hire an employee on a probationary basis in order to determine his fitness to perform work. Under Article 281 of the Labor Code, the employer must inform the employee of the standards for which his employment may be considered for regularization. Such probationary period, unless covered by an apprenticeship agreement, shall not exceed six (6) months from the date the employee started working. The employee’s services may be terminated for just cause or for his failure to qualify as a regular employee based on reasonable standards made known to him.
particular kind of work such as selling, or when the job requires certain qualifications, skills, experience or training.
Alcira v. NLRC (431 SCRA 508) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee.
Under the Labor Code, six (6) months is the general probationary period ' but the probationary period is actually the period needed to determine fitness for the job. This period, for lack of a better measurement is deemed to be the period needed to learn the job.
Conversely, an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. We agree with the labor arbiter when he ruled that: In the instant case, petitioner cannot successfully say that he was never informed by private respondent of the standards that he must satisfy in order to be converted into regular status. This rans (sic) counter to the agreement between the parties that after five months of service the petitioner’s performance would be evaluated. It is only but natural that the evaluation should be made vis-à-vis the performance standards for the job. Private respondent Trifona Mamaradlo speaks of such standard in her affidavit referring to the fact that petitioner did not perform well in his assigned work and his attitude was below par compared to the company’s standard required of him. Duration/Exception Cases Buiser v. Leogardo (131 SCRA 151) Generally, the probationary period of employment is limited to six (6) months. The exception to this general rule is When the parties to an employment contract may agree otherwise, such as when the same is established by company policy or when the same is required by the nature of work to be performed by the employee. In the latter case, there is recognition of the exercise of managerial prerogatives in requiring a longer period of probationary employment, such as in the present case where the probationary period was set for eighteen (18) months, i.e. from May, 1980 to October, 1981 inclusive, especially where the employee must learn a NIKKI HIPOLITO
Policy Instruction No. 11 of the Minister of Labor and Employment has clarified any and all doubts on the period of probationary employment. It states as follows: Probationary Employment has been the subject of misunderstanding in some quarter. Some people believe six (6) months is the probationary period in all cases. On the other hand employs who have already served the probationary period are sometimes required to serve again on probation.
The purpose of this policy is to protect the worker at the same time enable the employer to make a meaningful employee selection. This purpose should be kept in mind in enforcing this provision of the Code. This issuance shall take effect immediately. International Catholic Migration Commission v. NLRC (169 SCRA 508) Being in the nature of a "trial period" the essence of a probationary period of employment fundamentally lies in the purpose or objective sought to be attained by both the employer and the employee during said period. The length of time is immaterial in determining the correlative rights of both in dealing with each other during said period. While the employer, as stated earlier, observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the probationer, on the other, seeks to prove to the employer, that he has the qualifications to meet the reasonable standards for permanent employment. Holiday Inn Manila v. NLRC (226 SCRA 417) Probation is the period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. In the case at bar, the period was for three weeks, during Honasan's on-the-job training. When her services were continued after this training, the petitioners in effect recognized that she had passed probation and was qualified to be a regular employee. Honasan was certainly under observation during her three-week on-the-job training. If her services proved unsatisfactory then, she could have been dropped as early as during that period. But she was not. On the contrary, her services were continued, presumably because they were acceptable, although she was formally placed this time on probation.
48
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Even if it be supposed that the probation did not end with the three-week period of on-the-job training, there is still no reason why that period should not be included in the stipulated six-month period of probation. Honasan was accepted for on-the-job training on April 15, 1991. Assuming that her probation could be extended beyond that date, it nevertheless could continue only up to October 15, 1991, after the end of six months from the earlier date. Under this more lenient approach, she had become a regular employee of Holiday Inn and acquired full security of tenure as of October 15, 1991. The consequence is that she could no longer be summarily separated on the ground invoked by the petitioners. As a regular employee, she had acquired the protection of Article 279 of the Labor Code stating as follows: Art. 279. Security of Tenure — In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Bernardo v. NLRC (310 SCRA 186) As held by the Court, "Articles 280 and 281 of the Labor Code put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to them probationary appointments, ad infinitum." The contract signed by petitioners is akin to a probationary employment, during which the bank determined the employees' fitness for the job. When the bank renewed the contract after the lapse of the sixmonth probationary period, the employees thereby became regular employees. No employer is allowed to determine indefinitely the fitness of its employees. Mitsubishi Motors Corp. v. Chrysler Phil. Labor Union (433 SCRA 206) Applying Article 13 of the Civil Code, the probationary period of six (6) months consists of one hundred eighty (180) days. This is in conformity with paragraph one, Article 13 of the Civil Code, which provides that the months which are not designated by their names shall be understood as consisting of thirty (30) days each. The number of months in the probationary period, six (6), should then be multiplied by the number of days within a month, thirty (30); hence, the period of one hundred eighty (180) days. As clearly provided for in the last paragraph of Article 13, in computing a period, the first day shall be excluded and the last day included.
NIKKI HIPOLITO
NOTES
Criteria Regularization Cases Alcira v. NLRC (431 SCRA 508) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. Conversely, an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. We agree with the labor arbiter when he ruled that: In the instant case, petitioner cannot successfully say that he was never informed by private respondent of the standards that he must satisfy in order to be converted into regular status. This rans (sic) counter to the agreement between the parties that after five months of service the petitioner’s performance would be evaluated. It is only but natural that the evaluation should be made vis-à-vis the performance standards for the job. Private respondent Trifona Mamaradlo speaks of such standard in her affidavit referring to the fact that petitioner did not perform well in his assigned work and his attitude was below par compared to the company’s standard required of him. Extension of Contract Cases Mariwasa Manufacturing Inc. v. Leogardo (169 SCRA 465) By voluntarily agreeing to an extension of the probationary period, Dequila in effect waived any benefit attaching to the completion of said period if he still failed to make the grade during the period of extension. The Court finds nothing in the law which by any fair interpretation prohibits such a waiver. And no public policy protecting the employee and the security of his tenure is served by prescribing voluntary agreements which, by reasonably extending the period of probation, actually improve and further a probationary employee's prospects of demonstrating his fitness for regular employment. Absorbed Employees Cases Cebu Stevedoring Co. Inc. v. Regional Director (168 SCRA 315) It is to be noted that the complainants were employed by the Cebu Customs Arrastre Service long time ago whose functions were carried over when they were absorbed by the herein respondent. In other words, there is no need to employ them as probationary considering that they are already well trained in their respective functions. They were not absorbed for a definite period but instead for an indefinite period.
49
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
A probationary period of employment means that an employee is hired for training for a certain period in order to determine whether they qualify (sic) for the position or not. In this case, the complainants cannot be mistakenly considered as probationary viewed on the theory that they have been holding the same positions for a quite a long time at the Cebu Customs Arrastre Service before they were absorbed by the Cebu Stevedoring Co. Inc. with the same positions. Double Probation Cases A Prime Security Services Inc. v. NLRC (322 SCRA 283) There is no basis for subjecting private respondent to a new probationary or temporary employment on January 30, 1988, considering that he was already a regular employee when he was absorbed by A' Prime from Sugarland, its sister company. Termination and Salary Cases International Catholic Migration Commission v. NLRC (169 SCRA 508) As the law now stands, Article 281 of the Labor Code gives ample authority to the employer to terminate a probationary employee for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. There is nothing under Article 281 of the Labor Code that would preclude the employer from extending a regular or a permanent appointment to an employee once the employer finds that the employee is qualified for regular employment even before the expiration of the probationary period. Conversely, if the purpose sought by the employer is neither attained nor attainable within the said period, Article 281 of the Labor Code does not likewise preclude the employer from terminating the probationary employment on justifiable causes as in the instant case. Orient Express Placement Philippines, Inc. v. NLRC (273 SCRA 256) Under Art. 281 of the Labor Code, the services of an employee hired on a probationary basis may be terminated when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. However, the Court cannot sustain his dismissal on this ground because petitioner failed to specify the reasonable standards by which private respondent's alleged poor performance was evaluated, much less to prove that such standards were made known to him at the time of his recruitment in Manila.
NIKKI HIPOLITO
NOTES
Dela Cruz v. NLRC (418 SCRA 226) There is no dispute that petitioner, as a probationary employee, enjoyed only temporary employment status. In general terms, this meant that he was terminable anytime, permanent employment not having been attained in the meantime. The employer could well decide he no longer needed the probationary employee's services or his performance fell short of expectations, etc. As long as the termination was made before the expiration of the six-month probationary period, the employer was well within his rights to sever the employer-employee relationship. A contrary interpretation would defect the clear meaning of the term "probationary." In this case, respondent Shemberg had good reason to terminate petitioner's employment and that was his dishonesty. Rule Private School Teachers Cases Chiang Kai Shek College v. CA (437 SCRA 171) Under the Manual of Regulations for Private Schools, for a private school teacher to acquire a permanent status of employment and, therefore, be entitled to a security of tenure, the following requisites must concur: (a) the teacher is a full-time teacher; (b) the teacher must have rendered three consecutive years of service; and (c) such service must have been satisfactory. La Consolacion College v. NLRC (366 SCRA 226) In the case at bar, there is a written contract defining the period of employment of respondent de la Peña. Clearly, the employment was not permanent but for a specified duration of one school year. In resolving the issue of whether or not respondent de la Peña was permanent employee of petitioner, it is the Manual of Regulations for Private Schools, not the Labor Code, which is applicable. This was settled in University of Sto. Tomas v. NLRC, where we ruled that for a private school teacher to acquire permanent status in employment the following requisites must concur: (1) the teacher is a full-time teacher; (2) the teacher must have rendered three (3) consecutive years of service; and (3) such service must have been satisfactory.
50
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
PART II: LABOR STANDARDS LAW PURPOSE Case Mariveles Shipyard Corp. v. CA (415 SCRA 573) Labor standards are enacted by the legislature to alleviate the plight of workers whose wages barely meet the spiraling costs of their basic needs.
Section 3. Establishment of the Public Employment Service Office. To carry out the above-declared policy, there shall be established in all capital towns of provinces, key cities and other strategic areas a Public Employment Service Office, hereinafter referred to as "PESO," which shall be community-based and maintained largely by local government units (LGUs) and a number of nongovernmental organizations (NGOs) or community-based organizations (CBOs) and state universities and colleges (SUCs). The PESOs shall be linked to the regional offices of the Department of Labor and Employment (DOLE) for coordination and technical supervision, and to the DOLE central office, to constitute the national employment service network.
SECTION 1. EMPLOYMENT POLICY 1.01 Pre-Employment Policy—Statement of Objectives ART. 12, Labor Code: Statement of Objective.—It is the policy of the State: a. To promote and maintain a state of full employment through improved manpower training, allocation and utilization; b. To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment; c. To facilitate a free choice of available employment by persons seeking work in conformity with the national interest; d. To facilitate and regulate the movement of workers in conformity with the national interest; e. To regulate the employment of aliens, including the establishment of a registration and/or work permit system; f. To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives; g. To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad.
SECTION 2. RECRUITMENT AND PLACEMENT OF WORKERS • • • •
ART. 13-29, Labor Code Rules III-VIII, Omnibus Rules RA No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995), as amended by RA 9422 (2007) and RA 10022 (2010) RA No. 8759 (2000)—Public Employment Service Office Act of 1999 Sec. 2: Declaration of Policy. - It is a declared policy of the State to promote full employment and equality of employment opportunities for all, and for this purpose, to strengthen and expand the existing employment facilitation service machinery of the government particularly at the local levels.
NIKKI HIPOLITO
•
EO No. 857 (1984)—Governing the Remittance to the Philippines of Foreign Exchange Earnings of Filipino Workers Abroad and for Other Purposes
2.01 Recruitment and Placement of Workers—Definition SEC. 13 (A), Labor Code: “Worker” means any member of the labor force, whether employed or unemployed. SEC. 13 (B), Labor Code: “Recruitment and placement” refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement. Definition—Law Structure Cases People v. Panis (142 SCRA 664) As we see it, the proviso was intended neither to impose a condition on the basic rule nor to provide an exception thereto but merely to create a presumption. The presumption is that the individual or entity is engaged in recruitment and placement whenever he or it is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of the “canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring (of) workers.” "Any of the acts mentioned in the basic rule in Article 13 (b) will constitute recruitment and placement even if only one prospective worker is involved.
51
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
People v. Saulo (344 SCRA 605) Under Art. 13 (b) of the Labor Code, recruitment and placement refers to “any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.” After a careful and circumspect review of the records, the Court finds that the trial court was justified in holding that accused-appellant was engaged in unlawful recruitment and placement activities. The prosecution clearly established that accused-appellant promised the three complainants - Benny Maligaya, Angeles Javier and Leodigario Maullon – employment in Taiwan as factory workers and that he asked them for money in order to process their papers and procure their passports. Relying completely upon such representations, complainants entrusted their hard-earned money to accused-appellant in exchange for what they would later discover to be a vain hope of obtaining employment abroad. It is not disputed that accusedappellant is not authorized nor licensed by the Department of Labor and Employment to engage in recruitment and placement activities. The absence of the necessary license or authority renders all of accusedappellant’s recruitment activities criminal. 2.02 Employment Agency SEC. 13 (C), Labor Code: "Private fee-charging employment agency" means any person or entity engaged in recruitment and placement of workers for a fee, which is charged, directly or indirectly, from the workers or employers or both. SEC. 13 (D), Labor Code: "License" means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency. SEC. 13 (E), Labor Code: "Private recruitment entity" means any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers. SEC. 13 (F), Labor Code: "Authority" means a document issued by the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity. 2.03 Allowed Entities A. General Rule SEC. 16, Labor Code: Private recruitment. - Except as provided in Chapter II of this Title, no person or entity other than the public
NIKKI HIPOLITO
NOTES
employment offices, shall engage in the recruitment and placement of workers. SEC. 18, Labor Code: Ban on direct-hiring. - No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Directhiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision. SEC. 25, Labor Code: Private sector participation in the recruitment and placement of workers. - Pursuant to national development objectives and in order to harness and maximize the use of private sector resources and initiative in the development and implementation of a comprehensive employment program, the private employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary of Labor. SEC. 12 (F), Labor Code: To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives. B. Allowed Entities SEC. 13 (C), Labor Code: "Private fee-charging employment agency" means any person or entity engaged in recruitment and placement of workers for a fee, which is charged, directly or indirectly, from the workers or employers or both. SEC. 13 (E), Labor Code: "Private recruitment entity" means any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers. •
Private SEC. 13 (C), Labor Code: "Private fee-charging employment agency" means any person or entity engaged in recruitment and placement of workers for a fee, which is charged, directly or indirectly, from the workers or employers or both. SEC. 13 (E), Labor Code: "Private recruitment entity" means any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers.
52
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
•
Public SEC. 12 (F), Labor Code: To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives.
SEC. 14 (G), Labor Code: no such thing 2.04 Deployment Migrant Workers 2.05 Prohibited Entity SEC. 16, Labor Code: Private recruitment. - Except as provided in Chapter II of this Title, no person or entity other than the public employment offices, shall engage in the recruitment and placement of workers. SEC. 18, Labor Code: Ban on direct-hiring. - No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision. SEC. 26, Labor Code: Travel agencies prohibited to recruit. - Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not. 2.06 Techniques of Regulation ART. 25, Labor Code. Private sector participation in the recruitment and placement of workers. - Pursuant to national development objectives and in order to harness and maximize the use of private sector resources and initiative in the development and implementation of a comprehensive employment program, the private employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary of Labor. ART. 26, Labor Code. Travel agencies prohibited to recruit. - Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not. ART. 27, Labor Code. Citizenship requirement. - Only Filipino citizens or corporations, partnerships or entities at least seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas.
NIKKI HIPOLITO
NOTES
ART. 28, Labor Code. Capitalization. - All applicants for authority to hire or renewal of license to recruit are required to have such substantial capitalization as determined by the Secretary of Labor. ART. 29, Labor Code. Non-transferability of license or authority. - No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor. ART. 30, Labor Code. Registration fees. - The Secretary of Labor shall promulgate a schedule of fees for the registration of all applicants for license or authority. ART. 31, Labor Code. Bonds. - All applicants for license or authority shall post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as may be appropriate. ART. 32, Labor Code. Fees to be paid by workers. - Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until he has obtained employment through its efforts or has actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees. ART. 33, Labor Code. Reports on employment status. - Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation from jobs, wages, other terms and conditions and other employment data. ART. 34, Labor Code. Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or holder of authority: (a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code.
53
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; (e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; (h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor. (i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. ART. 35, Labor Code. Suspension and/or cancellation of license or authority. - The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions. ART. 36, Labor Code. Regulatory power. - The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. ART. 37, Labor Code. Visitorial Power. - The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title.
NIKKI HIPOLITO
NOTES
ART. 38, Labor Code. Illegal recruitment. - (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. (c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. ART. 39, Labor Code. Penalties. - (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; (b) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court; (c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; (d) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings;
54
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
(e) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives. License Cases People v. Buli-e (404 SCRA 105) License territorial: could only undertake recruitment activities in the region where the license was granted
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code.
and
placement
2.07 Illegal Recruitment SEC. 38, Labor Code: Illegal recruitment. - (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. (c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. SEC. 34, Labor Code: Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or holder of authority: (a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by NIKKI HIPOLITO
the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance;
(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; (e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; (h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor. (i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. SEC. 6, RA No. 8042 (1995): Definition. — For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring,
55
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
NOTES
approval of the Department of Labor and Employment; (j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reason as determined by the Department of Labor and Employment ; and
(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code;
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.
(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.
(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;
The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable.
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;
SEC. 2, RA No. 10022: "Overseas Filipino worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for miliatry or noncommercial purposes or on an installation located offshore or on the high seas; to be used interchangeably with migrant worker."
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the NIKKI HIPOLITO
SEC. 5, RA No. 10022: “Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons
56
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: "(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance; "(b) To furnish or publish any false notice or information or document in relation to recruitment or employment; "(c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA; "(d) To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; "(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization; "(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; "(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; "(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; "(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency; NIKKI HIPOLITO
NOTES
“(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations; "(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; "(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and "(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. "Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. "In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: "(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan; "(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons; "(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own; "(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; "(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities
57
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; "(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and "(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage. "The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable. "In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused. "In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the antiillegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator. "The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations.” Elements of Crime Cases People v. Sagayaga (423 SCRA 468) Under Section 6 (m) of Rep. Act No. 8042, illegal recruitment may be committed by any person, whether a non-licensee, non-holder of authority, licensee or holder of authority, thus: (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault... NIKKI HIPOLITO
NOTES
Under the last paragraph of the said section, those criminally liable are the principals, accomplices and accessories. In case of a juridical person, the officers having control, management or direction of the business shall be criminally liable. xxx Section 6 of Rep. Act No. 8042 provides that illegal recruitment shall be considered an offense involving economic sabotage if committed in large scale, viz, committed against three (3) or more persons individually or as a group, the imposable penalty for which is life imprisonment and a fine of not less than P500,000.00 nor more than P1,000,000.00. In this case, there are three private complainants, namely, Elmer Janer, Eric Farol and Elmer Ramos. The trial court, thus, correctly convicted the appellant of large scale illegal recruitment and sentenced her to suffer life imprisonment. People v. Baytic (398 SCRA 18) Illegal recruitment is committed when two (2) elements concur. First, the offender has no valid license or authority required by law to enable one to engage lawfully in recruitment and placement of workers. Second, he or she undertakes either any activity within the meaning of "recruitment and placement" defined under Art. 13, par. (b), or any prohibited practices enumerated under Art. 34 of the Labor Code.1awphi1.nét In case of illegal recruitment in large scale, a third element is added: that the accused commits the acts against three or more persons, individually or as a group. C.F. Sharp Crew Management Inc. v. Espanol (533 SCRA 424) Article 13(b) of the Labor Code defines recruitment and placement as: any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad whether for profit or not: Provided, That any person or entity which in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. On the basis of this definition – and contrary to what C.F. Sharp wants to portray - the conduct of preparatory interviews is a recruitment activity. The fact that C.F. Sharp did not receive any payment during the interviews is of no moment. From the language of Article 13(b), the act of recruitment may be "for profit or not." Notably, it is the lack of the necessary license or authority, not the fact of payment that renders the recruitment activity of LCL unlawful.
58
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Large Scale Cases People v. Buli-e (404 SCRA 105): case cannot be located People v. Dujua (422 SCRA 169) The essential elements of the crime of illegal recruitment in large scale are: (1) the accused engages in acts of recruitment and placement of workers defined under Article 13(b) or in any prohibited activities under Art. 34 of the Labor Code; (2) the accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3) the accused commits the unlawful acts against three or more persons, individually or as a group. People v. Reyes (242 SCRA 264) In any event the testimonies of the two complainants could not be the basis for a finding of illegal recruitment on a large scale and for imposing the penalty of life imprisonment on her. The Labor Code prescribes the penalty of life imprisonment for illegal recruitment when committed on a "large scale." Art. 38 (b) of the Code provides: (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. And Art. 39 (a) provides: Art. 39. Penalties. — (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein. Referrals Cases People v. Meris (329 SCRA 33) Although accused-appellant was not an employee of the alleged illegal recruiter Julie Micua, the evidence show that she was the one who approached complainants and prodded them to seek employment abroad. It was through her that they met Julia Micua. This is clearly an act of referral. Worse, accused-appellant declared that she was capable of placing them in jobs overseas. Suffice it to say that complainants' recruitment would not have been consummated were it not for the direct participation of accusedappellant in the recruitment process. People v. Fortuna (395 SCRA 354) The crime of illegal recruitment is committed when, among other things, a NIKKI HIPOLITO
NOTES
person who, without being duly authorized according to law, represents or gives the distinct impression that he or she has the power or the ability to provide work abroad convincing those to whom the representation is made or to whom the impression is given to thereupon part with their money in order to be assured of that employment. Employees Cases People v. Corpuz (412 SCRA 479) An employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. Settled is the rule that the existence of the corporate entity does not shield from prosecution the corporate agent who knowingly and intentionally causes the corporation to commit a crime. The corporation obviously acts, and can act, only by and through its human agents, and it is their conduct which the law must deter. The employee or agent of a corporation engaged in unlawful business naturally aids and abets in the carrying on of such business and will be prosecuted as principal if, with knowledge of the business, its purpose and effect, he consciously contributes his efforts to its conduct and promotion, however slight his contribution may be. The law of agency, as applied in civil cases, has no application in criminal cases, and no man can escape punishment when he participates in the commission of a crime upon the ground that he simply acted as an agent of any party. The culpability of the employee therefore hinges on his knowledge of the offense and his active participation in its commission. Where it is shown that the employee was merely acting under the direction of his superiors and was unaware that his acts constituted a crime, he may not be held criminally liable for an act done for and in behalf of his employer. People v. Sagayaga (423 SCRA 468) At any rate, the accused has expressly admitted in the course of her testimony that she was at the time the Treasurer of their recruitment agency. As such she was in charge of the management and control of the financial affairs and resources of the corporation. She was in charge of collecting all its receivables, safely keeping them, and disbursing them. She testified that it was part of her duties to receive and collect the monies paid by applicants (TSN, Mar. 13, 2000, p. 5). Her disbursing authority has been clearly demonstrated by her co-signing the checks Exhibits D-2 and G. The appellant is guilty of illegal recruitment as a principal by direct participation, having dealt directly with the private complainants. In fact, she received their placement fees and even signed, in her capacity as the Assistant General Manager of the APSC, the promissory note on May 6, 1998 in favor of private complainant Elmer Janer, obliging the APSC to pay to him the amount of P75,000.00.
59
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
People v. Gutierrez (422 SCRA 32) Section 11, Rule II, Book II of the Rules and Regulations Governing Overseas Employment requires the prior approval of the POEA of the appointment of representatives or agents: Section 11. Appointment of Representatives. Every appointment of representatives or agents of licensed agency shall be subject to prior approval or authority of the Administration. The approval may be issued upon submission of or compliance with the following requirements: a. Proposed appointment or Special Power of Attorney; b. Clearances of the proposed representative or agent from NBI; c. A sworn or verified statement by the designating or appointing person or company assuming full responsibility for all the acts of the agent or representative done in connection with the recruitment and placement of workers. Approval by the Administration of the appointment or designation does not authorize the agent or representative to establish a branch or extension office of the licensed agency represented. Any revocation or amendment in the appointment should be communicated to the administration. Otherwise, the designation or appointment shall be deemed as not revoked or amended. Section 1, Rule X of the same Book, in turn, provides that "recruitment and placement activities of agents or representatives appointed by a licensee, whose appointments were not authorized by the Administration shall likewise constitute illegal recruitment." 2.08 Enforcement and Sanctions ART. 36, Labor Code. Regulatory power. - The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. ART. 37, Labor Code. Visitorial Power. - The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title. ART. 38, Labor Code. Illegal recruitment. - (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be NIKKI HIPOLITO
NOTES
deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. (c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. ART. 39, Labor Code. Penalties. - (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; (b) Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court; (c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; (d) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings; (e) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the
60
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives. SEC. 7, RA No. 10022: "SEC. 10. Money Claims. - 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 damage. Consistent with this mandate, the NLRC shall endeavor to update and keep abreast with the developments in the global services industry. "The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to de filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. "Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. "Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within thirty (30) days from approval of the settlement by the appropriate authority. "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 if 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. "In case of a final and executory judgement against a foreign employer/principal, it shall be automatically disqualified, without further proceedings, from participating in the Philippine Overseas Employment Program and from recruiting and hiring Filipino workers until and unless it fully satisfies the judgement award. NIKKI HIPOLITO
NOTES
"Noncompliance with the mandatory periods for resolutions of case provided under this section shall subject the responsible officials to any or all of the following penalties: "(a) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; "(b) Suspension for not more than ninety (90) days; or "(c) Dismissal from the service with disqualification to hold any appointive public office for five (5) years. "Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incured under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph." Cases Executive Secretary v. CA, 429 SCRA 81 To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be unconstitutional, the party must establish that it will suffer irreparable harm in the absence of injunctive relief and must demonstrate that it is likely to succeed on the merits, or that there are sufficiently serious questions going to the merits and the balance of hardships tips decidedly in its favor. The higher standard reflects judicial deference toward "legislation or regulations developed through presumptively reasoned democratic processes." Moreover, an injunction will alter, rather than maintain, the status quo, or will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits. Considering that injunction is an exercise of equitable relief and authority, in assessing whether to issue a preliminary injunction, the courts must sensitively assess all the equities of the situation, including the public interest. In litigations between governmental and private parties, courts go much further both to give and withhold relief in furtherance of public interest than they are accustomed to go when only private interests are involved. Before the plaintiff may be entitled to injunction against future enforcement, he is burdened to show some substantial hardship. 2.09 Liability of Agency Cases G&M (Phil.) Inc. v. Batomalaque (461 SCRA 111) Petitioner, as the recruiter and agent of Abdul Aziz, is thus solidarily liable with the latter for the unpaid wages of respondent. This Court, through Justice Irene Cortes, in Royal Crown Internationale v. NLRC explains the basis thereof:
61
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
…Petitioner conveniently overlooks the fact that it had voluntarily assumed solidary liability under the various contractual undertakings it submitted to the Bureau of Employment Services. In applying for its license to operate a private employment agency for overseas recruitment and placement, petitioner was required to submit, among others, a document or verified undertaking whereby it assumed all responsibilities for the proper use of its license and the implementation of the contracts of employment with the workers it recruited and deployed for overseas employment [Section 2(e), Rule V, Book I, Rules to Implement the Labor Code (1976)]. It was also required to file with the Bureau a formal appointment or agency contract executed by the foreign-based employer in its favor to recruit and hire personnel for the former, which contained a provision empowering it to sue and be sued jointly and solidarily with the foreign principal for any of the violations of the recruitment agreement and the contracts of employment [Section 10 (a) (2), Rule V, Book I of the Rules to Implement the Labor Code (1976)]. Petitioner was required as well to post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as appropriate [Section 1 of Pres. Dec. 1412 (1978) amending Article 31 of the Labor Code]. These contractual undertakings constitute the legal basis for holding petitioner, and other private employment or recruitment agencies, liable jointly and severally with its principal, the foreign-based employer, for all claims filed by recruited workers which may arise in connection with the implementation of the service agreements or employment contracts 2.10 Migrant Workers Act (RA No. 8042) SEC. 2: DECLARATION OF POLICIES-(a) In the pursuit of an independent foreign policy and while considering national sovereignty, territorial integrity, national interest and the right to self-determination paramount in its relations with other states, the State shall, at all times, uphold the dignity of its citizens whether in country or overseas, in general, and Filipino migrant workers, in particular. (b) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. Towards this end, the State shall provide adequate and timely social, economic and legal services to Filipino migrant workers. (c) While recognizing the significant contribution of Filipino migrant workers to the national economy through their foreign exchange remittances, the State does not promote overseas employment as a means to sustain economic growth and achieve national development. The existence of the overseas employment program rests solely on the assurance that the NIKKI HIPOLITO
NOTES
dignity and fundamental human rights and freedoms of the Filipino citizens shall not, at any time, be compromised or violated. The State, therefore, shall continuously create local employment opportunities and promote the equitable distribution of wealth and the benefits of development. (d) The State affirms the fundamental equality before the law of women and men and the significant role of women in nation-building. Recognizing the contribution of overseas migrant women workers and their particular vulnerabilities, the State shall apply gender sensitive criteria in the formulation and implementation of policies and programs affecting migrant workers and the composition of bodies tasked for the welfare of migrant workers. (e) Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any persons by reason of poverty. In this regard, it is imperative that an effective mechanism be instituted to ensure that the rights and interest of distressed overseas Filipinos, in general, and Filipino migrant workers, in particular, documented or undocumented, are adequately protected and safeguarded. (f) The right of Filipino migrant workers and all overseas Filipinos to participate in the democratic decision-making processes of the State and to be represented in institutions relevant to overseas employment is recognized and guaranteed. (g) The State recognizes that the ultimate protection to all migrant workers is the possession of skills. Pursuant to this and as soon as practicable, the government shall deploy and/or allow the deployment only to skilled Filipino workers. (h) Non-governmental organizations, duly recognized as legitimate, are partners of the State in the protection of Filipino migrant workers and in the promotion of their welfare, the State shall cooperate with them in a spirit of trust and mutual respect. (I) Government fees and other administrative costs of recruitment, introduction, placement and assistance to migrant workers shall be rendered free without prejudice to the provision of Section 36 hereof. Nonetheless, the deployment of Filipino overseas workers, whether landbased or sea-based by local service contractors and manning agencies employing them shall be encouraged. Appropriate incentives may be extended to them. SEC. 4: Deployment of Migrant Workers - The State shall deploy overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as
62
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
guarantee on the part of the receiving country for the protection and the rights of overseas Filipino workers: (a) It has existing labor and social laws protecting the rights of migrant workers; (b) It is a signatory to multilateral conventions, declaration or resolutions relating to the protection of migrant workers; (c) It has concluded a bilateral agreement or arrangement with the government protecting the rights of overseas Filipino workers; and (d) It is taking positive, concrete measures to protect the rights of migrant workers. SEC. 6: DEFINITIONS. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines. Provided, that such non-license or nonholder, who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any persons, whether a non-licensee, non-holder, licensee or holder of authority. (a) To charge or accept directly or indirectly any amount greater than the specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; (e) To influence or attempt to influence any persons or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment of placement of workers in jobs harmful to NIKKI HIPOLITO
NOTES
public health or morality or to dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittances of foreign exchange earnings, separations from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; (j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly on indirectly in the management of a travel agency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reasons as determined by the Department of Labor and Employment; and (m) Failure to reimburse expenses incurred by the workers in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered as offense involving economic sabotage. Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. SEC. 10: MONEY CLAIMS. - Botwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the priginal and exclusive jurisdiction to hear and decide,
63
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
within ninety (90) calendar days after 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. The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provisions shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within four (4) months from the approval of the settlement by the appropriate authority. In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of 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. Non-compliance with the mandatory periods for resolutions of cases provided under this section shall subject the responsible officials to any or all of the following penalties: (a) The salary of any such official who fails to render his decision or resolutions within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; (b) Suspension for not more than ninety (90) days; or (c) Dismissal from the service with disqualifications to hold any appointive public office for five (5) years. Provided, however, that the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under NIKKI HIPOLITO
NOTES
other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph. Cases Flourish Maritime Shipping v. Almanzor (548 SCRA 713) The Labor Arbiter concluded that petitioners, who had the burden of proof, failed to adduce any convincing evidence to establish and substantiate its claim that respondent voluntarily resigned from employment. Likewise, the NLRC held that petitioners failed to show that respondent was not physically fit to perform work due to his old age. Moreover, the labor tribunal said that petitioners failed to prove that the employment contract indeed provided a grievance machinery. Clearly, both labor tribunals correctly concluded, as affirmed by the Court of Appeals, that respondent was not redeployed for work, in violation of their employment contract. Perforce, the termination of respondent’s services is without just or valid cause. On the amount of the award due respondent, Section 10 of R.A. 8042 provides: SECTION 10. Money Claims. x x x xxxx In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee 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. x x x x. The correct interpretation of this provision was settled in Marsaman Manning Agency Inc. v. National Labor Relations Commission, where this Court held that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract, or three (3) months’ salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. Phil. Employ Services, etc. v. Paranio (427 SCRA 732) Under Section 10, paragraph 5 of Rep. Act No. 8042, respondents Sarmiento, Bautista, Curameng and Guillermo are entitled to the full reimbursement of their placement fees. Since each of the respondents remitted only P19,000 to the petitioner, each of them is entitled to P19,000, plus 12% interest per annum. According to Section 10, paragraph 2 of Rep. Act No. 8042, the agency which deployed the employees whose employment contract were adjudged illegally terminated, shall be jointly and solidarily liable with the principal for the money claims awarded to the aforesaid employees. Consequently, the
64
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
petitioner, as the agency of the respondents, is solidarily liable with its principal Kuan Yuan for the payment of the salaries due to the respondents corresponding to the unexpired portion of their contract, as well as the reimbursement of their placement fees. Under Section 15 of the same Act, the repatriation of the worker and the transport of his personal belongings shall be the primary responsibility of the agency, which recruited or deployed the overseas contract worker. All the costs attendant thereto shall be borne by the agency concerned and/or its principal. Consequently, the petitioner is obliged to refund P4,300 to each of the respondents, representing their airfare. Placewell International Services Corp. v. Camote (492 SCRA 761) R.A. No. 8042 explicitly prohibits the substitution or alteration to the prejudice of the worker, of employment contracts already approved and verified by the Department of Labor and Employment (DOLE) from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE. Thus, we held in Chavez v. Bonto-Perez that the subsequently executed side agreement of an overseas contract worker with her foreign employer which reduced her salary below the amount approved by the POEA is void because it is against our existing laws, morals and public policy. The said side agreement cannot supersede her standard employment contract approved by the POEA. Applying the same rule in the case at bar, the unauthorized alteration in the employment contract of respondent, particularly the diminution in his salary from US$370.00 to SR 800.00 per month, is void for violating the POEAapproved contract which set the minimum standards, terms, and conditions of his employment. Moreover, we find that there was no proper dismissal of respondent by SAAD; the "termination" of respondent was clearly a ploy to pressure him to agree to a lower wage rate for continued employment. Thus, the original POEA-approved employment contract of respondent subsists despite the socalled new agreement with SAAD. Consequently, the solidary liability of petitioner with SAAD for respondent’s money claims continues in accordance with Section 10 of R.A. 8042. 2.11 Pre-Termination Cases Flourish Maritime Shipping v. Almanzor (548 SCRA 713) The employment contract involved in the instant case covers a two-year period but the overseas contract worker actually worked for only 26 days prior to his illegal dismissal. Thus, the three months’ salary rule applies. There is a similar factual milieu between the case at bench and Olarte v. Nayona.[ The only difference lies in the length of the subject employment contract: Olarte involved a one-year contract; while the employment in this NIKKI HIPOLITO
NOTES
case covers a two-year period. However, they both fall under the three months’ salary rule since the term of the contract is at least one year or more. In Olarte, as well as in JSS Indochina Corporation v. Ferrer, we ordered the employer of an illegally dismissed overseas contract worker to pay an amount equivalent to three (3) months’ salary.
SECTION 3. ALIEN EMPLOYMENT REQUISITES: 1. Employment Permit (Art. 40) a. Non-Resident Aliens—need employment permit from DOLE b. Resident Aliens—no need for employment permit 2. Secretary of Labor and Employment determines: a. Non-availability of a person in the Philippines who is able, competent and willing at the time of the application to perform the services for which the alien is desired (Art. 40) b. Other factors like economic and national interest considerations 3. Only Secretary of Labor and Employment is authorized to issue employment permit. 4. No transfer of employment from one employer to another because the employee was granted only for that particular job (Art. 41). 5. There must be an understudy program to assure technology transfer (IRR). 3.01 Coverage Non-Resident Alien Cases Almodiel v NLRC (223 SCRA 341) Likewise destitute of merit is petitioner's imputation of unlawful discrimination when Raytheon caused corollary functions appertaining to cost accounting to be absorbed by Danny Ang Tan Chai, a resident alien without a working permit. Article 40 of the Labor Code which requires employment permit refers to non-resident aliens. The employment permit is required for entry into the country for employment purposes and is issued after determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. Since Ang Tan Chai is a resident alien, he does not fall within the ambit of the provision. 3.02 Technique Regulation—Employment Permit ART. 40: Employment Permit of Non-Resident Aliens.—Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor.
65
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
The employment permit may be issued to anon-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. ART. 41: Prohibition Against Transfer of Employment.—(a) After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor. (b) Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code. In addition, the alien worker shall be subject to deportation after service of his sentence. ART. 42: Submission of List.—Any employer employing non-resident foreign nationals on the effective date of this Code shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit. ART. XII, SEC. 12, Constitution: The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. RA 7916, The Special Economic Zone Act of 1995 SEC. 2(B): Declaration of Policy. – It is the declared policy of the government to translate into practical realities the following State policies and mandates in the 1987 Constitution, namely: (b) "The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods and adopt measures that help make them competitive." (Sec. 12, Art XII) SEC. 3(C): Purposes, Intents and Objectives. – It is the purpose, intent and objective of this Act: (c) To promote the flow of investors, both foreign and local, into special economic zones which would generate employment opportunities and NIKKI HIPOLITO
NOTES
establish backward and forward linkages among industries in and around the economic zones; SEC. 4: Definition of Terms. – For purposes of this Act, the following definitions shall apply to the following terms: (a) "Special Economic Zones (SEZ)" – hereinafter referred to as the ECOZONES, are selected areas with highly developed or which have the potential to be developed into agro-industrial, Industrial tourist/recreational, commercial, banking, investment and financial centers. An ECOZONE may contain any or all of the following: Industrial Estates (IEs), Export Processing Zones (EPZs), Free Trade Zones, and Tourist/Recreational Centers. (b) "Industrial Estate (IE)" – refers to a tract of land subdivided and developed according to a comprehensive plan under a unified continuous management and with provisions for basic infrastructure and utilities, with or without pre-built standard factory buildings and community facilities for the use of the community of industries. (c) "Export Processing Zone (EPZ)" – a specialized industrial estate located physically and/or administratively outside customs territory, predominantly oriented to export production. Enterprises located in export processing zones are allowed to import capital equipment and raw materials free from duties, taxes and other import restrictions. (d)"Free Trade Zone" - an isolated policed area adjacent to a port of entry (as a seaport) and/or airport where imported goods may be unloaded for immediate transshipment or stored, repacked, sorted, mixed, or otherwise manipulated without being subject to import duties. However, movement of these imported goods from the free-trade area to a non-free-trade area in the country shall be subject to import duties. Enterprises within the zone are granted preferential tax treatment and immigration laws are more lenient. SEC. 10: Immigration. – Any investor within the ECOZONE whose initial investment shall not be less than One Hundred Fifty Thousand Dollars ($150,000.00), his/her spouse and dependent children under twenty-one (21) years of age shall be granted permanent resident status within the ECOZONE. They shall have freedom of ingress and egress to and from the ECOZONE without any need of special authorization from the Bureau of Immigration. The PEZA shall issue working visas renewable every two (2) years to foreign executives and other aliens, processing highly-technical skills which no Filipino within the ECOZONE possesses, as certified by the Department of Labor and Employment. The names of aliens granted permanent resident
66
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
status and working visas by the PEZA shall be reported to the Bureau of Immigration within thirty (30) days after issuance thereof. SEC. 40: Percentage of Foreign Nationals. - Employment of foreign nationals hired by ECOZONE enterprises in a supervisory, technical or advisory capacity shall not exceed five percent (5%) of Its workforce without the express authorization of the Secretary of Labor and Employment. RA7918, Amending Omnibus Investments Code of 1987 SEC. 39(G): Incentives to Registered Enterprises. — All registered enterprises shall be granted the following incentives to the extent engaged in a preferred area of investment: "(g) Employment of Foreign Nationals. — Subject to the provisions of Section 29 of Commonwealth Act No. 613, as amended, a registered enterprise may employ foreign nationals in supervisory, technical or advisory positions for a period not exceeding five (5) years from its registration, extendible for limited periods at the discretion of the Board: Provided, however, That when the majority of the capital stock of a registered enterprise is owned by foreign investors, the positions of president, treasurer, and general manager or their equivalents may be retained by foreign nationals beyond the period set forth within. "Foreign nationals under employment contract within the purview of this incentive, their spouses and unmarried children under twenty-one (21) years of age, who are not excluded by Section 29 of Commonwealth Act No. 613, as amended, shall be permitted to enter and reside in the Philippines during the period of employment of such foreign nationals. "A registered enterprise shall train Filipinos as understudies of foreign nationals in administrative, supervisory and technical skills and shall submit annual reports on such training to the Board. Authority Employment Permit—Issuance Cases General Milling Corp. v Torres (196 SCRA 215) Petitioners will not find solace in the equal protection clause of the Constitution. As pointed out by the Solicitor-General, no comparison can be made between petitioner Cone and Mr. Norman Black as the latter is "a long time resident of the country," and thus, not subject to the provisions of Article 40 of the Labor Code which apply only to "non-resident aliens." In any case, the term "non-resident alien" and its obverse "resident alien," here must be given their technical connotation under our law on immigration. Neither can petitioners validly claim that implementation of respondent Secretary's decision would amount to an impairment of the obligations of NIKKI HIPOLITO
NOTES
contracts. The provisions of the Labor Code and its Implementing Rules and Regulations requiring alien employment permits were in existence long before petitioners entered into their contract of employment. It is firmly settled that provisions of applicable laws, especially provisions relating to matters affected with public policy, are deemed written into contracts. Private parties cannot constitutionally contract away the otherwise applicable provisions of law. Petitioners' contention that respondent Secretary of Labor should have deferred to the findings of Commission on Immigration and Deportation as to the necessity of employing petitioner Cone, is, again, bereft of legal basis. The Labor Code itself specifically empowers respondent Secretary to make a determination as to the availability of the services of a "person in the Philippines who is competent, able and willing at the time of application to perform the services for which an alien is desired." In short, the Department of Labor is the agency vested with jurisdiction to determine the question of availability of local workers. The constitutional validity of legal provisions granting such jurisdiction and authority and requiring proof of non-availability of local nationals able to carry out the duties of the position involved, cannot be seriously questioned.
SECTION 4. EMPLOYMENT OF APPRENTICES, LEARNERS, AND HANDICAPPED WORKERS 4.01 Policy Objectives SEC. 2, RA 7796: Declaration of Policy. — It is hereby declared the policy of the State to provide relevant, accessible, high quality and efficient technical education and skills development in support of the development of high quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities. The State shall encourage active participation of various concerned sectors, particularly private enterprises, being direct participants in and immediate beneficiaries of a trained and skilled work force, in providing technical education and skills development opportunities. SEC. 3, RA 7796: Statement of Goals and Objectives. — It is the goal and objective of this Act to: a) Promote and strengthen the quality of technical education and skills development programs to attain international competitiveness. b)Focus technical education and skills development on meeting the changing demands for quality middle-level manpower; c) Encourage critical and creative thinking by disseminating the scientific and technical knowledge base of middle-level manpower development
67
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
programs; d) Recognize and encourage the complementary roles of public and private institutions in technical education and skills development and training systems; and e) Inculcate desirable values through the development of moral character with emphasis on work ethic, self-discipline, self- reliance and nationalism. Cases Century Canning v CA (530 SCRA 501) Article 57 of the Labor Code provides that the State aims to establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies and to establish apprenticeship standards for the protection of apprentices. To translate such objectives into existence, prior approval of the DOLE to any apprenticeship program has to be secured as a condition sine qua non before any such apprenticeship agreement can be fully enforced. The role of the DOLE in apprenticeship programs and agreements cannot be debased. A. APPRENTICE 4.02 Apprentice A. Defined SEC. 4(J), RA 7796: Definition of Terms. — As used in this Act: j) “Apprenticeship” training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer on an approved apprenticeable occupation; • •
• •
Within employment Within compulsory related theoretical instructions/ apprenticeship program (approved by DOLE before apprenticeship agreement entered into) Involves a contract between an apprentice and an employer Highly skilled trade or skill
B. Apprenticeable Occupation SEC. 4(M), RA 7796: “Apprenticeable Occupation” is an occupation officially endorsed by a tripartite body and approved for apprenticeship by the Authority; C. Qualification •
When a child works parents/legal guardian
NIKKI HIPOLITO
directly
under
sole
responsibility
of
•
o Only members of employer’s family employed o Provided: No danger and provide with education Public and entertainment/info (cinema, theater, radio, TV) o DOLE permit needed o Concluded by parents o Express agreement by child o Prevent child exploitation and discrimintation o Continuing program for training and skills acquisition
SEC. 12, RA 7610, as amended by RA 7658: Employment of Children. – Children below fifteen (15) years of age may be employed except: (1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed: Provided, however, That his employment neither endangers his life, safety and health and morals, nor impairs his normal development: Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or (2) When a child's employment or participation in public & entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract concluded by the child's parent or guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, That the following requirements in all instances are strictly complied with: (a) The employer shall ensure the protection, health, safety and morals of the child; (b) the employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and; (c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skill acquisition of the child. In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirement.
68
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
The Department of Labor Employment shall promulgate rules and regulations necessary for the effective implementation of this Section.
Labor and Employment. The Department shall develop standard model programs of apprenticeship. (As amended by Sec. 1, EO 111, Dec. 12, 1986)
D. Allowed Employment Requirement Program Approval Cases Nitto Enterprises v NLRC (248 SCRA 654) Prior approval by the Department of Labor and Employment of the proposed apprenticeship program is, therefore, a condition sine quo non before an apprenticeship agreement can be validly entered into.
SEC. 72: Apprentices Without Compensation.—The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination.
The act of filing the proposed apprenticeship program with the Department of Labor and Employment is a preliminary step towards its final approval and does not instantaneously give rise to an employer-apprentice relationship. Article 57 of the Labor Code provides that the State aims to "establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies" and "to establish apprenticeship standards for the protection of apprentices." To translate such objectives into existence, prior approval of the DOLE to any apprenticeship program has to be secured as a condition sine qua non before any such apprenticeship agreement can be fully enforced. The role of the DOLE in apprenticeship programs and agreements cannot be debased. Hence, since the apprenticeship agreement between petitioner and private respondent has no force and effect in the absence of a valid apprenticeship program duly approved by the DOLE, private respondent's assertion that he was hired not as an apprentice but as a delivery boy ("kargador" or "pahinante") deserves credence. He should rightly be considered as a regular employee of petitioner as defined by Article 280 of the Labor Code E. Terms and Conditions of Employment • • •
Maximum term of 6 months Minimum 75% below minimum wage Apprenticeship program approved by DOLE
SEC. 61: Contents of Apprenticeship Agreements.—Apprenticeship agreements, including the wage rates of apprentices, shall conform to the rules issued by the Secretary of Labor and Employment. The period of apprenticeship shall not exceed six (6) months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage, may be entered into only in accordance with apprenticeship programs duly approved by the Secretary of NIKKI HIPOLITO
F.
Costs •
Employer may deduct ½ costs of training expenses from taxable income, provided: o Apprenticeship program is recognized by DOLE o Deduction shall not exceed 10% of direct labor wage o Pay apprentice minimum wage (not 75% of the minimum wage)
SEC. 71: Deductibility of Training Costs.—An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program: Provided, That such program is duly recognized by DOLE: Provided, further, That such deduction shall not exceed ten (10%) percent of direct labor wage: and Provided, finally, That the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage. G. Enforcement SEC. 65: Investigation of Violation of Apprenticeship Agreement.— Upon complaint of any interested person or upon its own initiative, the appropriate agency of the DOLE or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment. SEC. 66: Appeal to the Secretary of Labor and Employment.—The decision of the authorized agency of the DOLE may be appealed by any aggrieved person to the Secretary of Labor and Employment within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final and executory. SEC. 67: Exhaustion of Administrative Remedies.—No person shall institute any action for the enforcement of any apprenticeship
69
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies. B. LEARNERS •
• •
•
•
Trainees in o Semi-skilled o Other industrial occupation (non-apprenticeable) Learnership program approved by authority Can only be hired when o No experience worker available o Employment necessary to prevent curtailment of employment opportunities o Employment does not create unfair competition in terms of labor costs/impair/lower working standards The contract should include o Names and addresses o Duration (not to exceed 3 months) o Wages: minimum 75% of applicable minimum wage o Commitment of employer to hire learners as regulars Would be deemed as regulars if worked first 2 months, terminated before end of stipulated period, no fault of learner
4.03 Learners A. Defined SEC. 4, RA 7796: “Learners” refer to persons hired as trainees in semi-skilled and other industrial occupations which are nonapprenticeable. Learnership programs must be approved by the Authority. B. Allowed Employment SEC. 74(B): When Learners May Be Hired.—Learners may be employed when no experienced workers are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards. C. Terms and Conditions of Employment SEC. 75: Learnership Agreement.—Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include: (a) The names and addresses of the learners; (b) The duration of the learnership period, which shall not exceed three (3) months;
NIKKI HIPOLITO
NOTES
(c) The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and (d) A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. SEC. 76: Learners in Piecework.—Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. DISTINCTION BETWEEN APPRENTICESHIP AND LEARNERSHIP SIMILARITY: Both involve training periods for jobs requiring skills that can be acquired through actual work experience. Since both learners and apprentices are not as fully productive as regular workers, learners and apprentices may be paid wages 25% lower than the applicable legal minimum wage. DIFFERENCE: A learner trains in a semi-skilled job or in industrial occupations that require training for less than 3 months. Training period is shorter than apprenticeship because the job is more easily learned. The job is “nonapprenticeable” because its practical skills can be learned in 3 months. A learner is NOT an apprentice, but an apprentice is, conceptually, also a learner. An apprentice trains in a skilled or highly-skilled job or in a job found only in a highly technical industry. Since it is a skilled job, the training period exceeds 3 months. Since the job is more easily learnable in learnership, the employer is committed to hire the learner-trainee as an employee after the training period. No such commitment exists in apprenticeship. C. HANDICAPPED WORKERS • •
If qualified, handicapped workers may be considered apprentices or for apprenticeship Should be given the same terms and conditions of a qualified able-bodied person, should be paid full compensation, like a regular employee
70
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. 4.04 Handicapped Worker A. Defined SEC. 4(A), RA 7277: Disabled persons are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being; SEC. 4(B). RA 7277: (b) Impairment is any loss, diminution or aberration of psychological, physiological, or anatomical structure or function; SEC. 4(C), RA 7277: (c) Disability shall mean 1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment; SEC. 4(D), RA 7277: (d) Handicap refers to a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the function or activity, that is considered normal given the age and sex of the individual; Section 1. Title. — This Act shall be known and cited as the "Magna Carta for Disabled Persons." Sec. 2. Declaration of Policy — The grant of the rights and privileges for disabled persons shall be guided by the following principles: (a) Disabled persons are part of Philippine society, thus the State shall give full support to the improvement of the total well-being of disabled persons and their integration into the mainstream of society. Toward this end, the State shall adopt policies ensuring the rehabilitation, self-development and self-reliance of disabled persons. It shall develop their skills and potentials to enable them to compete favorably for available opportunities. (b) Disabled persons have the same rights as other people to take their proper place in society. They should be able to live freely and as independently as possible. This must be the concern of everyone — the family, community and all government and nongovernment organizations. Disabled persons' rights must never be perceived as NIKKI HIPOLITO
NOTES
welfare services by the Government. (c) The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capacity to attain a more meaningful, productive and satisfying life. To reach out to a greater number of disabled persons, the rehabilitation services and benefits shall be expanded beyond the traditional urban-based centers to community based programs, that will ensure full participation of different sectors as supported by national and local government agencies. (d) The State also recognizes the role of the private sector in promoting the welfare of disabled persons and shall encourage partnership in programs that address their needs and concerns. (e) To facilitate integration of disabled persons into the mainstream of society, the State shall advocate for and encourage respect for disabled persons. The State shall exert all efforts to remove all social, cultural, economic, environmental and attitudinal barriers that are prejudicial to disabled persons. Sec. 3. Coverage. — This Act shall cover all disabled persons and, to the extent herein provided, departments, offices and agencies of the National Government or nongovernment organizations involved in the attainment of the objectives of this Act. Sec. 4. Definition of Terms. — For purposes of this Act, these terms are defined as follows: (a) Disabled persons are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being; (b) Impairment is any loss, diminution or aberration psychological, physiological, or anatomical structure or function;
of
(c) Disability shall mean 1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment; (d) Handicap refers to a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents
71
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
the function or activity, that is considered normal given the age and sex of the individual; (e) Rehabilitation is an integrated approach to physical, social, cultural, spiritual, educational and vocational measures that create conditions for the individual to attain the highest possible level of functional ability; (f) Social Barriers refer to the characteristics of institutions, whether legal, economic, cultural, recreational or other, any human group, community, or society which limit the fullest possible participation of disabled persons in the life of the group. Social barriers include negative attitudes which tend to single out and exclude disabled persons and which distort roles and inter-personal relationships; (g) Auxiliary Aids and Services include: (1) qualified interpreters or other effective methods of delivering materials to individuals with hearing impairments; (2) qualified readers, taped tests, or other effective methods of delivering materials to individuals with visual impairments; (3) acquisition or modification of equipment or devices; and (4) other similar services and actions or all types of aids and services that facilitate the learning process of people with mental disability. (h) Reasonable Accommodation include 1) improvement of existing facilities used by employees in order to render these readily accessible to and usable by disabled persons; and 2) modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or company policies, rules and regulations, the provision of auxiliary aids and services, and other similar accommodations for disabled persons; (i) Sheltered Employment refers to the provision of productive work for disabled persons through workshops providing special facilities, income-producing projects or homework schemes with a view to giving them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry;
NOTES
(j) Auxiliary Social Services are the supportive activities in the delivery of social services to the marginalized sectors of society; (k) Marginalized Disabled Persons refer to disabled persons who lack access to rehabilitative services and opportunities to be able to participate fully in socioeconomic activities and who have no means of livelihood and whose incomes fall below the poverty threshold; (l) Qualified Individual with a Disability shall mean an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires. However, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job; (m) Readily Achievable means a goal can be easily attained and carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include — (1) the nature and cost of the action; (2) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; (3) the overall financial resources of the covered entity with respect to the number of its employees; the number, type and location of its facilities; and (4) the type of operation or operations of the covered entity, including the composition, structure and functions of the work force of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. (n) Public Transportation means transportation by air, land and sea that provides the public with general or special service on a regular and continuing basis; (o) Covered Entity means an employer, employment agency, labor organization or joint-labor management committee; and (p) Commerce shall be taken to mean as travel, trade, traffic,
NIKKI HIPOLITO
72
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
commerce, transportation, or communication among the provinces or between any foreign country or any territory or possession and any province. TITLE II RIGHTS AND PRIVILEGES OF DISABLED PERSONS CHAPTER I EMPLOYMENT Sec. 5. Equal Opportunity for Employment. — No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person. Five percent (5%) of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. Sec. 6. Sheltered Employment — If suitable employment for disabled persons cannot be found through open employment as provided in the immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. Sec. 7. Apprenticeship. — Subject to the provisions of the Labor Code as amended, disabled persons shall be eligible as apprentices or learners: Provided, That their handicap is not as much as to effectively impede the performance of job operations in the particular occupation for which they are hired; Provided, further, That after the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment. Sec. 8. Incentives for Employers. — (a) To encourage the active participation of the private sector in promoting the welfare of disabled persons and to ensure gainful employment for qualified disabled persons, adequate incentives shall be provided to private entities which employ disabled persons. (b) Private entities that employ disabled persons who meet the required skills or qualifications, either as regular employee, NIKKI HIPOLITO
NOTES
apprentice or learner, shall be entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons: Provided, however, That such entities present proof as certified by the Department of Labor and Employment that disabled persons are under their employ: Provided, further, That the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his disability, skills and qualifications. (c) Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. This Section, however, does not apply to improvements or modifications of facilities required under Batas Pambansa Bilang 344. B. Allowed Employment SEC. 5, RA 7277: Equal Opportunity for Employment. — No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person. Five percent (5%) of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. Regular Worker Cases Bernardo v NLRC (310 SCRA 186) The Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified able-bodied employees. Once they have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatments is rooted not merely on charity or accommodation, but on justice for all. At the outset, let it be known that this Court appreciates the nobility of private respondent's effort to provide employment to physically impaired individuals and to make them more productive members of society. However, we cannot allow it to elude the legal consequences of that effort, simply because it now deems their employment irrelevant. The facts, viewed in light of the Labor Code and the Magna Carta for Disabled Persons,
73
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
indubitably show that the petitioners, except sixteen of them, should be deemed regular employees. As such, they have acquired legal rights that this Court is duty-bound to protect and uphold, not as a matter of compassion but as a consequence of law and justice. The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of one month, after which the employer shall determine whether or not they should be allowed to finish the 6-month term of the contract. Furthermore, the employer may terminate the contract at any time for a just and reasonable cause. Unless renewed in writing by the employer, the contract shall automatically expire at the end of the term.
SEC. 5. CONDITIONS OF EMPLOYMENT—HOURS OF WORK “Working Conditions and Rest Periods”—terms and conditions affecting the employment of an employee including policies, programs and regulations governing his employment status, work and work relationships. 5.01 Hours Regulation Rationale and Enforcement Cases Manila Terminal Co. Inc. v. CIR, 91 Phil. 625 (1952) It is high time that all employers were warned that the public is interested in the strict enforcement of the Eight-Hour Labor Law. This was designed not only to safeguard the health and welfare of the laborer or employee, but in a way to minimize unemployment by forcing employers, in cases where more than 8-hour operation is necessary, to utilize different shifts of laborers or employees working only for eight hours each. 5.02 Coverage ART. 82: Coverage. - The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. As used herein, "managerial employees" refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. "Field personnel" shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. NIKKI HIPOLITO
NOTES
COVERED: Employees in all establishments and undertakings, whether for profit or not—all employees in private sector. Exemption—Managerial Employees • Government Employees • Managerial Employees • Field Personnel • Members of the Employer’s Family Dependent upon for Support • Domestic Helpers • Persons in Personal Service of Another • Piece Worker Note: If piece worker earns less than minimum wage, then he is paid the minimum wage. • Managerial Employee—primary duty consists of management of establishment, includes members of managerial staff • Field Personnel—non-agricultural employee who regularly performs duties away from principal place of business and whose actual hours of work in the field cannot be determined with reasonable certainty. Cases Penaranda v. Bananga Plywood Corp., 489 SCRA 94 (2006) Article 82 of the Labor Code exempts managerial employees from the coverage of labor standards. Labor standards provide the working conditions of employees, including entitlement to overtime pay and premium pay for working on rest days. Under this provision, managerial employees are "those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision." The Implementing Rules of the Labor Code state that managerial employees are those who meet the following conditions: 1. Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; 2. They customarily and regularly direct the work of two or more employees therein; 3. They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight. Asia Pacific Chartering, Inc. v. Farolan, 393 SCRA 454 (2004) "Managerial employees are ranked as Top Managers, Middle Managers and First Line Managers. The mere fact that an employee is designated "manager" does not ipso facto make him one-designation should be reconciled with the actual job description of the employee for it is the job description that determines the nature of employment."
74
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Before one may be properly considered a managerial employee, all the following conditions must be met: (1) Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; (2) They customarily and regularly direct the work of two or more employees therein; (3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight. National Waterworks and Sewerage Authority v. NAWASA Consolidated Union, 11 SCRA 766 (1965) One of the distinguishing characteristics managerial employee may be known as expressed in the explanatory note of Republic Act No. 2377 is that he is not subject to the rigid observance of regular office hours. The true worth of his service does not depend so much on the time he spends in office but more on the results he accomplishes. In fact, he is free to go out of office anytime. The philosophy behind the exemption of managerial employees from the 8Hour Labor Law is that such workers are not usually employed for every hour of work but their compensation is determined considering their special training, experience or knowledge which requires the exercise of discretion and independent judgment, or perform work related to management policies or general business operations along specialized or technical lines. For these workers it is not feasible to provide a fixed hourly rate of pay or maximum hours of labor. Tests—Field Personnel 1. Not under the effective control and supervision of the employer (Merdicar Fishing Corp. v. NLRC) 2. Number of hours spent working cannot be reasonably ascertained (Union of Filipro Employees v. Vivar) Cases Auto Bus Transport Systems, Inc. v. Bautista, 458 SCRA 578 (2005) A careful perusal of said provisions of law will result in the conclusion that the grant of service incentive leave has been delimited by the Implementing Rules and Regulations of the Labor Code to apply only to those employees not explicitly excluded by Section 1 of Rule V. According to the Implementing Rules, Service Incentive Leave shall not apply to employees classified as "field personnel." The phrase "other employees whose performance is unsupervised by the employer" must not be understood as a separate classification of employees to which service incentive leave shall not be granted. Rather, it serves as an amplification of the interpretation of the definition of field personnel under the Labor Code as those "whose NIKKI HIPOLITO
NOTES
actual hours of work in the field cannot be determined with reasonable certainty." The same is true with respect to the phrase "those who are engaged on task or contract basis, purely commission basis." Said phrase should be related with "field personnel," applying the rule on ejusdem generis that general and unlimited terms are restrained and limited by the particular terms that they follow.9 Hence, employees engaged on task or contract basis or paid on purely commission basis are not automatically exempted from the grant of service incentive leave, unless, they fall under the classification of field personnel. It is necessary to stress that the definition of a "field personnel" is not merely concerned with the location where the employee regularly performs his duties but also with the fact that the employee’s performance is unsupervised by the employer. As discussed above, field personnel are those who regularly perform their duties away from the principal place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. Thus, in order to conclude whether an employee is a field employee, it is also necessary to ascertain if actual hours of work in the field can be determined with reasonable certainty by the employer. In so doing, an inquiry must be made as to whether or not the employee’s time and performance are constantly supervised by the employer. Far-East Agricultural Supply, Inc. v. Lebatique, 515 SCRA 491 (2007) As correctly found by the Court of Appeals, Lebatique is not a field personnel as defined above for the following reasons: (1) company drivers, including Lebatique, are directed to deliver the goods at a specified time and place; (2) they are not given the discretion to solicit, select and contact prospective clients; and (3) Far East issued a directive that company drivers should stay at the client’s premises during truck-ban hours which is from 5:00 to 9:00 a.m. and 5:00 to 9:00 p.m. Even petitioners admit that the drivers can report early in the morning, to make their deliveries, or in the afternoon, depending on the production of animal feeds. Drivers, like Lebatique, are under the control and supervision of management officers. Lebatique, therefore, is a regular employee whose tasks are usually necessary and desirable to the usual trade and business of the company. Thus, he is entitled to the benefits accorded to regular employees of Far East, including overtime pay and service incentive leave pay. Union of Filipro Employees v. Vivar, 205 SCRA 200 (1992) Contrary to the contention of the petitioner, the Court finds that the aforementioned rule did not add another element to the Labor Code definition of field personnel. The clause "whose time and performance is unsupervised by the employer" did not amplify but merely interpreted and expounded the clause "whose actual hours of work in the field cannot be
75
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
determined with reasonable certainty." The former clause is still within the scope and purview of Article 82 which defines field personnel. Hence, in deciding whether or not an employee's actual working hours in the field can be determined with reasonable certainty, query must be made as to whether or not such employee's time and performance is constantly supervised by the employer. Salazar v. NLRC, 256 SCRA 273 (1996) From the foregoing, it is apparent that [petitioner] discharge[s] duties and responsibilities which ineluctably qualify [him] as officer or member of the managerial staff, as defined in Section 2, Rule I, Book III of the aforestated Rules to Implement the Labor Code, viz.: (1) their primary duty consists of the performance of work directly related to management policies of their employer; (2) they customarily and regularly exercise discretion and independent judgment; (3) they regularly and directly assist the managerial employee whose primary duty consists of the management of a department of the establishment in which they are employed; (4) they execute, under general supervision, work along specialized or technical lines requiring special training, experience, or knowledge; (5) they execute, under general supervision, special assignments and tasks; and (6) they do not devote more than 20% of their hours worked in a work-week to activities which are not directly and clearly related to the performance of their work hereinbefore described. Merdicar Fishing Corp. v. NLRC, 297 SCRA 440 (1998) During the entire course of their fishing voyage, fishermen employed by petitioner have no choice but to remain on board its vessel. Although they perform non-agricultural work away from petitioner's business offices, the fact remains that throughout the duration of their work they are under the effective control and supervision of petitioner through the vessel's patron or master as the NLRC correctly held. Rationale Exemption—Piece Worker Piece workers’ pay is dependent on unit of product finished or work completed and not on the time spent in working. Piece-rate method is preferred where the work process is repetitive and the output is standardized and easily countable. In the task or pakyaw method, the payment is calculated to match the difficulty and time requirement of the job, as in plowing a given area of land or painting a building. Cases Red V Coconut Products, Ltd. v. CIR, 17 SCRA 553 (1966) The philosophy underlying the exclusion of piece workers from the EightHour Labor Law is that said workers are paid depending upon the work they do "irrespective of the amount of time employed" in doing said work. Such freedom as to hours of work does not obtain in the case of the laborers herein involved, since they are assigned by the employer to work in two NIKKI HIPOLITO
NOTES
shifts for 12 hours each shift. Thus it cannot be said that for all purposes these workers fall outside the law requiring payment of compensation for work done in excess of eight hours. At least for the purpose of recovering the full differential pay stipulated in the bargaining agreement as due to laborers who perform 12 hours of work under the night shift, said laborers should be deemed pro tanto or to that extent within the scope of the aforestated law. 5.03 Normal Hours of Work ART. 83: Normal hours of work. – The normal hours of work of any employee shall not exceed eight (8) hours a day. Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, “health personnel” shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. EIGHT-HOUR LABOR LAW: enacted not only to safeguard the health and welfare of the employee or laborer, but in a way to minimize unemployment by forcing employers, in cases where more than 8-hour operation is necessary, to utilize different shifts of laborers or employees working only for 8 hours each. • Part-Time Work: NOT prohibited o It is not prohibited to have “normal hours of work” of less than 8 hours a day. o What is regulated is work hours exceeding eight. o It prescribes a maximum, NOT a minimum. o Proportionate wage for part-time work is recognized in the eight paragraph of Art. 124, as amended by RA 6727. • Work Hours of Health Personnel o Customary practice of requiring 24-hour a day of work for resident physicians is not permissible and violates the limitations under Art. 83. o 40-Hour workweek—NOT applicable if there is a training agreement between the resident physician and the hospital and the training program is duly accredited or approved by the appropriate government agency.
76
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
o
RA 7305—specifies the work hours, night shift differential pay and other employment benefits for health personnel in government service.
• 12-Hour Workshift with Overtime o Validated by consent and its four-hour overtime work with overtime pay becomes a contractual commitment. • Compressed Work Week: Requisites 1. Employee voluntarily agrees to it 2. No diminution in their weekly or monthly take home pay or fringe benefits 3. Benefits are more than or at least commensurate or equal to what is due the employees without the compressed work week 4. Overtime pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule 5. No strenuous physical exertion or that they are given adequate rest periods 6. It must be for a temporary duration as determined by DOLE. 5.04 Hours Worked ART. 84: Hours worked. – Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked. Note: a. b. c. d.
For hours worked to be compensable: Employee is required to be on duty Employee is suffered or permitted to work Rest periods* of short duration during working hours Travel time, when beneficial to employer (Rada v NLRC) a. Travel from home to work—if on call and required to travel b. All in the day’s work—traveling is the principal activity, regardless of contract, custom, practice c. Travel away from home—cut across employee’s workday • Not counted when: (Luzon Stevedoring v. Luzon Marine) i. Employee ceases to work ii. Employee may rest completely iii. Employee may leave at his will the spot where he actually stays while working to go somewhere else iv. When work is broken/not continuous (NDC v CIR)
NIKKI HIPOLITO
NOTES
v.
Assembly time, routinary practice of employees, proceedings not infected with complexities so as to deprive employees time to attend to their personal pursuits (Arica v NLRC) vi. Meal time (60 mins), unless predominantly spent for employer’s benefit Note: Preliminary activities (before work) and postliminary activities (after work) are deemed performed during work hours, where such activities are controlled or required by the employer and are pursued necessarily and primarily for the employer’s benefit. Idle Time Cases National Development Co. v. CIR, 6 SCRA 763 (1962) Under the law, the idle time that an employee may spend for resting and during which he may leave the spot or place of work though not the premises of his employer, is not counted as working time only where the work is broken or is not continuous. Luzon Stevedoring Co. v. Luzon Marine Department Union, 101 Phil. 257 (1957) For the purposes of this case, We do not need to set for seamen a criterion different from that applied to laborers on land, for under the provisions of the above quoted section, the only thing to be done is to determine the meaning and scope of the term "working place" used therein. As We understand this term, a laborer need not leave the premises of the factory, shop or boat in order that his period of rest shall not be counted, it being enough that he "cease to work", may rest completely and leave or may leave at his will the spot where he actually stays while working, to go somewhere else, whether within or outside the premises of said factory, shop or boat. If these requisites are complied with, the period of such rest shall not be counted. Continuous Work Cases States Marine Corporation v. Cebu Seamen’s Association, 7 SCRA 294 (1963) And considering the established fact that the work of Severino Pepito was continuous, and during the time he was not working, he could not leave and could not completely rest, because of the place and nature of his work, the provisions of sec. 1, of Comm. Act No. 444, which states "When the work is not continuous, the time during which the laborer is not working and can leave his working place and can rest completely shall not be counted", find no application in his case.
77
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
Waiting Time Controlling factor: Whether waiting time spend in idleness is so spent predominantly for the employer’s benefit or for the employee’s
held that the thirty-minute "waiting time" complained of was a mere "assembly time" and not a waiting time as the term is known in law, and hence, a compensable hour of work.
Waiting time spent by an employee shall be considered as working time if waiting is considered an integral part of his work or his employee is required or engaged by an employer to wait.
The petitioners have vehemently maintained that in view thereof, the instant case should be distinguished from the first case. And I do not believe that the respondents have successfully rebutted these allegations. The Solicitor General relies solely on the decision of then Minister Ople, the decision the petitioners precisely reject in view of the changes in the conditions of the parties. The private respondent on the other hand insists that these practices were the same practices taken into account in ALU v. STANFILCO. If this were so, the Ople decision was silent thereon. It is evident that the Ople decision was predicated on the absence of any insinuation of obligatoriness in the course or after the assembly activities on the part of the employees.(" . . [T]hey are not subject to the absolute control of the company during this period, otherwise, their failure to report in the assembly time would justify the company to impose disciplinary measures;" supra, 6.) As indicated, however, by the petitioners, things had since changed, and remarkably so, and the latter had since been placed under a number of restrictions. My considered opinion is that the thirtyminute assembly time had become, in truth and fact, a "waiting time" as contemplated by the Labor Code.
Cases Arica v. NLRC, 170 SCRA 776 (1989) The said case involved a claim for "waiting time", as the complainants purportedly were required to assemble at a designated area at least 30 minutes prior to the start of their scheduled working hours "to ascertain the work force available for the day by means of a roll call, for the purpose of assignment or reassignment of employees to such areas in the plantation where they are most needed." The Minister of Labor held: The thirty (30)-minute assembly time long practiced and institutionalized by mutual consent of the parties under Article IV, Section 3, of the Collective Bargaining Agreement cannot be considered as waiting time within the purview of Section 5, Rule I, Book III of the Rules and Regulations Implementing the Labor Code. ... Furthermore, the thirty (30)-minute assembly is a deeply- rooted, routinary practice of the employees, and the proceedings attendant thereto are not infected with complexities as to deprive the workers the time to attend to other personal pursuits. They are not new employees as to require the company to deliver long briefings regarding their respective work assignments. Their houses are situated right on the area where the farm are located, such that after the roll call, which does not necessarily require the personal presence, they can go back to their houses to attend to some chores. In short, they are not subject to the absolute control of the company during this period, otherwise, their failure to report in the assembly time would justify the company to impose disciplinary measures. The CBA does not contain any provision to this effect; the record is also bare of any proof on this point. This, therefore, demonstrates the indubitable fact that the thirty (30)-minute assembly time was not primarily intended for the interests of the employer, but ultimately for the employees to indicate their availability or non-availability for work during every working day. DISSENTING OPINION: Sarmiento The decision penned by then Minister Blas Ople in ALU v. STANFILCO (NLRC Case No. 26-LS-XI-76) relied upon by the respondents as basis for claims of res judicata, is not, to my mind, a controlling precedent. In that case, it was NIKKI HIPOLITO
Travel Time 1. Travel from home to work: NOT WORKTIME; engaged in ordinary home-to-work travel which is a normal incident of employment—true whether he works at a fixed location or at different jobsites. EXCEPT: When an employee receives an emergency call outside of his regular working hours and is required to travel to his regular place of business or some other work site, all of the time spent in such travel is work time. 2. Travel that is all in the day’s work: WORKTIME; time spent by an employee in travel as part of his principal activity. 3. Travel away from home: WORKTIME; travel that keeps an employee away from home overnight; includes not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Cases Rada v. NLRC, 205 SCRA 69 (1992) The fact that he picks up employees of Philnor at certain specified points along EDSA in going to the project site and drops them off at the same points on his way back from the field office going home to Marikina, Metro Manila is not merely incidental to petitioner's job as a driver. On the
78
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
contrary, said transportation arrangement had been adopted, not so much for the convenience of the employees, but primarily for the benefit of the employer, herein private respondent. This fact is inevitably deducible from the Memorandum of respondent company. Entry Time Cards Cases Aklan Electric Coop., Inc. v. NLRC, 323 SCRA 258 (2000) Finally, we hold that public respondent erred in merely relying on the computations of compensable services submitted by private respondents. There must be competent proof such as time cards or office records to show that they actually rendered compensable service during the stated period to entitle them to wages. It has been established that the petitioner's business office was .transferred to Kalibo and all its equipments, records and facilities were transferred thereat and that it conducted its official business in Kalibo during the period in question. It was incumbent upon private respondents to prove that they indeed rendered services for petitioner, which they failed to do. It is a basic rule in evidence that each party must prove his affirmative allegation. Since the burden of evidence lies with the party who asserts the affirmative allegation, the plaintiff or complainant has to prove his affirmative allegations in the complaint and the defendant or the respondent has to prove the affirmative allegation in his affirmative defenses and counterclaim. Prangan v. NLRC, 289 SCRA 142 (1998) In the instant petition, the NLRC, in declaring that petitioner only worked for four hours, relied solely on the supposed daily time records of the petitioner submitted by the private respondent. We, however, are of the opinion that these documents cannot be considered substantial evidence as to conclude that petitioner only worked for four hours. It is worth mentioning that petitioner, in his Sur-Rejoinder to Respondents' Rejoinder, unequivocally stated that: Complainant (petitioner herein) never made nor submitted any daily time record with respondent company considering the fact that he was assigned to a single post and that the daily time records he allegedly submitted with respondent company are all falsified and his signature appearing therein forged. Private respondent hardly bothered to controvert petitioner's assertion, much less bolster its own contention. As petitioner's employer, private respondent has unlimited access to all relevant documents and records on the hours of work of the petitioner. Yet, even as it insists that petitioner only worked for four hours and not twelve, no employment contract, payroll, notice of assignment or posting, cash voucher or any other convincing evidence which may attest to the actual hours of work of the petitioner was even presented. Instead, what the private respondent offered as evidence NIKKI HIPOLITO
NOTES
was only petitioner's daily time record, which the latter categorically denied ever accomplishing, much less signing. All told, private respondent has not adequately proved that petitioner's actual hours of work is only four hours. Its unexplained silence contravening the personnel data sheet and the attendance sheets of Cat House Bar and Restaurant presented by the petitioner showing he worked for twelve hours, has assumed the character of an admission. No reason was proffered for this silence despite private respondent, being the employer, could have easily done so. Nicario v. NLRC, 295 SCRA 619 (1998) This Court, in previously evaluating the evidentiary value of daily time records, especially those which show uniform entries with regard to the hours of work rendered by an employee, has ruled that "such unvarying recording of a daily time record is improbable and contrary to human experience. It is impossible for an employee to arrive at the workplace and leave at exactly the same time, day in day out. The uniformity and regularity of the entries are 'badges of untruthfulness and as such indices of dubiety.' The observations made by the Solicitor General regarding the unreliability of the daily time records would therefore seem more convincing. On the other hand, respondent company failed to present substantial evidence, other than the disputed DTRs, to prove that petitioner indeed worked for only eight hours a day. It is a well-settled doctrine, that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. It is a time-honored rule that in controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former's favor. The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection of labor. This rule should be applied in the case at bar, especially since the evidence presented by private respondent company is not convincing. Accordingly, we uphold the finding that petitioner rendered overtime work, entitling her to overtime pay. 5.05 Meal Period ART. 85: Meal periods. – Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals. Meal Time—Free Time General Rule: Meal Time is NOT compensable. Except: In cases where the lunch period or meal time is predominantly spent for the employer’s benefit or where it is less than 60 minutes.
79
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
• When Meal Time is Worked: Continuous Shifts Meal time breaks should be counted as working time for purposes of overtime compensation. • Meal Time of Less Than 60 Minutes Sec. 7 of Rule I, Book III Implementing Rules allows meal time to be less than 60 minutes but not shorter than 20 minutes. But such shortened meal time should be with full pay, and the time when the employee cannot eat because he is still working, shall also be paid.
NOTES
(a) Where the work is non-manual work in nature or does not involve strenuous physical exertion; (b) Where the establishment regularly operates not less than sixteen hours a day; (c) In cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; and
If meal time is less than 20 minutes, it is considered a rest period and considered as working time.
(d) Where the work is necessary to prevent serious loss of perishable goods.
• Shortened Meal Break Upon Employee’s Request Shortened meal period is NOT compensable. The DOLE, in allowing such agreements, imposes certain conditions: 1. Employees voluntarily agree in writing to a shortened meal period of 30 minutes and are willing to waive the overtime pay for such shortened meal period; 2. There will be no diminution of whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period; 3. The work of the employees does not involve strenuous physical exertion and they are provided with adequate “coffee breaks” in the morning and afternoon; 4. The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned; 5. The overtime pay of the employees will become due and demandable if ever they are permitted or made to work beyond 4:30PM; and 6. The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the DOLE Secretary.
Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working time.
Cases Phil. Airlines, Inc. v. NLRC, 302 SCRA 582 (1999) Sec. 7, Rule I, Book III of the Omnibus Rules Implementing the Labor Code further states: Sec. 7. Meal and Rest Periods. — Every employer shall give his employees, regardless of sex, not less than one (1) hour time-off for regular meals, except in the following cases when a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee;
NIKKI HIPOLITO
Thus, the eight-hour work period does not include the meal break. Nowhere in the law may it be inferred that employees must take their meals within the company premises. Employees are not prohibited from going out of the premises as long as they return to their posts on time. Private respondent's act, therefore, of going home to take his dinner does not constitute abandonment. Pan-American Airways v. Pan-American Employees Association, 1 SCRA 527 (1961) The Industrial Court's order for permanent adoption of a straight 8-hour shift including the meal period was but a consequence of its finding that the meal hour was not one of complete rest, but was actually a work hour, since for its duration, the laborers had to be on ready call. Of course, if the Company practices in this regard should be modified to afford the mechanics a real rest during that hour (f. ex., by installing an entirely different emergency crew, or any similar arrangement), then the modification of this part of the decision may be sought from the Court below. As things now stand, we see no warrant for altering the decision. 5.06 Overtime Work and Offsetting Prohibition ART. 87: Overtime work. – Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twentyfive percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. ART. 88: Undertime not offset by overtime. – Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the
80
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
week shall not exempt the employer compensation required in this Chapter.
NOTES
from
paying
the
additional
ART. 89: Emergency overtime work. – Any employee may be required by the employer to perform overtime work in any of the following cases: (a) When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; (b) When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; (c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; (d) When the work is necessary to prevent loss or damage to perishable goods; and (e) Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter. ART. 90: Computation of additional compensation. – For purposes of computing overtime and other additional remuneration as required by this Chapter, the “regular wage” of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer. Notes: If beyond 8 hours, regular working day: Regular Wage + 25% of the Regular Wage Overtime Pay If on holiday/rest day: Rate of 1st 8 hours on a holiday/rest day + 30% of holiday/rest day pay Overtime Pay • If contract requires for more than 8 hours of work/day, it is void if it does not provide: a. Fixed hourly rate OR b. Daily wages include OT (Manila Terminal v. CIR) c. If built-in OT, it could provide higher pay, whether excess time is worked or unworked (Engineering Equipment v. MOLE)
NIKKI HIPOLITO
• Undertime cannot offset overtime Definition and Rationale—Overtime Pay Definition: Overtime Compensation is additional pay for service or work rendered or performed in excess of 8 hours a day by employees or laborers in employment covered by the Eight-Hour Labor Law, and not exempt form its requirements. It is computed by multiplying the overtime hourly rate by the number of hours worked in excess of eight hours. Rationale: Because the employee is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do—opportunity cost for him. Cases Letran, etc. v. NLRC, 543 SCRA 26 (2008) “3. The normal hours of work of teaching or academic personnel shall be based on their normal or regular teaching loads. Such normal or regular teaching loads shall be in accordance with the policies, rules and standards prescribed by the Department of Education, Culture and Sports, the Commission on Higher Education and the Technical Education and Skills Development Authority. Any teaching load in excess of the normal or regular teaching load shall be considered as overload. Overload partakes of the nature of temporary extra assignment and compensation therefore shall be considered as an overload honorarium if performed within the 8-hour work period and does not form part of the regular or basic pay. Overload performed beyond the eight-hour daily work is overtime work.” In the present case, while the DOLE Order may not be applicable, the Court finds that overload pay should be excluded from the computation of the 13th-month pay of petitioner's members. In resolving the issue of the inclusion or exclusion of overload pay in the computation of a teacher's 13th-month pay, it is decisive to determine what "basic salary" includes and excludes. In the same manner that payment for overtime work and work performed during special holidays is considered as additional compensation apart and distinct from an employee's regular wage or basic salary, an overload pay, owing to its very nature and definition, may not be considered as part of a teacher's regular or basic salary, because it is being paid for additional work performed in excess of the regular teaching load.
81
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Caltex Regular Employees, etc. v. Caltex (Phils.) Inc., 247 SCRA 398 (1995) Overtime work consists of hours worked on a given day in excess of the applicable work period, which here is eight (8) hours. It is not enough that the hours worked fall on disagreeable or inconvenient hours. In order that work may be considered as overtime work, the hours worked must be in excess of and in addition to the eight (8) hours worked during the prescribed daily work period, or the forty (40) hours worked during the regular work week Monday thru Friday. PNB v. PNB Employees Association, 115 SCRA 507 (1982) Why is a laborer or employee who works beyond the regular hours of work entitled to extra compensation called in this enlightened time, overtime pay? Verily, there can be no other reason than that he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do. When he thus spends additional time to his work, the effect upon him is multi-faceted: he puts in more effort, physical and/or mental; he is delayed in going home to his family to enjoy the comforts thereof; he might have no time for relaxation, amusement or sports; he might miss important prearranged engagements; etc., etc. It is thus the additional work, labor or service employed and the adverse effects just mentioned of his longer stay in his place of work that justify and is the real reason for the extra compensation that he called overtime pay. Overtime work is actually the lengthening of hours developed to the interests of the employer and the requirements of his enterprise. It follows that the wage or salary to be received must likewise be increased, and more than that, a special additional amount must be added to serve either as encouragement or inducement or to make up fop the things he loses which We have already referred to. And on this score, it must always be borne in mind that wage is indisputably intended as payment for work done or services rendered. Manila Terminal Co., Inc. v. CIR, 91 Phil. 625 (1952) Sections 3 and 5 of Commonwealth Act 444 expressly provides for the payment of extra compensation in cases where overtime services are required, with the result that the employees or laborers are entitled to collect such extra compensation for past overtime work. To hold otherwise would be to allow an employer to violate the law by simply, as in this case, failing to provide for and pay overtime compensation. It is high time that all employers were warned that the public is interested in the strict enforcement of the Eight-Hour Labor Law. This was designed not only to safeguard the health and welfare of the laborer or employee, but in a way to minimize unemployment by forcing employers, in cases where more than 8-hour operation is necessary, to utilize different shifts of NIKKI HIPOLITO
NOTES
laborers or employees working only for eight hours each. No Computation Formula Basic Contract Cases Manila Terminal Co., Inc. v. CIR, 91 Phil. 625 (1952) The Eight-Hour Law, in providing that "any agreement or contract between the employer and the laborer or employee contrary to the provisions of this Act shall be null avoid ab initio," (Commonwealth Act No. 444, sec. 6), obviously intended said provision for the benefit of the laborers or employees. The employer cannot, therefore, invoke any violation of the act to exempt him from liability for extra compensation. This conclusion is further supported by the fact that the law makes only the employer criminally liable for any violation. It cannot be pretended that, for the employer to commit any violation of the Eight-Hour Labor Law, the participation or acquiescence of the employee or laborer is indispensable, because the latter in view of his need and desire to live, cannot be considered as being on the same level with the employer when it comes to the question of applying for and accepting an employment. Built-In Compensation Built-In Compensation is NOT per se illegal. This arrangment is not unusual for executives or managers, who are not entitled to overtime pay and other benefits from Art. 82 to 96. Built-In Overtime Pay in Government-Approved Contract Nonpayment of the employer of the overtime pay to the employee was valid, as said overtime pay was already provided in the written contract with a built-in overtime pay and signed by the Director of Bureau of Employment Services and enforced by the employer (Engineering Equipment v. MOLE). Cases Engineering Equipment Inc. v. MOLE, 138 SCRA 616 (1985) It also asserts that Aspera was one of several employees who signed written contracts with a "built-in" overtime pay in the ten-hour working day and that their basic monthly pay was adjusted to reflect the higher amount covering the guaranteed two-hour extra time whether worked or unworked. We hold that under the particular circumstances of this case the Acting Minister of Labor and Director De la Cruz committed a grave abuse of discretion amounting to lack of jurisdiction in awarding overtime pay and in disregarding a contract that De la Cruz himself, who is supposed to know the Eight-Hour Labor Law, had previously sealed with his imprimatur. Because of that approval, the petitioner acted in good faith in enforcing the contract.
82
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Proof of Work Cases Lagatic v. NLRC, 285 SCRA 251 (1998) Petitioner failed to show his entitlement to overtime and rest day pay due, to the lack of sufficient evidence as to the number of days and hours when he rendered overtime and rest day work. Entitlement to overtime pay must first be established by proof that said overtime work was actually performed, before an employee may avail of said benefit. To support his allegations, petitioner submitted in evidence minutes of meetings wherein he was assigned to work on weekends and holidays at Cityland's housing projects. Suffice it to say that said minutes do not prove that petitioner actually worked on said dates. It is a basic rule in evidence that each party must prove his affirmative allegations. This petitioner failed to do. He explains his failure to submit more concrete evidence as being due to the decision rendered by the labor arbiter without resolving his motion for the production and inspection of documents in the control of Cityland. Petitioner conveniently forgets that on January 27, 1994, he agreed to submit the case for decision based on the records available to the labor arbiter. This amounted to an abandonment of above-said motion, which was then pending resolution. SSS v. CA, 348 SCRA 1 (2000) No particular form of evidence is required to prove the existence of an employer-employee relationship. Any competent and relevant evidence to prove the relationship may be admitted. For, if only documentary evidence would be required to show that relationship, no scheming employer would ever be brought before the bar of justice, as no employer would wish to come out with any trace of the illegality he has authored considering that it should take much weightier proof to invalidate a written instrument. Thus, as in this case where the employer-employee relationship between petitioners and Esita was sufficiently proved by testimonial evidence, the absence of time sheet, time record or payroll has become inconsequential.” Dacut v. CA, 550 SCRA 260 (2008) Apropos the monetary claims, there is insufficient evidence to prove petitioners' entitlement thereto. As crew members, petitioners were required to stay on board the vessel by the very nature of their duties, and it is for this reason that, in addition to their regular compensation, they are given free living quarters and subsistence allowances when required to be on board. It could not have been the purpose of our law to require their employers to give them overtime pay or night shift differential, even when they are not actually working. Thus, the correct criterion in determining whether they are entitled to overtime pay or night shift differential is not whether they were on board and cannot leave ship beyond the regular eight working hours a day, but whether they actually rendered service in excess of said number of hours. In this case, petitioners failed to submit sufficient
NIKKI HIPOLITO
NOTES
proof that overtime and night shift work were actually performed to entitle them to the corresponding pay. Villar v. NLRC, 331 SCRA 686 (2000) Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. To constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. Mere absence of the employee is not sufficient. The burden of proof to show a deliberate and unjustified refusal of an employee to resume his employment without any intention of returning rests on the employer. Employer Obligation Cases SSS v. CA, 348 SCRA 1 (2000) As the employer, the latter is duty-bound to keep faithful and complete records of her business affairs, not the least of which would be the salaries of the workers. Computation For purposes of computing overtime and additional remuneration as required, the regular wage of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer. Cases PCL Shipping Phils. Inc. v. NLRC, 511 SCRA 44 (2007) The Court finds no basis in the NLRC’s act of including private respondent’s living allowance as part of the three months salary to which he is entitled under Section 10 of Republic Act (RA) No. 8042, otherwise known as the “Migrant Workers and Overseas Filipinos Act of 1995.” The pertinent provisions of the said Act provides: Sec. 10. Money Claims – xxxx In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee 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. xxxx It is clear from the above-quoted provision that what is included in the computation of the amount due to the overseas worker are only his salaries. Allowances are excluded. In the present case, since private respondent
83
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
received a basic monthly salary of US$400.00, he is, therefore, entitled to receive a sum of US$1200.00, representing three months of said salary. 5.07 Night Work ART. 86: Night shift differential. – Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning. Notes: If work is between 10PM-6AM, employee is entitled to night shift differentials. Night Shift Differential Pay = 10% of Regular Wage for each hour of work performed From DOLE Where night shift (10PM-6AM) work is Regular Work: 1. On an ordinary day—plus 10% of the basic hourly rate or a total of 110% of the basic hourly rate 2. On a rest day, special day or regular holiday—plus 10% of the regular hourly rate on a rest day, special day or regular holiday or a total of 110% of the regular hourly rate. Where night shift (10PM-6AM) work is Overtime Work: 1. On an ordinary day—plus 10% of the overtime hourly rate on an ordinary day or a total or 110% of the overtime hourly rate on an ordinary day. 2. On a rest day, special day or regular holiday—plus 10% of the overtime hourly rate on a rest day, special day or regular holiday. 3. For overtime work in night shift: a. On an ordinary day—plus 10% of 125% of basic hourly rate or a total of 110% of 125% of basic hourly rate. b. On a rest day, special day or regular holiday—plus 10% of 130% of the regular hourly rate on said days or a total of 110% of 130% of the applicable regular hourly rate. Rationale Prohibition Rationale: Night work cannot be regarded as desirable, either from the point of view of the employer or the employee. It is uneconomical unless overhead costs are unusually heavy. Frequently, the scale of wages is higher as an inducement to employment on the night shift, and the rate of production is generally lower. Adverse effects include 1. Anemia, tubercolosis and other ills due to lack of sunlight 2. Eyestrain and accident 3. Serious moral dangers from traveling alone at night NIKKI HIPOLITO
NOTES
4. Unprofitable Cases Shell Oil Co. of the Phil., Ltd. v. National Labor Union, 81 Phil. 315 (1948)—EL CASO ES EN ESPANOL Then, it must be remembered that it is distinctly unphysiological to turn the night into day and deprive the body of the beneficial effects of sunshine. The human organism revolts against this procedure. Added to artificial lighting are reversed and unnatural times of eating, resting, and sleeping. Much of the inferiority of nightwork can doubtless be traced to the failure of the workers to secure proper rest and sleep, by day. Because of inability or the lack of opportunity to sleep, nightworkers often spend their days in performing domestic duties, joining the family in the midday meal, 'tinkering about the place', watching the baseball game, attending the theater or taking a ride in the car. It is not strange that nightworkers tend to be less efficient than dayworkers and lose more time. . . Nightwork has almost invariably been looked upon with disfavor by students of the problem because of the excessive strain involved, especially for women and young persons, the large amount of lost time consequent upon exhaustion of the workers, the additional strain and responsibility upon the executive staff, the tendency of excessively fatigued workers to "keep going" on artificial stimulants, the general curtailment of time for rest, leisure, and cultural improvement, and the fact that night workers, although precluded to an extent from the activities of day life, do attempt to enter into these activities, with resultant impairment of physical well-being. It is not contended, of course, that nightwork could be abolished in the continuous-process industries, but it is possible to put such industries upon a three- or four-shifts basis, and to prohibit nightwork for women and children. The case against nightwork, then, may be said to rest upon several grounds. In the first place, there are the remotely injurious effects of permanent nightwork manifested in the later years of the worker's life. Of more immediate importance to the average worker is the disarrangement of his social life, including the recreational activities of his leisure hours and the ordinary associations of normal family relations. From an economic point of view, nightwork is to be discouraged because of its adverse effect upon efficiency and output. A moral argument against nightwork in the case of women is that the night shift forces the workers to go to and from the factory in darkness. Recent experiences of industrial nations have added much to the evidence against the continuation of nightwork, except in extraordinary circumstances and unavoidable emergencies. The immediate prohibition of nightwork for all laborers is hardly practicable; its discontinuance in the case of women employees is unquestionably desirable. 'The night was made for rest and sleep and not for work' is a common saying among wage-earning people, and many of them dream of an industrial order in which there will be no night shift.
84
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
Dacut v. CA, 550 SCRA 260 (2008) As crew members, petitioners were required to stay on board the vessel by the very nature of their duties, and it is for this reason that, in addition to their regular compensation, they are given free living quarters and subsistence allowances when required to be on board. It could not have been the purpose of our law to require their employers to give them overtime pay or night shift differential, even when they are not actually working. Thus, the correct criterion in determining whether they are entitled to overtime pay or night shift differential is not whether they were on board and cannot leave ship beyond the regular eight working hours a day, but whether they actually rendered service in excess of said number of hours. In this case, petitioners failed to submit sufficient proof that overtime and night shift work were actually performed to entitle them to the corresponding pay.
SEC. 6. CONDITIONS PERIODS
OF
EMPLOYMENT—WEEKLY
REST
6.01 Rationale Rationale Cases Manila Electric Co. v. Public Utilities Employees Association, 79 Phil. 409 (1947) The division is not arbitrary, and the basis thereof is reasonable. Public utilities exempted from the prohibition set forth in the enactment clause of section 4, Commonwealth Act No. 444, are required to perform a continuous service including Sundays and legal holidays to the public, since the public good so demands, and are not allowed to collect an extra charge for services performed on those days; while the others are not required to do so and are free to operate or not their shops, business, or industries on Sundays and legal holidays. If they operate and compel their laborers to work on those days it is but just and natural that they should pay an extra compensation to them, because it is to be presumed that they can make money or business by operating on those days even if they have to pay such extra remuneration. It would be unfair for the law to compel public utilities like the appellant to pay an additional or extra compensation to laborers whom they have to compel to work duringSundays and legal holidays, in order to perform a continuous service to the public. To require public utilities performingservice to do so, would be tantamount to penalize them for performing public service during said days in compliance with the requirement of the law and public interest. 6.02 Coverage SEC. 82: Coverage. - The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to NIKKI HIPOLITO
government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. As used herein, "managerial employees" refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. "Field personnel" shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. SEC. 91 (A): Right to weekly rest day. - (a) It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days. 6.03 Scheduling of Rest Day SEC. 91 (B): (b) The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. 6.04 Compulsory Work and Compensation SEC. 92: When employer may require work on a rest day. - The employer may require his employees to work on any day: (a) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety; (b) In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer; (c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; (d) To prevent loss or damage to perishable goods;
85
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
(e) Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and (f) Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment.
SEC. 7. CONDITIONS OF EMPLOYMENT—HOLIDAYS 7.01 Coverage SEC. 94 (A): Right to holiday pay. - (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers; During holidays— a. Employees are paid regular daily wage (no work) except: in retail and service establishments + less than 10 workers employed b. Employer may require employee to work during the holiday BUT pay 2x the regular rate Coverage and Purpose Purpose: To prevent diminution of the monthly income of the workers on account of work interruptions declared by state. Cases Mantrade/FMC Division Employees and Workers Union v. Bacungan, 144 SCRA 510 (1986) The provision is mandatory, regardless of whether an employee is paid on a monthly or daily basis. San Miguel Corporation v. CA, 375 SCRA 311 (2002) Petitioner asserts that Article 3(3) of Presidential Decree No. 1083 provides that “(t)he provisions of this Code shall be applicable only to Muslims x x x.” However, there should be no distinction between Muslims and non-Muslims as regards payment of benefits for Muslim holidays. The Court of Appeals did not err in sustaining Undersecretary Español who stated: Assuming arguendo that the respondent’s position is correct, then by the same token, Muslims throughout the Philippines are also not entitled to holiday pays on Christian holidays declared by law as regular holidays. We must remind the respondent-appellant that wages and other emoluments granted by law to the working man are determined on the basis of the criteria laid down by laws and certainly not on the basis of the worker’s faith or religion. At any rate, Article 3(3) of Presidential Decree No. 1083 also declares that “x x x nothing herein shall be construed to operate to the prejudice of a non-Muslim.” NIKKI HIPOLITO
NOTES
In addition, the 1999 Handbook on Workers’ Statutory Benefits, approved by then DOLE Secretary Bienvenido E. Laguesma on 14 December 1999 categorically stated: Considering that all private corporations, offices, agencies, and entities or establishments operating within the designated Muslim provinces and cities are required to observe Muslim holidays, both Muslim and Christians working within the Muslim areas may not report for work on the days designated by law as Muslim holidays. Asian Transmission Corp. v. CA, 425 SCRA 478 (2004) Holiday pay is a legislated benefit enacted as part of the Constitutional imperative that the State shall afford protection to labor. (Section 3, Art. XIII, 1987 Constitution). Its purpose is not merely “to prevent diminution of the monthly income of the workers on account of work interruptions. In other words, although the worker is forced to take a rest, he earns what he should earn, that is, his holiday pay.” (Jose Rizal College vs. NLRC and NATOW, G.R. No. 65482, December 1, 1987). It is also intended to enable the worker to participate in the national celebrations held during the days identified as with great historical and cultural significance. Independence Day (June 12), Araw ng Kagitingan (April 9), National Heroes Day (last Sunday of August), Bonifacio Day (November 30) and Rizal Day (December 30) were declared national holidays to afford Filipinos with a recurring opportunity to commemorate the heroism of the Filipino people, promote national identity, and deepenthe spirit of patriotism. Labor Day (May 1) is a day traditionally reserved to celebrate the contributions of the working class to the development of the nation, while the religious holidays designated in Executive Order No. 203 allow the worker to celebrate his faith with his family. 7.02 Holidays EO 203, JUNE 30, 1984: Regular Holidays New Year’s Day January 1 Maundy Thursday Movable Date Good Friday Movable Date Araw ng Kagitingan April 9 Labor Day May 1 Independence Day June 12 National Heroes Day Last Sunday of August Bonifacio Day November 30 Christmas Day December 25 Rizal Day December 30 Eidul Fitr (RA 9177) Movable Date Eidul Adha Movable Date in ARMM * Special Holidays
86
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Ninoy Aquino Day All Souls’ Day New Year’s Eve
August 21 November 1 December 31
ART. 169, PD 1083 (1977): Official Muslim holidays. - The following are hereby recognized as legal Muslim holidays: (a) ‘Amun Jadīd (New Year), which falls on the first day of the first lunar month of Muharram; (b) Maulid-un-Nabī (Birthday of the Prophet Muhammad), which falls on the twelfth day of the third lunar month of Rabi-ulAwwal; (c) Lailatul Isrā Wal Mi’rāj (Nocturnal Journey and Ascension of the Prophet Muhammad), which falls on the twenty-seventh day of the seventh lunar month of Rajab; (d) ‘Īd-ul-Fitr (Hari Raya Puasa), which falls on the first day of the tenth lunar month of Shawwal, commemorating the end of the fasting season; and (e) ‘Īd-ūl-Adhā (Hari Raya Haji),which falls on the tenth day of the twelfth lunar month of Dhū’l-Hijja. 7.03 Holiday Pay SEC. 94: Right to holiday pay. - (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers; (b) The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and (c) As used in this Article, "holiday" includes: New Year’s Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election. Holiday Pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. This is limited to each of the 11 regular (legal) holidays. It is not demandable for any other kind of nonworking day. Faculty Private School Private school teachers, who are paid per lecture hour, are NOT entitled to unworked holiday pay for regular holidays, BUT entitled to holiday pay for
NIKKI HIPOLITO
NOTES
special public holidays and when classes are called off or shortened on account of typhoons, floods, rallies and the like, EXCEPT regular holidays during Christmas vacation. Cases Jose Rizal College v. NLRC, 156 SCRA 27 (1987) In the Implementing Rules and Regulations, Rule IV, Book III, which reads: SEC. 8. Holiday pay of certain employees. — (a) Private school teachers, including faculty members of colleges and universities, may not be paid for the regular holidays during semestral vacations. They shall, however, be paid for the regular holidays during Christmas vacations. ... Under the foregoing provisions, apparently, the petitioner, although a nonprofit institution is under obligation to give pay even on unworked regular holidays to hourly paid faculty members subject to the terms and conditions provided for therein. We believe that the aforementioned implementing rule is not justified by the provisions of the law which after all is silent with respect to faculty members paid by the hour who because of their teaching contracts are obliged to work and consent to be paid only for work actually done (except when an emergency or a fortuitous event or a national need calls for the declaration of special holidays). Regular holidays specified as such by law are known to both school and faculty members as no class days;" certainly the latter do not expect payment for said unworked days, and this was clearly in their minds when they entered into the teaching contracts. On the other hand, both the law and the Implementing Rules governing holiday pay are silent as to payment on Special Public Holidays. Divisor as Factor Whenever monthly-paid employees work on a holiday, they are given an additional 100% base pay on top of a premium pay of 50%. If the employee’s monthly pay already includes their salaries for holidays, they should be paid only minimum premium pay but not both base pay and premium pay. If all non-working days are paid, the divisor of monthly salary to obtain daily rate should be 365 and not 251. Cases Trans-Asia Phils. Employer Association v. NLRC, 320 SCRA 547 (1999) Trans-Asia's inclusion of holiday pay in petitioners' monthly salary is clearly established by its consistent use of the divisor of "286" days in the computation of its employees' benefits and deductions. The use by Trans-
87
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Asia of the "286" days divisor was never disputed by petitioners. A simple application of mathematics would reveal that the ten (10) legal holidays in a year are already accounted for with the use of the said divisor. As explained by Trans-Asia, if one is to deduct the unworked 52 Sundays and 26 Saturdays (derived by dividing 52 Saturdays in half since petitioners are required to work half-day on Saturdays) from the 365 calendar days in a year, the resulting divisor would be 286 days (should actually be 287 days). Since the ten (10) legal holidays were never included in subtracting the unworked and unpaid days in a calendar year, the only logical conclusion would be that the payment for holiday pay is already incorporated into the said divisor. Thus, when viewed against this very convincing piece of evidence, the arguments put forward by petitioners to support their claim of non-payment of holiday pay, i.e., the pre-condition stated in the Employees' Manual for entitlement to holiday pay, the absence of a stipulation in the employees' appointment papers for the inclusion of holiday pay in their monthly salary, the stipulation in the CBA recognizing the entitlement of the petitioners to holiday pay with a concomitant provision for the granting of an "allegedly" very generous holiday pay rate, would appear to be merely inferences and suppositions which, in the apropos words of the labor arbiter, "paled in the face of the prevailing company practices and circumstances abovestated." The proper divisor that should be used for a situation wherein the employees do not work and are not considered paid on Saturdays and Sundays or rest days is 262 days. In the present case, since the employees of Trans-Asia are required to work half-day on Saturdays, 26 days should be added to the divisor of 262 days, thus, resulting to 288 days. However, due to the fact that the rest days of petitioners fall on a Sunday, the number of unworked but paid legal holidays should be reduced to nine (9), instead of ten (10), since one legal holiday under E.O. No. 203 always falls on the last Sunday of August, National Heroes Day. Thus, the divisor that should be used in the present case should be 287 days. The Court rules that the adjusted divisor of 287 days should only be used by Trans-Asia for computations which would be advantageous to petitioners, i.e., deductions for absences, and not for computations which would diminish the existing benefits of the employees, i.e., overtime pay, holiday pay and leave conversions. Union of Filipro Employees v. Vivar, 205 SCRA 200 (1992) The divisor assumes an important role in determining whether or not holiday pay is already included in the monthly paid employee's salary and in the computation of his daily rate. This is the thrust of our pronouncement in Chartered Bank Employees Association v. Ople (supra). In that case, We held: It is argued that even without the presumption found in the rules and in the policy instruction, the company practice indicates that the NIKKI HIPOLITO
NOTES
monthly salaries of the employees are so computed as to include the holiday pay provided by law. The petitioner contends otherwise. One strong argument in favor of the petitioner's stand is the fact that the Chartered Bank, in computing overtime compensation for its employees, employs a "divisor" of 251 days. The 251 working days divisor is the result of subtracting all Saturdays, Sundays and the ten (10) legal holidays from the total number of calendar days in a year. If the employees are already paid for all non-working days, the divisor should be 365 and not 251. Following the criterion laid down in the Chartered Bank case, the use of 251 days' divisor by respondent Filipro indicates that holiday pay is not yet included in the employee's salary, otherwise the divisor should have been 261. Computation If 2 Regular Holidays fall in a single day— a. If unworked: employee receives 200% of regular wage (100%) for each regular holiday) b. If worked: employee receives 400% of the regular wage (2x 100% for each regular holiday) Cases Agga v. NLRC, 298 SCRA 285 (1998) The cited provisions of PD 442 simply declare that night shift differential and additional remuneration for overtime, rest day, Sunday and holiday work shall be computed on the basis of the employee's regular wage. In like fashion, the 1991 POEA Rules merely require employers to guarantee payment of wages and overtime pay. Sunday If the holiday falls on a Sunday, employer is only obligated to give holiday pay. Cases Wellington Investment Inc. v. Trajano, 245 SCRA 561 (1995) There is no provision of law requiring any employer to make such adjustments in the monthly salary rate set by him to take account of legal holidays falling on Sundays in a given year, or, contrary to the legal provisions bearing on the point, otherwise to reckon a year at more than 365 days. As earlier mentioned, what the law requires of employers opting to pay by the month is to assure that "the monthly minimum wage shall not be less than the statutory minimum wage multiplied by 365 days divided by twelve," and to pay that salary "for all days in the month whether worked or not," and "irrespective of the number of working days therein." That salary is due and payable regardless of the declaration of any special holiday in the
88
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
entire country or a particular place therein, or any fortuitous cause precluding work on any particular day or days (such as transportation strikes, riots, or typhoons or other natural calamities), or cause not imputable to the worker. And as also earlier pointed out, the legal provisions governing monthly compensation are evidently intended precisely to avoid re-computations and alterations in salary on account of the contingencies just mentioned, which, by the way, are routinely made between employer and employees when the wages are paid on daily basis. Proof of Payment Cases Building Care Corp. v. NLRC, 268 SCRA 666 (1997) Indeed if petitioner wanted to prove its payment of holiday pays and salary differentials, it could have easily presented proofs of such monetary benefits. But it did not. It had failed to comply with the mandate of the law. As public respondent ruled, the burden of proof in this regard belongs to the employer not to the employee.
SEC. 8. CONDITIONS OF EMPLOYMENT—LEAVES
NOTES
• •
Piece-Rate Workers Establishments Regularly Employing Less than 10 Workers o Burden is on the EMPLOYER, not on the EMPLOYEE, to prove that there are less than 10 employees in the company
Cases Makati Haberdashery Inc. v. NLRC, 179 SCRA 449 (1989) While private respondents are entitled to Minimum Wage, COLA and 13th Month Pay, they are not entitled to service incentive leave pay because as piece-rate workers being paid at a fixed amount for performing work irrespective of time consumed in the performance thereof, they fall under one of the exceptions stated in Section 1(d), Rule V, Implementing Regulations, Book III, Labor Code. 8.02 Entitlement and Arbitration SEC. 95 (A): Right to service incentive leave. - (a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
A. SERVICE INCENTIVE LEAVE
SEC. 95 (C): (c) The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.
8.01 Coverage SEC. 95 (A): Right to service incentive leave. - (a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
8.03 Computation (Commutation?) and Liability “The SIL shall be commutable to its money equivalent if not used or exhausted at the end of the year.”
SEC. 95 (B): (b) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment. Coverage “At least one year of service”—service within 12 months, whether continuous or broken, reckoned from the date the employee started working, including authorized absences and paid regular holidays, unless the number of working days in the establishment as a matter of practice or policy, or provided in the employment contract, is less than 12 months, in which case, said period shall be considered as 1 year for the purpose of determining entitlement to the SIL. Entitled to SIL: • Part-Time Workers • “On Contract” Workers like private school teachers
The basis of conversion shall be the salary rate at the date of the commutation. The availment and commutation of the SIL benefit may be on a pro-rata basis. Cases Auto Bus Transport Systems, Inc. v. Bautista, 458 SCRA 578 (2005) A careful perusal of said provisions of law will result in the conclusion that the grant of service incentive leave has been delimited by the Implementing Rules and Regulations of the Labor Code to apply only to those employees not explicitly excluded by Section 1 of Rule V. According to the Implementing Rules, Service Incentive Leave shall not apply to employees classified as "field personnel." The phrase "other employees whose performance is unsupervised by the employer" must not be understood as a separate classification of employees to which service incentive leave shall not be granted. Rather, it serves as an amplification of the interpretation of the definition of field personnel under the Labor Code as those "whose actual hours of work in the field cannot be determined with reasonable certainty.”
Not entitled to SIL: NIKKI HIPOLITO
89
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
The same is true with respect to the phrase "those who are engaged on task or contract basis, purely commission basis." Said phrase should be related with "field personnel," applying the rule on ejusdem generis that general and unlimited terms are restrained and limited by the particular terms that they follow. Hence, employees engaged on task or contract basis or paid on purely commission basis are not automatically exempted from the grant of service incentive leave, unless, they fall under the classification of field personnel. Applying Article 291 of the Labor Code in light of this peculiarity of the service incentive leave, we can conclude that the three (3)-year prescriptive period commences, not at the end of the year when the employee becomes entitled to the commutation of his service incentive leave, but from the time when the employer refuses to pay its monetary equivalent after demand of commutation or upon termination of the employee’s services, as the case may be. Sentinel Security Agency Inc. v. NLRC, 295 SCRA 123 (1998) Under these cited provisions of the Labor Code should the contractor fail to pay the wages of its employees in accordance with law, the indirect employer (the petitioner in this case), is jointly and severally liable with the contractor, but such responsibility should be understood to be limited to the extent of the work performed under the contract, in the same manner and extent that he is liable to the employees directly employed by him. This liability of petitioner covers the payment of the workers' performance of any work, task, job or project. So long as the work, task, job or project has been performed for petitioner's benefit or on its behalf, the liability accrues for such period even if, later on, the employees are eventually transferred or reassigned elsewhere. B. PATERNITY LEAVE Paternity Leave Act of 1996 (RA 8187 and IRR)
NOTES
3. 4.
He has applied for paternity leave. His wife has given birth or suffered miscarriage.
Application for Leave: 1. Within a reasonable time form the expected date of delivery by the pregnant spouse, OR 2. Within such period as may be provided by company rules and regulations or by CBA 3. Prior application for leave shall NOT be required for miscarriages. Availment: AFTER the delivery by his wife, without prejudice to an employer allowing an amployee to avail of the benefit before or during delivery—total number of days shall not exceed 7 days for each delivery. Benefits: Full pay—Basic Salary for 7 days during which he is allowed not to report for work—Not less than the mandated minimum wage. Note: “7 days” is NOT 7 working days. Unavailed paternity leave is NOT commutable. C. MATERNITY LEAVE SEC. 14-A, RA 8282 Maternity Leave Benefit. - A female member who has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarian delivery, subject to the following conditions: "(a) That the employee shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide;
Notes: • 7 days with full pay to all married male employees in the private and public sectors • Available only for the first 4 deliveries of the legitimate spouse with whom the husband is cohabiting—husband and wife must be living together • “Delivery” includes childbirth, miscarriage, abortion. • Purpose: To enable the husband to lend support to his wife during the period of recovery and/or in the nursing of the newly born child.
"(b) The full payment shall be advanced by the employer within thirty (30) days from the filing of the maternity leave application;
Conditions to Entitlement of Paternity Leave Benefits: 1. He is an employee at the time of delivery of his child. 2. He is cohabiting with his spouse at the time she gives birth or suffers a miscarriage.
"(e) That the SSS shall immediately reimburse the employer of one hundred percent (100%) of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof; and
NIKKI HIPOLITO
"(c) That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided by this Act for the same period for which daily maternity benefits have been received; "(d) That the maternity benefits provided under this section shall be paid only for the first four (4) deliveries or miscarriages;
90
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
"(f) That if an employee member should give birth or suffer miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to. Notes: • Female Employee • Regardless if married or unmarried • Paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth/miscarriage • Paid daily maternity benefit = 100% of average salary credit for o 60 days: Normal Delivery o 78 days: Caesarian Delivery Conditions: • Notified employer of pregnancy and probable date of childbirth— transmitted to SSS • Full payment advanced by employer within 30 days from filing of maternity leave application • Payment of daily maternity benefits = bar to recovery of sickness benefits during the same period • Maternity benefits = 1st 4 deliveries • SSS immediately reimburse employer upon receipt of satisfactory proof of such payment, if: o Without required contributions having been remitted for her by her employer to SSS o Without SSS having previously notified by employer of time of pregnancy o …employer will pay damages to SSS equivalent to benefits which the employee member would otherwise have been entitled to. D. VACATION AND SICK LEAVE Notes: • Vacation and sick leaves are VOLUNTARY • Only government employees are entitled to vacation and sick leaves. • For private sector, it should be negotiated by the employees to the employer. • The payment of vacation and sick leaves is governed by the employer’s policy or agreement between it and the employee.
NOTES
•
• •
• •
Intended to be replacements for regular income, which would otherwise not be earned because an employee is not working during the period of said leaves Non-contributory in nature, in the sense that the employees contribute nothing to the operation of the benefits Purpose: To afford a laborer a chance to get a much needed rest to replenish his worn out energies and acquire a new vitality to enable him to efficiently perform his duties and not merely to give him additional salary or bounty Must be demanded in its opportune time (waived if employee allows years to go by in silence) Employer may impose certain conditions in the administration of the leave privileges of employees o Examples: Maximum of 6 months—accumulation Sick leave is not commutable or payable in cash
Commutation of Sick Leave: • May be had if under the circumstances, this has ripened into company practice or policy, which cannot be peremptorily withdrawn • Rationale: To encourage workers to work continuously and with dedication for the company; to lure employees to stay in the company. • Basis for computation: on the last prevailing salary received by the employee Cases McLeod v. NLRC, 512 SCRA 222 (2007) McLeod is not entitled to payment of vacation leave and sick leave as well as to holiday pay. Article 82, Title I, Book Three of the Labor Code, on Working Conditions and Rest Periods, provides: Coverage. ─ The provisions of this title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. As used herein, "managerial employees" refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. (Emphasis supplied) As Vice President/Plant Manager, McLeod is a managerial employee who is excluded from the coverage of Title I, Book Three of the Labor Code.
NIKKI HIPOLITO
91
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
McLeod is entitled to payment of vacation leave and sick leave only if he and PMI had agreed on it. The payment of vacation leave and sick leave depends on the policy of the employer or the agreement between the employer and employee. In the present case, there is no showing that McLeod and PMI had an agreement concerning payment of these benefits. E. PARENTAL (SOLO PARENT) LEAVE RA 8972—Act Providing for Benefits…To Solo Parents SEC. 2: Declaration of Policy. - It is the policy of the State to promote the family as the foundation of the nation, strengthen its solidarity and ensure its total development. Towards this end, it shall develop a comprehensive program of services for solo parents and their children to be carried out by the Department of Social Welfare and Development (DSWD), the Department of Health (DOH), the Department of Education, Culture and Sports (DECS), the Department of the Interior and Local Government (DILG), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the National Housing Authority (NHA), the Department of Labor and Employment (DOLE) and other related government and nongovernment agencies.
NOTES
SECTION 9. WAGES A. WAGES—IN GENERAL Wages (wagen): applies to compensation for manual labor, skilled or unskilled, paid at stated times, and measured by the day, week, month or season Indicates inconsiderable pay for a lower and less responsible character of employment Ordinarily restricted to sums paid as hire or reward to domestic or menial servants and to sums paid to artisans, mechanics, laborers and other employees of like class Salary (solarium): denotes a higher degree of employment or a superior grade of services and implies a position or office Suggestive of a larger and more permanent or fixed compensation for more important service SC: Wages and Salaries are SYNONYMOUS A reward or recompense for services performed “Pay” is synonymous with “wages” and “salaries”
SEC. 6: Flexible Work Schedule. - The employer shall provide for a flexible working schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds.
* Wages includes: o Sales Commissions o Facilities or Commodities—food and housing, etc… * Wages excludes: o Allowances
SEC. 8: Parental Leave. - In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year.
9.01 Coverage SEC. 97 (B): “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the Government and all its branches, subdivision and instrumentalities, all GOCCs and institutions, as well as non-profit private institutions or organizations.
Notes: • Not more than 7 days every year (1 day leave is legal compliance) • Non-cumulative • In addition to the legally mandated leaves—SIL, SSS sick leave, SSS maternity leave and paternity leave under RA 8187 Conditions: • Rendered at least 1 year of service • Notified employer within reasonable period • Presented Solo Parent ID Card Other • • •
Benefits: Educational benefits Flexi-work schedule Housing benefits
NIKKI HIPOLITO
SEC. 97 (C): “Employee” includes any individual employed by an employee. SEC. 97 (E): “Employ” includes to suffer or permit to work. SEC. 98: This Title shall NOT apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law. • EXCEPTIONS to Minimum Wage Rule: o Household or domestic helpers (including family drivers and persons in the personal service of another)
92
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
o o
o o
Homeworkers engaged in the needle-work Workers employed in any establishment duly registered with National Cottage Industries and Development Authority in accordance with RA 3470 provided that such workers perform the work in their respective homes Workers in any duly registered cooperative Barangay Micro Business Enterprises (BMBEs)
Government Agency Cases Philippine Fisheries Development Authority v NLRC, 213 SCRA 621 (1992) Notwithstanding that the petitioner is a government agency, its liabilities, which are joint and solidary with that of the contractor, are provided in Articles 106, 107 and 109 of the Labor Code. This places the petitioner's liabilities under the scope of the NLRC. Moreover, Book Three, Title II on Wages specifically provides that the term "employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the Government and all its branches, subdivisions and instrumentalities, all governmentowned or controlled corporation and institutions as well as non-profit private institutions, or organizations (Art. 97 [b], Labor Code; Eagle Security Agency, Inc. v. NLRC, 173 SCRA 479 [1989]; Rabago v. NLRC, 200 SCRA 158 [1991]). The NLRC, therefore, did not commit grave abuse of discretion in assuming jurisdiction to set aside the Order of dismissal by the Labor Arbiter. 9.02 Wage SEC. 97 (F): “Wage” paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee. “Fair and reasonable value” shall not include any profit to the employer or to any person affiliated with the employer. ART. XIII, Constitution Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be NIKKI HIPOLITO
NOTES
entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Defined Cases Chavez v NLRC, 448 SCRA 478 (2005) Wages are defined as “remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for service rendered or to be rendered.” That the petitioner was paid on a per trip basis is not significant. This is merely a method of computing compensation and not a basis for determining the existence or absence of employer-employee relationship. One may be paid on the basis of results or time expended on the work, and may or may not acquire an employment status, depending on whether the elements of an employer-employee relationship are present or not. In this case, it cannot be gainsaid that the petitioner received compensation from the respondent company for the services that he rendered to the latter. Mayon Hotel and Restaurants v Adana, 458 SCRA 609 (2005) The cost of meals and snacks purportedly provided to respondents cannot be deducted as part of respondents' minimum wage. As stated in the Labor Arbiter's decision: While [petitioners] submitted Facility Evaluation Orders (pp. 468, 469; vol. II, rollo) issued by the DOLE Regional Office whereby the cost of meals given by [petitioners] to [respondents] were specified for purposes of considering the same as part of their wages, We cannot consider the cost of meals in the Orders as applicable to [respondents]. [Respondents] were not interviewed by the DOLE as to the quality and quantity of food appearing in the applications of [petitioners] for facility evaluation prior to its approval to determine whether or not [respondents] were indeed given such kind and quantity of food. Also, there was no evidence that the quality and
93
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
quantity of food in the Orders were voluntarily accepted by [respondents]. On the contrary; while some [of the respondents] admitted that they were given meals and merienda, the quality of food serve[d] to them were not what were provided for in the Orders and that it was only when they filed these cases that they came to know about said Facility Evaluation Orders (pp. 100; 379[,] vol. II, rollo; p. 40, tsn[,] June 19, 1998). [Petitioner] Josefa herself, who applied for evaluation of the facility (food) given to [respondents], testified that she did not inform [respondents] concerning said Facility Evaluation Orders (p. 34, tsn[,] August 13, 1998). Even granting that meals and snacks were provided and indeed constituted facilities, such facilities could not be deducted without compliance with certain legal requirements. As stated in Mabeza v. NLRC, the employer simply cannot deduct the value from the employee's wages without satisfying the following: (a) proof that such facilities are customarily furnished by the trade; (b) the provision of deductible facilities is voluntarily accepted in writing by the employee; and (c) the facilities are charged at fair and reasonable value. The records are clear that petitioners failed to comply with these requirements. There was no proof of respondents' written authorization. Indeed, the Labor Arbiter found that while the respondents admitted that they were given meals and merienda, the quality of food served to them was not what was provided for in the Facility Evaluation Orders and it was only when they filed the cases that they came to know of this supposed Facility Evaluation Orders. Petitioner Josefa Po Lam herself admitted that she did not inform the respondents of the facilities she had applied for. Considering the failure to comply with the above-mentioned legal requirements, the Labor Arbiter therefore erred when he ruled that the cost of the meals actually provided to respondents should be deducted as part of their salaries, on the ground that respondents have availed themselves of the food given by petitioners. The law is clear that mere availment is not sufficient to allow deductions from employees' wages. Fair Day Pay Employee performs no work NO WAGE OR PAY UNLESS, laborer is able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed Cases Aklan Electric Cooperative, Inc. v NLRC, 323 SCRA 258 (2000) The age-old rule governing the relation between labor and capital, or management and employee of a "fair day's wage for a fair day's labor" NIKKI HIPOLITO
NOTES
remains as the basic factor in determining employees' wages. 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, a situation which we find is not present in the instant case. It would neither be fair nor just to allow private respondents to recover something they have not earned and could not have earned because they did not render services at the Kalibo office during the stated period. Discrimination EQUAL PAY FOR EQUAL WORK Employees working in the Philippines, performing similar functions and responsibilities under similar working conditions, should be paid under this principle. Cases International School Alliance of Educators v Quisumbing, 333 SCRA 13 (2000) The International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof, provides: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: a.....Remuneration which provides all workers, as a minimum, with: 1. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School, its "international character" notwithstanding. Philex Gold Phils. Inc v Philex Bulawan Supervisors Union, 468 SCRA 111 (2005) The long honored legal truism of “equal pay for equal work,” meaning, “persons who work with substantially equal qualification, skill, effort and responsibility, under similar conditions, should be paid similar salaries,” has been institutionalized in our jurisdiction. Such that “if an employer accords employees the same position and rank, the presumption is that these employees perform equal work” as “borne by logic and human experience.” The ramification is that “(i)f the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more. That would be adding
94
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
insult to injury. The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly.”
every dispute should be decided in favor of labor, for employers correspondingly have rights under the law which need to be respected.
Bankard Employers Union v NLRC, 423 SCRA 148 (2004) Wage distortion is a factual and economic condition that may be brought about by different causes. In Metro Transit, the reduction or elimination of the normal differential between the wage rates of rank-and-file and those of supervisory employees was due to the granting to the former of wage increase which was, however, denied to the latter group of employees.
Facilities and Supplements Facilities: include articles or services for the benefit of the employee or his family but shall NOT include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employer’s business Wage-deductible
The mere factual existence of wage distortion does not, however, ipso facto result to an obligation to rectify it, absent a law or other source of obligation which requires its rectification. Unlike in Metro Transit then where there existed a "company practice," no such management practice is herein alleged to obligate Bankard to provide an across-the-board increase to all its regular employees. Bankard’s right to increase its hiring rate, to establish minimum salaries for specific jobs, and to adjust the rates of employees affected thereby is embodied under Section 2, Article V (Salary and Cost of Living Allowance) of the parties’ Collective Bargaining Agreement (CBA), to wit: Section 2. Any salary increase granted under this Article shall be without prejudice to the right of the Company to establish such minimum salaries as it may hereafter find appropriate for specific jobs, and to adjust the rates of the employees thereby affected to such minimum salaries thus established. This CBA provision, which is based on legitimate business-judgment prerogatives of the employer, is a valid and legally enforceable source of rights between the parties. In fine, absent any indication that the voluntary increase of salary rates by an employer was done arbitrarily and illegally for the purpose of circumventing the laws or was devoid of any legitimate purpose other than to discriminate against the regular employees, this Court will not step in to interfere with this management prerogative. Employees are of course not precluded from negotiating with its employer and lobby for wage increases through appropriate channels, such as through a CBA. This Court, time and again, has shown concern and compassion to the plight of workers in adherence to the Constitutional provisions on social justice and has always upheld the right of workers to press for better terms and conditions of employment. It does not mean, however, that NIKKI HIPOLITO
Supplements: benefit or privilege given to the employee which constitutes an extra remuneration above and over his basic or ordinary earning or wage NOT wage-deductible Distinction between the two lies not so much on the kind, but on the PURPOSE. DOLE Order No. 4 (1988)—Valuation of Meals and Other Facilities "Supplements" constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages. "Facilities" are items of expense necessary for the laborer's and his family's existence and subsistence so that by express provision of law (Sec. 2[g]), 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. 3 Requirements before value of facility may be deducted 1. Proof must be shown that such facilities are customarily furnished by the trade. 2. Provision of deductible facilities must be voluntarily accepted in writing by the employee. 3. Facilities must be charged at fair and reasonable value. Cases States Marine Corporation v. Cebu Seamen’s Association, Inc., 7 SCRA 294 (1963) In short, the benefit or privilege given to the employee which constitutes an extra remuneration above and over his basic or ordinary earning or wage, is supplement; and when said benefit or privilege is part of the laborers' basic wages, it is a facility. The criterion is not so much with the kind of the benefit or item (food, lodging, bonus or sick leave) given, but its purpose. Considering, therefore, as definitely found by the respondent court that the meals were freely given to crew members prior to August 4, 1951, while they were on the high seas "not
95
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
as part of their wages but as a necessary matter in the maintenance of the health and efficiency of the crew personnel during the voyage", the deductions therein made for the meals given after August 4, 1951, should be returned to them, and the operator of the coastwise vessels affected should continue giving the same benefit.. Millares v. NLRC, 305 SCRA 500 (1999) When an employer customarily furnishes his employee board, lodging or other facilities, the fair and reasonable value thereof, as determined by the Secretary of Labor and Employment, is included in "wage." In order to ascertain whether the subject allowances form part of petitioner's "wages," we divide the discussion on the following — "customarily furnished;" "board, lodging or other facilities;" and, "fair reasonable value as determined by the Secretary of Labor." "Customary" is founded on long-established and constant practice connoting regularity. The receipt of an allowance on a monthly basis does not ipso facto characterize it as regular and forming part of salary because the nature of the grant is a factor worth considering. We agree with the observation of the Office of the Solicitor General that the subject allowances were temporarily, not regularly, received by petitioners because — In the case of the housing allowance, once a vacancy occurs in the company-provided housing accommodations, the employee concerned transfers to the company premises and his housing allowance is discontinued . . . . On the other hand, the transportation allowance is in the form of advances for actual transportation expenses subject to liquidation . . . given only to employees who have personal cars. The Bislig allowance is given to Division Managers and corporate officers assigned in Bislig, Surigao del Norte. Once the officer is transferred outside Bislig, the allowance stops. We add that in the availment of the transportation allowance, respondent PICOP set another requirement that the personal cars be used by the employees in the performance of their duties. When the conditions for availment ceased to exist, the allowance reached the cutoff point. The finding of the NLRC along the same line likewise merits concurrence, i.e., petitioners' continuous enjoyment of the disputed allowances was based on contingencies the occurrence of which wrote finis to such enjoyment. Although it is quite easy to comprehend "board" and "lodging," it is not so with "facilities." Thus Sec. 5, Rule VII, Book III, of the Rules Implementing the Labor Code gives meaning to the term as including articles or services for the benefit of the employee or his family but NIKKI HIPOLITO
NOTES
excluding tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employer's business. The Staff/Manager's allowance may fall under "lodging" but the transportation and Bislig allowances are not embraced in "facilities" on the main consideration that they are granted as well as the Staff/Manager's allowance for respondent PICOP's benefit and convenience, i.e., to insure that petitioners render quality performance. In determining whether a privilege is a facility, the criterion is not so much its kind but its purpose. 17 That the assailed allowances were for the benefit and convenience of respondent company was supported by the circumstance that they were not subjected to withholding tax. Tips Where a restaurant or similar establishment does not collect service charges but has a practice or policy of monitoring and pooling tips given voluntarily by its customers to its employees, the pooled tips should be monitored, accounted for and distributed in the same manner as the service charges. Cases Ace Navigation Co. Inc. v. CA, 338 SCRA 70 (2000) The word [“tip”] has several meanings, with origins more or less obscure, connected with "tap" and with "top." In the sense of a sum of money given for good service, other languages are more specific, e.g., Fr. pourboire, for drink. It is suggested that [the word] is formed from the practice, in early 18th c. London coffeehouses, of having a box in which persons in a hurry would drop a small coin, to gain immediate attention. The box was labelled To Insure Promptness; then just with the initials T.I.P. It is more frequently used to indicate additional compensation, and in this sense "tip" is defined as meaning a gratuity; a gift; a present; a fee; money given, as to a servant to secure better or more prompt service. A tip may range from pure gift out of benevolence or friendship, to a compensation for a service measured by its supposed value but not fixed by an agreement, although usually the word is applied to what is paid to a servant in addition to the regular compensation for his service in order to secure better service or in recognition of it. It has been said that a tip denotes a voluntary act, but it also has been said that from the very beginning of the practice of tipping it was evident that, whether considered from the standpoint of the giver or the recipient, a tip lacked the essential element of a gift, namely, the free bestowing of a gratuity without a consideration, and that, despite its apparent voluntariness, there is an element of compulsion in tipping. Tipping is done to get the attention and secure the immediate services of a waiter, porter or others for their services. Since a tip is considered a
96
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
pure gift out of benevolence or friendship, it cannot be demanded from the customer. Whether or not tips will be given is dependent on the will and generosity of the giver. Although a customer may give a tip as a consideration for services rendered, its value still depends on the giver. They are given in addition to the compensation by the employer. A gratuity given by an employer in order to inspire the employee to exert more effort in his work is more appropriately called a bonus. The actuations of Orlando during his employment also show that he was aware his monthly salary is only US$450.00, no more no less. He did not raise any complaint about the non-payment of his tips during the entire duration of his employment. After the expiration of his contract, he demanded payment only of his vacation leave pay. He did not immediately seek the payment of tips. He only asked for the payment of tips when he filed this case before the labor arbiter. This shows that the alleged non-payment of tips was a mere afterthought to bloat up his claim. The records of the case do not show that Orlando was deprived of any monthly salary. It will now be unjust to impose a burden on the employer who performed the contract in good faith. Cash Wage/Commissions Cases Iran v. NLRC, 289 SCRA 433 (1998) Art. 97(f) — "Wage" paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee. This definition explicitly includes commissions as part of wages. While commissions are, indeed, incentives or forms of encouragement to inspire employees to put a little more industry on the jobs particularly assigned to them, still these commissions are direct remunerations for services rendered. In fact, commissions have been defined as the recompense, compensation or reward of an agent, salesman, executor, trustee, receiver, factor, broker or bailee, when the same is calculated as a percentage on the amount of his transactions or on the profit to the principal. The nature of the work of a salesman and the reason for such type of remuneration for services rendered demonstrate clearly that commissions are part of a salesman's wage or salary.
NIKKI HIPOLITO
NOTES
Songco v. NLRC, 183 SCRA 610 (1990) Article 97(f) by itself is explicit that commission is included in the definition of the term "wage". It has been repeatedly declared by the courts that where the law speaks in clear and categorical language, there is no room for interpretation or construction; there is only room for application. Wages and Salary Cases Equitable Banking Corp. v. Sadac, 490 SCRA 380 (2006) Broadly, the word "salary" means a recompense or consideration made to a person for his pains or industry in another man’s business. Whether it be derived from "salarium," or more fancifully from "sal," the pay of the Roman soldier, it carries with it the fundamental idea of compensation for services rendered. Indeed, there is eminent authority for holding that the words "wages" and "salary" are in essence synonymous. "Salary," the etymology of which is the Latin word "salarium," is often used interchangeably with "wage", the etymology of which is the Middle English word "wagen". Both words generally refer to one and the same meaning, that is, a reward or recompense for services performed. Likewise, "pay" is the synonym of "wages" and "salary" Gaa v. CA, 140 SCRA 304 (1985) Article 1708 used the word "wages" and not "salary" in relation to "laborer" when it declared what are to be exempted from attachment and execution. The term "wages" as distinguished from "salary", applies to the compensation for manual labor, skilled or unskilled, paid at stated times, and measured by the day, week, month, or season, while "salary" denotes a higher degree of employment, or a superior grade of services, and implies a position of office: by contrast, the term wages " indicates considerable pay for a lower and less responsible character of employment, while "salary" is suggestive of a larger and more important service (35 Am. Jur. 496). The distinction between wages and salary was adverted to in Bell vs. Indian Livestock Co. (Tex. Sup.), 11 S.W. 344, wherein it was said: "'Wages' are the compensation given to a hired person for service, and the same is true of 'salary'. The words seem to be synonymous, convertible terms, though we believe that use and general acceptation have given to the word 'salary' a significance somewhat different from the word 'wages' in this: that the former is understood to relate to position of office, to be the compensation given for official or other service, as distinguished from 'wages', the compensation for labor." Annotation 102 Am. St. Rep. 81, 95.
97
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
We do not think that the legislature intended the exemption in Article 1708 of the New Civil Code to operate in favor of any but those who are laboring men or women in the sense that their work is manual. Persons belonging to this class usually look to the reward of a day's labor for immediate or present support, and such persons are more in need of the exemption than any others. Petitioner Rosario A. Gaa is definitely not within that class. Gratuity and Wages Gratuity: something given freely, or without recompense; a gift; something voluntarily given in return for a favor or services; a bounty; a tip; that which is paid to the beneficiary for past services rendered purely out of the generosity of the giver or grantor. NOT intended to pay a worker for actual services rendered Money benefit given to the workers whose purpose is to reward employees or laborers who have rendered satisfactory and efficient service to the company NOT mandatory Cases Plastic Town Center Corp. v. NLRC, 172 SCRA 580 (1989) Looking into the definition of gratuity, we find the following in Moreno's Philippine Law Dictionary, to wit: Something given freely, or without recompense; a gift; something voluntarily given in return for a favor or services; a bounty; a tip. Pirovano v. De la Rama Steamship Co., 96 Phil. 357. That paid to the beneficiary for past services rendered purely out of the generosity of the giver or grantor.-Peralta v. Auditor General, 100 Phil. 1054. Salary or compensation. The very term 'gratuity' differs from the words 'salary' or 'compensation' in leaving the amount thereof, within the limits of reason, to the arvitrament of the giver.-Herranz & Garriz v. Barbudo, 12 Phil. 9. From the foregoing, gratuity pay is therefore, not intended to pay a worker for actual services rendered. It is a money benefit given to the workers whose purpose is "to reward employees or laborers, who have rendered satisfactory and efficient service to the company." (Sec. 2, CBA) While it may be enforced once it forms part of a contractual undertaking, the grant of such benefit is not mandatory so as to be considered a part of labor standard law unlike the salary, cost of living allowances, holiday pay, leave benefits, etc., which are covered by the Labor Code.
NIKKI HIPOLITO
NOTES
13th Month Pay Cases Agabon v. NLRC, 442 SCRA 573 (2004) The evident intention of Presidential Decree No. 851 is to grant an additional income in the form of the 13th month pay to employees not already receiving the same so as "to further protect the level of real wages from the ravages of world-wide inflation." Clearly, as additional income, the 13th month pay is included in the definition of wage under Article 97(f) of the Labor Code, to wit: (f) "Wage" paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee…" from which an employer is prohibited under Article 113 of the same Code from making any deductions without the employee's knowledge and consent. In the instant case, private respondent failed to show that the deduction of the SSS loan and the value of the shoes from petitioner Virgilio Agabon's 13th month pay was authorized by the latter. The lack of authority to deduct is further bolstered by the fact that petitioner Virgilio Agabon included the same as one of his money claims against private respondent. B. PAYMENT OF WAGES 9.03 Form • •
Proof of Wage Payment Burden to prove payment is on the employer, when the employee alleges non-payment of wages IRR requires that every employer to keep a PAYROLL showing the length of time to be paid, the pay rate, the amount actually paid etc; employee should sign the payroll.
SEC. 102: No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of the effectivity of this Code, or is necessary because of special circumstances as specified in
98
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
appropriate regulations to be issued by the Secretary of Labor or as stipulated in a collective bargaining agreement. Full Payment Cases Lopez Sugar Corp v Franco, 458 SCRA 515 (2005) In Asian Alcohol Corporation v. National Labor Relations Commission, the Court ruled that redundancy exists when the service capability of the work force is in excess of what is reasonably needed to meet the demands on the enterprise. The Court proceeded to expound, as follows: A redundant position is one rendered superfluous by any number of factors, such as over-hiring of workers, decreased volume of business, dropping of a particular product line previously manufactured by the company or phasing out of a service activity priorly undertaken by the business. Under these conditions, the employer has no legal obligation to keep in its payroll more employees than are necessary for the operation of its business. Contrary to the petitioner’s claim, the employer must comply with the following requisites to ensure the validity of the implementation of a redundancy program: (1) a written notice served on both the employees and the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher; (3) good faith in abolishing the redundant positions; and (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. G&M (Phil.) Inc. v Batomalaque, 461 SCRA 111 (2005) Well-settled is the rule that in cases of non-payment and underpayment of salaries and wages, the employer has the burden of proof to show that the worker/employee has been paid all his salaries and wages since it has in its possession the proof of payment such as payrolls and/or vouchers (Sambalonay vs. Jose Cuevas, NLRC No. RB IV – 186447, February 13, 1980) and in the absence of proof to the contrary, it is deemed that no payment has been made. On repeated occasions, this Court ruled that the debtor has the burden of showing with legal certainty that the obligation has been discharged by payment. To discharge means to extinguish an obligation, and in contract law discharge occurs either when the parties have performed their obligations in the contract, or when an event the conduct of the parties, or the operation of law releases the parties from performing. Thus, a party who alleges that an obligation has been extinguished must prove facts or acts giving rise to the extinction. NIKKI HIPOLITO
NOTES
The fact of underpayment does not shift the burden of evidence to the plaintiff-herein respondent because partial payment does not extinguish the obligation. Only when the debtor introduces evidence that the obligation has been extinguished does the burden of evidence shift to the creditor who is then under a duty of producing evidence to show why payment does not extinguish the obligation. P.I. Manufacturing v P.I. Manufacturing etc., 545 SCRA 613 (2008) Contrary to petitioner’s stance, the increase resulting from any wage distortion caused by the implementation of Republic Act 6640 is not waivable. As held in the case of Pure Foods Corporation vs. National Labor Relations Commission, et al.: "Generally, quitclaims by laborers are frowned upon as contrary to public policy and are held to be ineffective to bar recovery for the full measure of the worker’s rights. The reason for the rule is that the employer and the employee do not stand on the same footing." Moreover, Section 8 of the Rules Implementing RA 6640 states: No wage increase shall be credited as compliance with the increase prescribed herein unless expressly provided under valid individual written/collective agreements; and provided further that such wage increase was granted in anticipation of the legislated wage increase under the act. But such increases shall not include anniversary wage increases provided in collective bargaining agreements. Likewise, Article 1419 of the Civil Code mandates that: When the law sets, or authorizes the setting of a minimum wage for laborers, and a contract is agreed upon by which a laborer accepts a lower wage, he shall be entitled to recover the deficiency. Thus, notwithstanding the stipulation provided under Section 2 of the Company and Supervisors and Foremen Contract, we find the members of private respondent union entitled to the increase of their basic pay due to wage distortion by reason of the implementation of RA 6640. Payroll Payment Cases Phil. Global Communications Inc. v De Vera, 459 SCRA 260 (2005) Deeply embedded in our jurisprudence is the rule that courts may not construe a statute that is free from doubt. Where the law is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed. As it is, Article 157 of the Labor Code clearly and unequivocally allows employers in non-hazardous establishments to engage “on retained
99
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
basis” the service of a dentist or physician. Nowhere does the law provide that the physician or dentist so engaged thereby becomes a regular employee. The very phrase that they may be engaged “on retained basis”, revolts against the idea that this engagement gives rise to an employer-employee relationship. Chavez v NLRC, 448 SCRA 478 (2005) Moreover, under the Rules Implementing the Labor Code, every employer is required to pay his employees by means of payroll. The payroll should show, among other things, the employee’s rate of pay, deductions made, and the amount actually paid to the employee. Interestingly, the respondents did not present the payroll to support their claim that the petitioner was not their employee, raising speculations whether this omission proves that its presentation would be adverse to their case. Cash Wage Cases Congson v NLRC, 243 SCRA 260 (1995) Undoubtedly, petitioner's practice of paying the private respondents the minimum wage by means of legal tender combined with tuna liver and intestines runs counter to the above-cited provision of the Labor Code. The fact that said method of paying the minimum wage was not only agreed upon by both parties in the employment agreement, but even expressly requested by private respondents, does not shield petitioner. Article 102 of the Labor Code is clear. Wages shall be paid only by means of legal tender. The only instance when an employer is permitted to pay wages informs other than legal tender, that is, by checks or money order, is when the circumstances prescribed in the second paragraph of Article 102 are present.
NOTES
9.04 Time Payment SEC. 103: Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employers control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month. The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award: (1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; (2) That final settlement is made upon completion of the work. 9.05 Place Payment • •
• Payroll Entries Cases Kar Asia Inc v Corono, 437 SCRA 184 (2004) Moreover, the affidavits of Ermina Daray and Cristita Arana, whose verity we find no reason to suspect, confirmed the truthfulness of the entries in the payrolls and affirmed the receipt by the respondents of their full compensation. Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity under Rule 130, Section 43 of the Rules of Court. It is therefore incumbent upon the respondents to adduce clear and convincing evidence in support of their claim. Unfortunately, respondents’ naked assertions without proof in corroboration will not suffice to overcome the disputable presumption.
NIKKI HIPOLITO
General Rule: At or near the place of undertaking Exceptions: o When payment cannot be effected at or near the place of work by reason of the deterioration of peace and order conditions, or by reason of actual or impending emergencies caused by fire, flood, epidemic, or other calamity rendering payment thereat impossible; o When the employer provides free transportation to the employees back and forth; and o Under any analogous circumstances, provided that the time spent by the employees in collecting their wages shall be considered as compensable hours worked. Prohibited Places: o Bar, night or day club, drinking establishment o Massage clinic o Dance hall o Other similar places or in places where games are played with stakes of money or things representing money o EXCEPT: in case of persons employed in said places
SEC. 104: Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages. Labor Advisory Payment of Salary Thru ATM (DOLE 1996) Payment thru ATM is allowed provided the following conditions are met:
100
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
1. 2. 3. 4. 5. 6. 7.
ATM system of payment is with written consent of the employees concerned. Employees are given reasonable time to withdraw their wages from the bank facility, which time, if done during working hours, shall be considered as compensable hours worked. System shall allow workers to receive their wages within the period or frequency and in the amount prescribed under the Labor Code. Bank or ATM facility is within a radius of 1 km to the place of work. Upon request of the concerned employee/s, employer shall issue a record of payment of wages, benefits and deductions for particular period. There shall be no additional expenses and no diminution of benefits and privileges as a result of the ATM system of payment. Employer shall assume responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement.
9.06 Direct Payment SEC. 105: Wages shall be paid directly to the workers to whom they are due, except: (a) In cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary of Labor and Employment in appropriate regulations, in which case, the worker may be paid through another person under written authority given by the worker for the purpose; or (b) Where the worker has died, in which case, the employer may pay the wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings. The claimants, if they are all of age, shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be executed on his behalf by his natural guardian or next-of-kin. The affidavit shall be presented to the employer who shall make payment through the Secretary of Labor and Employment or his representative. The representative of the Secretary of Labor and Employment shall act as referee in dividing the amount paid among the heirs. The payment of wages under this Article shall absolve the employer of any further liability with respect to the amount paid. 9.07 Contractor—Sub Contractor •
When a contractor fails to pay wages of his employees, the employer who contracted out the job becomes JOINTLY and SEVERALLY LIABLE with the contractor to the extent of the worked
NIKKI HIPOLITO
NOTES
•
• •
performed under the contract, as if such employer were the employer of the contractor’s employees. Indirect employer cannot escape liability even if it had paid the workers’ wage rates in accordance with the stipulations in the contract with the contractor or agency. The employees are not privy to the contract. Sec. 106-109 were enacted to alleviate the plight of workers whose wages barely meet the spiraling costs of their basic needs. Legislated wage increases are deemed amendments to the contract. Employers cannot hide behind their contracts in order to evade their or their contractors’ or subcontractors’ liability for noncompliance with the statutory minimum wage.
SEC. 106: Whenever an employer enters into a contract with another person for the performance of the formers work, the employees of the contractor and of the latter subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code. There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. SEC. 107: The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation
101
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. SEC. 108: An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. SEC. 109: The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers. C. PROHIBITION REGARDING WAGES •
Civil Code Provisions o Wages to be paid in legal tender (Art. 1705) o No withholding of wages, except for a debt due (Art. 1706) o Wages to be lien on the goods manufactured or the work done (Art. 1707) o Wages not subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance (Art. 1708) o Laborer’s tools and other articles not to be seized by the employer (Art. 1709)
9.08 Non-Interference—Disposal Wages SEC. 112: No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person, or otherwise make use of any store or services of such employer or any other person. 9.09 Wage Deduction • Allowed Deductions o For value of meals and other facilities o Premiums on insurance paid by employer, for the benefit of and with consent of the employee o When right of employees or union to check-off has been recognized by the employer or authorized in writing by the individual employee concerned o When employee is indebted to employer, such indebtedness is due and demandable NIKKI HIPOLITO
In court awards execution or attachment is allowed only for debts incurred for food, shelter, clothing or medical attendance o Withholding taxes o Salary deductions of a member of a legally established cooperative o SSS, Medicare and Pag-Ibig Contributions Payment to Third Persons Deductible if it is authorized in writing by the employee; employer may agree to the deduction, but not obliged to do so Written Authorization as a pre-requisite to deductions to protect the employee against unwarranted practices that would diminish his compensation without his knowledge and consent o
•
•
SEC. 113: No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; (b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and (c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment. SEC. 117: It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment. Wage Deduction Cases Radio Communications of the Philippines, Inc. v Secretary of Labor, 169 SCRA 38 (1989) Service fee collected by the Union does not run counter to the express mandate of the law since the same are not unwarranted. Also, the deductions for the union service fee are authorized by law and do not require individual check-off authorizations. Apodaca v NLRC, 172 SCRA 442 (1989) What the records show is that the respondent corporation deducted the amount due to petitioner from the amount receivable from him for the unpaid subscriptions. No doubt such set-off was without lawful basis, if not premature. As there was no notice or call for the payment of unpaid subscriptions, the same is not yet due and payable. Lastly, assuming further that there was a call for payment of the unpaid subscription, the NLRC cannot validly set it off against the wages and
102
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
other benefits due petitioner. Article 113 of the Labor Code allows such a deduction from the wages of the employees by the employer, only in three instances, to wit: ART. 113. Wage Deduction. — No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; (b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and (c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor. Check-Off SEC. 113 (B): For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; Cases Manila Trading and Supply Co. v Manila Trading Labor Association, 93 Phil. 288 (1953) When in case of strikes, and according to the CIR even if the strike is legal, strikers may not collect their wages during the days they did not go to work, for the same reasons if not more, laborers who voluntarily absent themselves from work to attend the hearing of a case in which they seek to prove and establish their demands against the company, the legality and propriety of which demands is not yet known, should lose their pay during the period of such absence from work. The age-old rule governing the relation between labor and capital or management and employee is that of a "fair day's wage for a fair day's labor." 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, dismissed or suspended. it is hardly fair or just for an employee or laborer to fight or litigate against his employer on the employer's time. In a case where a laborer absents himself from work because of a strike or to attend a conference or hearing in a case or incident between him and his employer, he might seek reimbursement of his wages from his union, which had declared the strike or filed the case in the industrial court. Or, in the present case, he might have his absence from his work charged against his vacation leave. Three of the Justices who sign the NIKKI HIPOLITO
NOTES
present decision believe that the deductions made from the wage of Armando Ocampo and Protacio Ty might possibly be charge as damages in the case in the event that the said case in CIR prosecuted in behalf of their union is finally decided in their favor and against the company. 9.10 Deposit •
•
4 Conditions for Payments for Lost or Damages Equipment may be Deductible from Employee’s Salary: o Employee is clearly shown to be responsible for the loss or damage o Employee is given ample opportunity to show cause why deduction should not be made o Amount of the deduction is fair and reasonable and shall not exceed the actual loss or damage o Deduction from the employee’s wage does not exceed 20% of the employee’s wages in a week Deductions for unpaid absences are allowed
SEC. 114: No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations. SEC. 115: No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless the employee has been heard thereon, and his responsibility has been clearly shown. Cases Five J Taxi v NLRC, 235 SCRA 556 (1994) Respondent NLRC held that the P15.00 daily deposits made by respondents to defray any shortage in their "boundary" is covered by the general prohibition in Article 114 of the Labor Code against requiring employees to make deposits, and that there is no showing that the Secretary of Labor has recognized the same as a "practice" in the taxi industry. Consequently, the deposits made were illegal and the respondents must be refunded therefor. Article 114 of the Labor Code provides as follows: Art. 114. Deposits for loss or damage. — No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer, except when the employer is
103
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
engaged in such trades, occupations or business where the practice of making deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor in appropriate rules and regulations. It can be deduced therefrom that the said article provides the rule on deposits for loss or damage to tools, materials or equipments supplied by the employer. Clearly, the same does not apply to or permit deposits to defray any deficiency which the taxi driver may incur in the remittance of his "boundary." Also, when private respondents stopped working for petitioners, the alleged purpose for which petitioners required such unauthorized deposits no longer existed. In other case, any balance due to private respondents after proper accounting must be returned to them with legal interest. Consequently, private respondents are not entitled to the refund of the P20.00 car wash payments they made. It will be noted that there was nothing to prevent private respondents from cleaning the taxi units themselves, if they wanted to save their P20.00. Also, as the Solicitor General correctly noted, car washing after a tour of duty is a practice in the taxi industry, and is, in fact, dictated by fair play. Dentech Manufacturing Corp. v NLRC, 172 SCRA 588 (1989) The refund of the cash bond filed by the private respondents is in order. Article 114 of the Labor Code prohibits an employer from requiting his employees to file a cash bond or to make deposits, subject to certain exceptions, to witArt. 114. Deposits for loss or damage.- No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor in appropriate rules and regulations.
NOTES
9.11 Withholding of Wages; Record Keeping SEC. 116: It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent. SEC. 119: It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respect. Garnishment/Attachment Cases Special Steel Corp. v Villareal, 434 SCRA 19 (2004) Indeed, petitioner has no legal authority to withhold respondents’ 13th month pay and other benefits. What an employee has worked for, his employer must pay. Thus, an employer cannot simply refuse to pay the wages or benefits of its employee because he has either defaulted in paying a loan guaranteed by his employer; or violated their memorandum of agreement; or failed to render an accounting of his employer’s property.
The petitioners have not satisfactorily disputed the applicability of this provision of the Labor Code to the case at bar. Considering further that the petitioners failed to show that the company is authorized by law to require the private respondents to file the cash bond in question, the refund thereof is in order.
Pacific Customs Brokerage Inc v Inter-Island Dockmen and Labor Union, 89 Phil. 722 (1951) "Laborers' wages shall not to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance". Petitioner does not dispute that the money garnished is intended to pay the wages of the members of the labor union. There is nothing to show that such money was garnished or attached for debts incurred for food, shelter, clothing and medical attendance. The writ of garnishment issued by the court, while it purports to include all moneys and properties belonging to the employing company, cannot, in any manner, touch or affect what said company has in its possession to pay the wages of its laborers pursuant to its contract with them or their labor union without contravening the letter and spirit of said article 1708. When, therefore, the Court of First Instance of Manila issued the oft-mentioned writ of garnishment to be levied upon all moneys and properties of the employing company, its scope and effect could not have been extended to include the money intended to pay the wages of the members of the respondent labor union. It is our considered opinion that the respondent court correctly interpreted the law on the matter.
The allegation of the petitioners to the effect that the proceeds of the cash bond had already been given to a certain carinderia to pay for the accounts of the private respondents therein does not merit serious consideration. As correctly observed by the Solicitor General, no evidence or receipt has been shown to prove such payment.
Gaa v CA, 140 SCRA 304 (1985) It is beyond dispute that petitioner is not an ordinary or rank and file laborer but "a responsibly place employee," of El Grande Hotel, "responsible for planning, directing, controlling, and coordinating the activities of all housekeeping personnel" (p. 95, Rollo) so as to ensure
NIKKI HIPOLITO
104
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
the cleanliness, maintenance and orderliness of all guest rooms, function rooms, public areas, and the surroundings of the hotel. Considering the importance of petitioner's function in El Grande Hotel, it is undeniable that petitioner is occupying a position equivalent to that of a managerial or supervisory position. In its broadest sense, the word "laborer" includes everyone who performs any kind of mental or physical labor, but as commonly and customarily used and understood, it only applies to one engaged in some form of manual or physical labor. That is the sense in which the courts generally apply the term as applied in exemption acts, since persons of that class usually look to the reward of a day's labor for immediate or present support and so are more in need of the exemption than are other. We do not think that the legislature intended the exemption in Article 1708 of the New Civil Code to operate in favor of any but those who are laboring men or women in the sense that their work is manual. Persons belonging to this class usually look to the reward of a day's labor for immediate or present support, and such persons are more in need of the exemption than any others. Petitioner Rosario A. Gaa is definitely not within that class. Record Keeping Cases South Motorist Enterprises v Tosoc, 181 SCRA 386 (1990) It failed to present employment records giving as an excuse that they were sent to the main office in Manila, in violation of Section 11 of Rule X, Book II of the Omnibus Rules Implementing the Labor Code providing that: All employment records of the employees of the employer shall be kept and maintained in or about the premises of the workplace. The premises of a workplace shall be understood to mean the main or branch office or establishment, if any, depending upon where the employees are regularly assigned. The keeping of the employee's records in another place is prohibited. D. OTHER FORMS OF RENUMERATION 9.12 Service Charges SEC. 96: All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of eighty-five percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the employees shall be equally distributed among them. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages. 85% = all covered employees (equally distributed among EEs) NIKKI HIPOLITO
NOTES
15% = management BOOK III, RULE VI, OMNIBUS RULES SECTION 1. Coverage. — This rule shall apply only to establishments collecting service charges such as hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the Government. SECTION 2. Employees covered. — This rule shall apply to all employees of covered employers, regardless of their positions, designations or employment status, and irrespective of the method by which their wages are paid except to managerial employees. As used herein, a "managerial employee" shall mean one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign, or discipline employees or to effectively recommend such managerial actions. All employees not falling within this definition shall be considered rank-and-file employees. SECTION 3. Distribution of service charges. — All service charges collected by covered employers shall be distributed at the rate of 85% for the employees and 15% for the management. The 85% shall be distributed equally among the covered employees. The 15% shall be for the disposition by management to answer for losses and breakages and distribution to managerial employees at the discretion of the management in the latter case. SECTION 4. Frequency of distribution. — The shares referred to herein shall be distributed and paid to the employees not less than once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. SECTION 5. Integration of service charges. — In case the service charges is abolished the share of covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past twelve (12) months immediately preceding the abolition of withdrawal of such charges. SECTION 6. Relation to agreements. — Nothing in this Rule shall prevent the employer and his employees from entering into any agreement with terms more favorable to the employees than those provided herein, or be used to diminish any benefit granted to the employees under existing laws, agreement and voluntary employer practice.
105
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
SECTION 7. This rule shall be without prejudice to existing, future collective bargaining agreements. Nothing in this rule shall be construed to justify the reduction or diminution of any benefit being enjoyed by any employee at the time of effectivity of this rule. Service Charges Cases Maranaw Hotels etc. v NLRC, 303 SCRA 540 (1999) Service charges collected during the period of his preventive suspension forms part of his earnings; the employee is entitled not only to full backwages but also to other benefits, including his just share in the service charges, to be computed from the start of his preventive suspension until his reinstatement. Tips Cases Ace Navigation Co., Inc. v CA, 338 SCRA 70 (2000) Tips denote a voluntary act, however, it has been said that a tip lacked the essential element of a gift—the free bestowing of a gratuity without consideration, and that despite its apparent voluntariness, there is an element of compulsion in tipping. Value depends on the giver, and it is given in addition to the compensation given by the employer—it cannot be demanded. 9.13 Thirteenth Month Pay (PD 851) Section 1. Payment of 13-month Pay All employers covered by Presidential Decree No. 851, hereinafter referred to as the "Decree", shall pay to all their employees receiving a basic salary of not more than P1,000 a month a thirteenth-month pay not later than December 24 of every year. Section 2. Definition of certain terms As used in this issuance. (a) "Thirteenth-moth pay" shall mean one twelfth (1/12) of the basic salary of an employee within a calendar year; (b) "Basic salary" shall include all remunerations or earnings paid by an employer to an employee for services rendered but may not include cost-of-living allowances granted pursuant to Presidential Decree No. 525 or Letter of Instructions No. 174, profit-sharing payments, and all allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary of the employee at the time of the promulgation of the Decree on December 16, 1975. Section 3. Employers covered The Decree shall apply to all employers except to: NIKKI HIPOLITO
NOTES
(a) Distressed employers, such as (1) those which are currently incurring substantial losses or (2) in the case of non-profit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than forty (40%) percent of their normal income for the last two (2) years, subject to the provision of Section 7 of this issuance; (b) The Government and any of its political subdivisions, including government-owned and controlled corporations, except those corporations operating essentially as private subsidiaries of the Government; (c) Employers already paying their employees 13-month pay or more in a calendar year of its equivalent at the time of this issuance; (d) Employers of household helpers and persons in the personal service of another in relation to such workers; and (e) Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned. As used herein, workers paid on piece-rate basis shall refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. The term "its equivalent" as used in paragraph c) hereof shall include Christmas bonus, mid-year bonus, profit-sharing payments and other cash bonuses amounting to not less than 1/12th of the basic salary but shall not include cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee, as well as nonmonetary benefits. Where an employer pays less than 1/12th of the employees basic salary, the employer shall pay the difference. Section 4. Employees covered Except as provided in Section 3 of this issuance, all employees of covered employers shall be entitled to benefit provided under the Decree who are receiving not more than P1,000 a month, regardless of their position, designation or employment status, and irrespective of the method by which their wages are paid, provided that they have worked for at least one month during the calendar year. Section 5. Option of covered employers A covered employer may pay
106
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
one-half of the 13th-month pay required by the Decree before the opening of the regular school year and the other half on or before the 24th day of December of every year. In any establishment where a union has been recognized or certified as the collective bargaining agent of the employees therein, the periodicity or frequency of payment of the 13th month pay may be the subject of agreement. Nothing herein shall prevent employers from giving the benefits provided in the Decree to their employees who are receiving more than One Thousand (P1,000) Pesos a month or benefits higher than those provided by the Decree. Section 6. Special feature of benefit The benefits granted under this issuance shall not be credited as part of the regular wage of the employees for purposes of determining overtime and premium pay, fringe benefits, as well as premium contributions to the State Insurance Fund, social security, medicare and private welfare and retirement plans. Section 7. Exemption of Distressed employers Distressed employers shall qualify for exemption from the requirement of the Decree upon prior authorization by the Secretary of Labor. Petitions for exemptions may be filed within the nearest regional office having jurisdiction over the employer not later than January 15, 1976. The regional offices shall transmit the petitions to the Secretary of Labor within 24 hours from receipt thereof. Section 8. Report of compliance Every covered employer shall make a report of his compliance with the Decree to the nearest regional labor office not later than January 15 of each year. Coverage GENERAL RULE: All employers are required to pay all their rank and file employees a 13th month pay not later than December 24 of every year, provided that they have worked for at least 1 month during the calendar year. EXEMPTED EMPLOYERS: 1. Government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the Government 2. Employers already paying their employees 13th month pay or more in a calendar year or its equivalent at the time of this issuance 3. Employers of household helpers and persons in the personal service of another relation to such workers NIKKI HIPOLITO
NOTES
4.
Employers who are paid on purely commission, boundary or task basis and those who are paid a fixed amount for performing specific work, except where the workers are paid on piece-rate basis in which case the employer shall grant the required 13th month pay to such workers
Minimum Amount = NOT less than 1/12 of the total basic salary earned by an employee within a calendar year for the year 1987 Computation of the 13th month pay shall include the cost of living allowance (COLA) integrated into the basic salary of a covered employee pursuant to EO 178. Cases Petroleum Shipping Ltd. v NLRC, 491 SCRA 35 (2006) PD 851 contemplates the situation of land-based workers, and not of seafarers who generally earn more than domestic land-based workers. Tanchico’s employment is governed by his Contract of Enlistment ("Contract"). The Contract has been approved by the POEA in accordance with Title I, Book One of the Labor Code and the POEA Rules Governing Employment. The coverage of the Contract includes Compensation, Overtime, Sundays and Holidays, Vacations, Living Allowance, Sickness, Injury and Death, Transportation and Travel Expense, Subsistence and Living Quarters. It does not provide for the payment of 13th month pay. The Contract of Employment, which is the standard employment contract of the POEA, likewise does not provide for the payment of 13th month pay. In Coyoca v. NLRC which involves a claim for separation pay, this Court held: Furthermore, petitioner’s contract did not provide for separation benefits. In this connection, it is important to note that neither does POEA standard employment contract for Filipino seamen provide for such benefits. As a Filipino seaman, petitioner is governed by the Rules and Regulations Governing Overseas Employment and the said Rules do not provide for separation or termination pay. x x x Hence, in the absence of any provision in his Contract governing the payment of 13th month pay, Tanchico is not entitled to the benefit. King of Kings Transport Inc v Mamac, 526 SCRA 116 (2007) It was erroneous for the CA to apply the case of Philippine Agricultural Commercial and Industrial Workers Union. Notably in the said case, it was established that the drivers and conductors praying for 13th- month
107
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
pay were not paid purely on commission. Instead, they were receiving a commission in addition to a fixed or guaranteed wage or salary. Thus, the Court held that bus drivers and conductors who are paid a fixed or guaranteed minimum wage in case their commission be less than the statutory minimum, and commissions only in case where they are over and above the statutory minimum, are entitled to a 13thmonth pay equivalent to one-twelfth of their total earnings during the calendar year. On the other hand, in his Complaint, respondent admitted that he was paid on commission only. Moreover, this fact is supported by his pay slips, which indicated the varying amount of commissions he was receiving each trip. Thus, he was excluded from receiving the 13thmonth pay benefit. Ultra Villa Food Haus v Geniston, 309 SCRA 17 (1999) Employing the same line of analysis, it would seem that private respondent is not entitled to13 month pay. The Revised Guidelines on the Implementation of the 13th Month Pay Law also excludes employers of household helpers from the coverage of Presidential Decree No. 851, thus: 2. Exempted Employers: The following employers are still not covered by P.D. No. 851: a. x x x; b. Employers of household helpers x x x; c. x x x, d. x x x. Nevertheless, we deem it just to award private respondent 13th month pay in view of petitioner’s practice of according private respondent such benefit. Indeed, petitioner admitted that she gave private respondent 13th month pay every December. Manner of Wage Payment • Paid NOT later than December 24 of each year • EXCEPT: Employer may give ½ of the required 13th month pay before the opening of the regular school year and the other half on or before the 24th of December every year • The frequency of the payment of this monetary benefit may be the subject of agreement between the employer and the recognized CBA of the employees Cases Jackson Building etc v NLRC, 246 SCRA 329 (1995) Employees are entitled to the 13th month pay regardless of their designation and irrespective of the method by which their wages are paid. NIKKI HIPOLITO
NOTES
Wage Difference Cases JPL Marketing Promotions v CA, 463 SCRA 136 (2005) Difference between minimum wage and the actually salary received by the employee cannot be deemed as his 13th month pay as such difference is NOT equivalent to or of the same import as the said benefit contemplated by law. Househelpers Cases Ultra Villa Food House v Geniston, 309 SCRA 17 (1999) The Revised Guidelines on the Implementation of the 13th Month Pay Law also excludes employers of household helpers from the coverage of PD851. Nevertheless, it would be just to award private respondent 13th month pay in view of the petitioner’s practice of according private respondent such benefit. Indeed, petitioner admitted that she gave private respondent 13th month pay every December.
Government Employees Cases Alliance of Government Workers v NLRC, 124 SCRA 1 (1995) An analysis of the “whereases” of PD851 shows that the President had in mind only workers in private employment when he issued the decree. There was no intention to cover persons working in the government service. Terminated Employees Cases Achilles Manufacturing Corp v NLRC, 244 SCRA 750 (1995) The payment of the 13th month pay may be demanded by the employee upon the cessation of the employer-employee relationship. This is consistent with the principle of equity that as the employer can require the employee to clear himself of all liabilities and property accountability, so can the employee demand the payment of all benefits due him upon the termination of the relationship. RATIONALE—PD 851—WHEREAS CLAUSES AND LIMITATIONS • It is necessary to further protect the level of real wages from the ravage of the world-wide inflation • There has been no increase in the legal minimum wage rate since 1970 • The Christmas season is an opportune time for society to show its concern for the plight of the working masses so they may properly celebrate Christmas and New Year.
108
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Basic Wage/Commissions • Includes all remunerations or earnings paid by the employer for the services rendered • Does NOT include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent of: o Unused vacation and sick leave credits o Overtime o Premium o Night Differential o Holiday Pay o COLA • Salary-related benefits included IF by individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the employees Cases Honda Phil. Inc v Samahan ng Malayang Manggagawa sa Honda, 460 SCRA 186 (2005) ½ of standard monthly wage x length of service = basic salary Iran v NLRC, 289 SCRA 433 (1998) Commissions are considered part of wages. While commissions are, indeed, incentives or forms of encouragement to inspire employees to put a little more industry on the jobs particularly assigned to them, still these commissions are direct remunerations for services rendered. Phil. Duplicators Inc. v NLRC, 241 SCRA 380 (1995) The sales commissions received for every duplicating machine sold is constituted part of the basic compensation or remuneration of the salesmen of Phil. Duplicators for doing their job. The portion of the salary structure representing commissions simply comprised an automatic increment to the monetary value initially assigned to each unit of work rendered by a salesman. The sales commissions were an integral part of the basic salary structure of Phil. Duplicators’ employees salesmen. These commissions are not overtime payments, nor profit-sharing payments nor any other fringe benefit. Thus, the salesmen’s commissions, comprising a predetermined percent of the selling price of the goods sold by each salesman, were properly included in the term “basic salary” for purposes of computing their 13th month pay. Boie Takeda v Dela Serna, 228 SCRA 329 (1993) In remunerative schemes consisting of a fixed or guaranteed wage plus commission, the fixed or guaranteed wage is patently the “basic salary” for this is what the employee receives for a standard work period. Commissions are given for extra efforts exerted in consummating sales
NIKKI HIPOLITO
NOTES
or other related transactions. They are, as such, additional pay which this Court has made clear do not form part of the “basic salary.” Substitute Payment Cases Framanlis Farms, Inc v MOLE, 171 SCRA 87 (1989) Under Sec. 3 of PD 851, such benefits in the form of food or free electricity, assuming they were given, were NOT a proper substitute for the 13th month pay required by law. Neither may year-end reward of loyalty and service be considered in lieu of 13th month pay. 14th Month Pay Cases Kamaya Port Hotel v NLRC, 177 SCRA 160 (1989) There is no law that mandates the payment of 14th month pay. This is emphasized in the grant of exemptions under PD851, which states that “Employers already paying their employees a 13th month pay or its equivalent are not covered by this Decree.” Necessarily then, only 13th month pay is mandated. Diminution Cases Davao Fruits Corp. v Associated Labor Unions, 225 SCRA 562 (1993) A company practice favorable to the employees had indeed been established and the payments made pursuant thereto, ripened into benefits enjoyed by them. And any benefit and supplement being enjoyed by the employees cannot be reduced, diminished, discontinued or eliminated by the employer, by virtue of Section 10 of the Rules and Regulations Implementing P.D. No. 851, and Article 100 of the labor of the Philippines, which prohibit the diminution or elimination by the employer of the employees' existing benefits (Tiangco v. Leogardo, Jr., 122 SCRA 267, [1983]). 9.14 Bonus Management Function Cases Business Information Systems and Services Inc v NLRC, 221 SCRA 9 (1993) The grant of a bonus is a prerogative, NOT an obligation, of the employer. The matter of giving a bonus over and above the worker’s lawful salaries and allowances is entirely dependent on the financial capability of the employer to give it. Asian Transmission Corp v CA, 425 SCRA 478 (2004) As reflected above, Art. 94 of the Labor Code, as amended, affords a worker the enjoyment of ten paid regular holidays. The provision is
109
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
mandatory, regardless of whether an employee is paid on a monthly or daily basis. Unlike a bonus, which is a management prerogative, holiday pay is a statutory benefit demandable under the law. Since a worker is entitled to the enjoyment of ten paid regular holidays, the fact that two holidays fall on the same date should not operate to reduce to nine the ten holiday pay benefits a worker is entitled to receive. Nature—Bonus—When Demandable • When part of the salary or wage • When there is a contractual agreement promising to pay such • When it is established company practice Cases American Wire and Cable Daily Rated Employees Union v American Wire and Cable Co., Inc, 457 SCRA 684 (2005) For a bonus to be enforceable, it must have been promised by the employer and expressly agreed upon by the parties, or it must have had a fixed amount and had been a long and regular practice on the part of the employer. Luzon Stevedoring Corp v CIR, 15 SCRA 660 (1965) Bonus becomes demandable so when it is made a part of the wage or salary or compensation. In such a case, the latter would be a fixed amount and the former would be a contingent one dependent upon the realization of profits. If there be none, there would be no bonus. Liberators Steamship Co Inc v CIR, 23 SCRA 1105 (1968) While normally discretionary, the grant of a gratuity or bonus, by reason of its long and regular concession, may become regarded as part of regular compensation (Philippine Education Co., Inc. vs. C.I.R., 92 Phil. 382, 385, and cases cited therein). Marcos v NLRC, 248 SCRA 146 (1995) If one enters into a contract of employment under an agreement that he shall be paid a certain salary by the week or some other stated period and, in addition, a bonus, in case he serves for a specified length of time, there is no reason for refusing to enforce the promise to pay the bonus, if the employee has served during the stipulated time, on the ground that it was a promise of a mere gratuity. Phil. National Construction Corp v NLRC, 307 SCRA 218 (1999) Likewise, private respondents are not entitled to the mid-year bonus they are claiming. We do not agree with the Solicitor General's contention that private respondents have already earned their mid-year bonus at the time of their dismissal. A bonus is a gift from the employer and the grant thereof is a management prerogative. Petitioner may not
NIKKI HIPOLITO
NOTES
be compelled to award a bonus to private respondents whom it found guilty of serious misconduct. Producers Bank of the Phils v NLRC, 355 SCRA 489 (2001) A bonus is an amount 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. It is an act of generosity granted by an enlightened employer to spur the employee to greater efforts for the success of the business and realization of bigger profits. The granting of a bonus is a management prerogative, something given in addition to what is ordinarily received by or strictly due the recipient. Thus, a bonus is not a demandable and enforceable obligation, except when it is made part of the wage, salary or compensation of the employee. However, an employer cannot be forced to distribute bonuses which it can no longer afford to pay. To hold otherwise would be to penalize the employer for his past generosity. Philippine Duplicators Inc v NLRC, 241 SCRA 380 (1995) If an employer cannot be compelled to pay a productivity bonus to his employees, it should follow that such productivity bonus, when given, should not be deemed to fall within the "basic salary" of employees when the time comes to compute their 13th month pay. We recognize that both productivity bonuses and sales commissions may have an incentive effect. But there is reason to distinguish one from the other here. Productivity bonuses are generally tied to the productivity or profit generation of the employer corporation. Productivity bonuses are not directly dependent on the extent an individual employee exerts himself. A productivity bonus is something extra for which no specific additional services are rendered by any particular employee and hence not legally demandable, absent a contractual undertaking to pay it. Sales commissions, on the other hand, such as those paid in Duplicators, are intimately related to or directly proportional to the extent or energy of an employee's endeavors. Commissions are paid upon the specific results achieved by a salesman-employee. It is a percentage of the sales closed by a salesman and operates as an integral part of such salesman's basic pay. Manila Electric Co. v Quisumbing, 302 SCRA 173 (1999) A bonus may be considered demandable based on equitable considerations as when the giving of such bonus has been the company’s long and regular practice. To be considered a “regular practice,” the giving of the bonus should have been done over a long period of time, and must be shown to have been consistent and deliberate.
110
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Phil. Appliance Corp v CA, 430 SCRA 525 (2004) Furthermore, we have consistently ruled that a bonus is not a demandable and enforceable obligation. True, it may nevertheless be granted on equitable considerations as when the giving of such bonus has been the company’s long and regular practice. To be considered a "regular practice," however, the giving of the bonus should have been done over a long period of time, and must be shown to have been consistent and deliberate. The test or rationale of this rule on long practice requires an indubitable showing that the employer agreed to continue giving the benefits knowing fully well that said employees are not covered by the law requiring payment thereof. Respondent does not contest the fact that petitioner initially offered a signing bonus only during the previous CBA negotiation. Previous to that, there is no evidence on record that petitioner ever offered the same or that the parties included a signing bonus among the items to be resolved in the CBA negotiation. Hence, the giving of such bonus cannot be deemed as an established practice considering that the same was given only once, that is, during the 1997 CBA negotiation. 9.15 Productivity Incentives Act of 1990 (RA 6971) Section 2. Declaration of Policy. - It is the declared policy of the State to encourage higher levels of productivity, maintain industrial peace and harmony and promote the principle of shared responsibility in the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of business enterprises to reasonable returns on investments and to expansion and growth, and accordingly to provide corresponding incentives to both labor and capital for undertaking voluntary programs to ensure greater sharing by the workers in the fruits of their labor. Section 3. Coverage. - This Act shall apply to all business enterprises with or without existing and duly recognized or certified labor organizations, including government-owned and controlled corporations performing proprietary functions. It shall cover all employees and workers including casual, regular, supervisory and managerial employees. Section 4. Definition of Terms. - As used in this Act: a) "Business Enterprise" refers to industrial, agricultural, or agroindustrial establishments engaged in the production manufacturing, processing, repacking, or assembly of goods, including service-oriented enterprises, duly certified as such by appropriate government agencies. b) "Labor-Management Committee" refers to a negotiating body in a business enterprise composed of the representatives of labor and management created to establish a productivity incentives program, and to settle disputes arising therefrom in accordance with Section 9 hereof. NIKKI HIPOLITO
NOTES
c) "Productivity Incentives Program" refers to a formal agreement established by the labor-management committee containing a process that will promote gainful employment, improve working conditions and result in increased productivity, including cost savings, whereby the employees are granted salary bonuses proportionate to increases in current productivity over the average for the preceding three (3) consecutive years. The agreement shall be ratified by at least a majority of the employees who have rendered at least six (6) months of continuous service. Section 5. Labor-Management Committee. - a) A business enterprise or its employees, through their authorized representatives, may initiate the formation of a labor-management committee that shall be composed of an equal number of representatives from the management and from the rank-and-file employees: Provided, That both management and labor shall have equal voting rights: Provided, further, That at the request of any party to the negotiation, the National Wages and Productivity Commission of the Department of Labor and Employment shall provide the necessary studies, technical information and assistance, and expert advice to enable the parties to conclude productivity agreements. b) In business enterprises with duly recognized or certified labor organizations, the representatives of labor shall be those designated by the collective bargaining agent(s) of the bargaining unit(s). c) In business enterprises without duly recognized or certified labor organizations, the representatives of labor shall be elected by at least a majority of all rank-and-file employees who have rendered at least six (6) months of continuous service. Section 6. Productivity Incentives Program. a) The productivity incentives program shall contain provisions for the manner of sharing and the factors in determining productivity bonuses: Provided, That the productivity bonuses granted to labor under this program shall not be less than half of the percentage increase in the productivity of the business enterprise. b) Productivity agreements reached by the parties as provided in this Act supplement existing collective bargaining agreements. c) If, during the existence of the productivity incentives program or agreement, the employees will join or form a union, such program or agreement may, in addition to the terms and conditions agreed upon by labor and management, be integrated in the collective bargaining agreement that may be entered into between them.
111
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Section 7. Benefits and Tax Incentives. - (a) Subject to the provisions of Section 6 hereof, a business enterprise which adopts a productivity incentives program, duly and mutually agreed upon by parties to the labor-management committee, shall be granted a special deduction from gross income equivalent to fifty percent (50%) of the total productivity bonuses given to employees under the program over and above the total allowable ordinary and necessary business deductions for said bonuses under the National Internal Revenue Code, as amended. b) Grants for manpower training and special studies given to rank-andfile employees pursuant to a program prepared by the labormanagement committee for the development of skills identified as necessary by the appropriate government agencies shall also entitle the business enterprise to a special deduction from gross income equivalent to fifty per cent (50%) of the total grants over and above the allowable ordinary and necessary business deductions for said grants under the National Internal Revenue Code, as amended. c) Any strike or lockout arising from any violation of the productivity incentives program shall suspend the effectivity thereof pending settlement of such strike or lockout: Provided, That the business enterprise shall not be deemed to have forfeited any tax incentives accrued prior to the date of occurrence of such strike or lockout, and the workers shall not be required to reimburse the productivity bonuses already granted to them under the productivity incentives program. Likewise, bonuses which have already accrued before the strike or lockout shall be paid the workers within six (6) months from their accrual. d) Bonuses provided for under the productivity incentives program shall be given to the employees not later than every six (6) months from the start of such program over and above existing bonuses granted by the business enterprise and by law: Provided, That the said bonuses shall not be deemed as salary increases due the employees and workers. e) The special deductions from gross income provided for herein shall be allowed starting the next taxable year after the effectivity of this Act.
NOTES
management committee shall meet to resolve the dispute, and may seek the assistance of the National Conciliation and Mediation Board of the Department of Labor and Employment for such purpose. Any dispute which remains unresolved within twenty (20) days from the time of its submission to the labor-management committee shall be submitted for voluntary arbitration in line with the pertinent of the Labor Code, as amended. The productivity incentives program shall include the name(s) of the voluntary arbitrator or panel of voluntary arbitrators previously chosen and agreed upon by the labor-management committee. Section 10. Rule Making Power. - The Secretary of Labor and Employment and the Secretary of Finance, after due notice and hearing, shall jointly promulgate and issue within six (6) months from the effectivity of this Act such rules and regulations as are necessary to carry out the provisions hereof. Section 11. Penalty. - Any person who shall make any fraudulent claim under this Act, regardless of whether or not a tax benefit has been granted, shall upon conviction be punished with imprisonment of not less than six (6) months but not more than one (1) year or a fine of not less than two thousand pesos (P2,000.00) but not more than six thousand pesos (P6,000.00), or both, at the discretion of the Court, without prejudice to prosecution for any other acts punishable under existing laws. In case of partnerships or corporations, the penalty shall be imposed upon the officer(s) or employee(s) who knowingly approved, authorized or ratified the filing of the fraudulent claim, and other persons responsible therefor. Section 12. Non-Diminution of Benefits. - Nothing in this Act shall be construed to diminish or reduced any benefits and other privileges enjoyed by the workers under existing laws, decrees, executive orders, company policy or practice, or any agreement or contract between the employer and employees. E. WAGE RECOVERY, LIABILITIES AND WORKER PREFERENCE
Section 8. Notification. - A business enterprise which adopts a productivity incentives program shall submit copies of the same to the National Wages and Productivity Commission and to the Bureau of Internal Revenue for their information and record. Section 9. Disputes and Grievances. - Whenever disputes, grievances, or other matters arise from the interpretation or implementation of the productivity incentives program, the laborNIKKI HIPOLITO
9.16 Liability of Employer and Other Parties Employer, Independent Contractor and Subcontractor and Labor Only Contracting SEC. 106: Whenever an employer enters into a contract with another person for the performance of the formers work, the employees of the contractor and of the latter subcontractor, if any, shall be paid in accordance with the provisions of this Code.
112
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code. There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. SEC. 107: The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. SEC. 108: An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. SEC. 109: The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers.
NIKKI HIPOLITO
NOTES
Liabilities Cases Lapanday Agricultura Development Corp v CA, 324 SCRA 39 (2000) The joint and several liability of the contractor and the principal is mandated by the Labor Code to assure compliance with the provisions therein including the minimum wage. The contractor is made liable by virtue of his status as direct employer. The principal, on the other hand, is made the indirect employer of the contractor’s employees to secure payment of their wages should the contractor be unable to pay them. Even in the absence of an ER-EE relationship, the law itself establishes one between the principal and the employees of the agency for a limited purpose (i.e. in order to ensure that the employees are paid the wages due them). In the above-mentioned cases, the solidary liability of the principal and the contractor was held to apply to the aforementioned Wage Orders No. 5 and 6. Sentinel Security Agency Inc v NLRC, 298 SCRA 562 (1998) Under these provisions, the indirect employer, who is the Client in the case at bar, is jointly and severally liable with the contractor for the workers’ wages, in the same manner and extent that it is liable to its direct employees. This liability of the Client covers the payment of the service incentive leave pay of the complainants during the time they were posted at the Cebu branch of the Client. As service had been rendered, the liability accrued, even if the complainants were eventually transferred or reassigned. OSM Shipping Phils. Inc v NLRC, 398 SCRA 606 (2003) Petitioner, as manning agent, is jointly and severally liable with its principal, PC-SASCO, for private respondent's claim. This conclusion is in accordance with Section 1 of Rule II of the POEA Rules and Regulations. Joint and solidary liability is meant to assure aggrieved workers of immediate and sufficient payment of what is due them. The fact that petitioner and its principal have already terminated their agency agreement does not relieve the former of its liability. The reason for this ruling was given by this Court in Catan v. National Labor Relations Commission, which we reproduce in part as follows: "This must be so, because the obligations covenanted in the [manning] agreement between the local agent and its foreign principal are not coterminus 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. Otherwise, this will render nugatory the very purpose
113
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
for which the law governing the employment of workers for foreign jobs abroad was enacted. Manila Electric Co. v Benamira, 463 SCRA 331 (2005) The fact that there is no actual and direct employer-employee relationship between MERALCO and the individual respondents does not exonerate MERALCO from liability as to the monetary claims of the individual respondents. When MERALCO contracted for security services with ASDAI as the security agency that hired individual respondents to work as guards for it, MERALCO became an indirect employer of individual respondents pursuant to Article 107 of the Labor Code, which reads: ART. 107. Indirect employer - The provisions of the immediately preceding Article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. When ASDAI as contractor failed to pay the individual respondents, MERALCO as principal becomes jointly and severally liable for the individual respondents’ wages, under Articles 106 and 109 of the Labor Code, which provide: ART. 106. Contractor or subcontractor. - Whenever an employer enters into a contract with another person for the performance of the former[‘s] work, the employees of the contractor and of the latter[‘s] subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. xxx ART. 109. Solidary liability - The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purpose of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers.
NIKKI HIPOLITO
NOTES
ASDAI is held liable by virtue of its status as direct employer, while MERALCO is deemed the indirect employer of the individual respondents for the purpose of paying their wages in the event of failure of ASDAI to pay them. This statutory scheme gives the workers the ample protection consonant with labor and social justice provisions of the 1987 Constitution. 9.17 Worker Preference—Bankruptcy ART. 110: In the event of bankruptcy or liquidation of an employer's business, his workers shall enjoy first preference as regards their unpaid wages and other monetary claims, any provision of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before the claims of the Government and other creditors may be paid. ART. 1707, NCC: The laborer's wages shall be a lien on the goods manufactured or the work done. ART. 2241, NCC: With reference to specific movable property of the debtor, the following claims or liens shall be preferred: (6) Claims for laborers' wages, on the goods manufactured or the work done; ART. 2242, NCC: With reference to specific immovable property and real rights of the debtor, the following claims, mortgages and liens shall be preferred, and shall constitute an encumbrance on the immovable or real right: (3) Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other works; ART. 2244, NCC: With reference to other property, real and personal, of the debtor, the following claims or credits shall be preferred in the order named: (4) Compensation due the laborers or their dependents under laws providing for indemnity for damages in cases of labor accident, or illness resulting from the nature of the employment; Civil Code—Labor Code Cases Phil. Export etc v CA, 251 SCRA 354 (1995) A final observation. On 21 March 1989, Article 110 of the Labor Code was amended by Republic Act No. 6715 so as to read:
114
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Art. 110. Worker preference in case of bankruptcy. — In the event of bankruptcy or liquidation of an employer's business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the Government and other creditors may be paid. Since then, the Court has had a number of occasions to rule on the effects of the amendment. In Development Bank of the Philippines vs. National Labor Relations Commission (183 SCRA 328, 336-339), the Court has said: The amendment expands worker preference to cover not only unpaid wages but also other monetary claims to which even claims of the Government must be deemed subordinate. xxx xxx xxx Notably, the terms "declaration" of bankruptcy or "judicial" liquidation have been eliminated. Does this mean then that liquidation proceedings have been done away with? We opine in the negative, upon the following considerations: 1. Because of its impact on the entire system of credit, Article 110 of the Labor Code cannot be viewed in isolation but must be read in relation to the Civil Code scheme on classification and preference of credits. xxx xxx xxx 2. In the same way that the Civil Code provisions on classification of credits and the Insolvency Law have been brought into harmony, so also must the kindred provisions of the Labor Law be made to harmonize with those laws. 3. In the event of insolvency, a principal objective should be to effect an equitable distribution of the insolvent's property among his creditors. To accomplish this there must first be some proceeding where notice to all of the insolvent's creditors may be given and where the claims of preferred creditors may be bindingly adjudicated (De Barretto vs. Villanueva, No. L-14938, December 29, 1962, 6 SCRA 928). The rationale therefore has been expressed in the recent case of DBP vs. Secretary of Labor (G.R. No. 79351, 28 November 1989), which we quote: xxx xxx xxx 4. A distinction should be made between a preference of credit and a lien. A preference applies only to claims which do not attach to specific properties. A lien creates a charge on a particular property. The right of first preference as regards unpaid wages recognized by Article 110 does not constitute a lien on the property of the insolvent debtor in favor of workers. It is but a preference of credit in their favor, a preference in application. It is a method adopted to determine and specify the order in NIKKI HIPOLITO
NOTES
which credits should be paid in the final distribution of the proceeds of the insolvent's assets. It is a right to a first preference in the discharge of the funds of the judgment debtor. xxx xxx xxx 6. Even if Article 110 and its implementing Rule, as amended, should be interpreted to mean "absolute preference," the same should be given only prospective effect in line with the cardinal rule that laws shall have no retroactive effect, unless the contrary is provided (Article 4, Civil Code). Thereby, any infringement on the constitutional guarantee on non-impairment of the obligation of contracts (Section 10, Article III, 1987 Constitution) is also avoided. In point of fact, DBP's mortgage credit antedated by several years the amendatory law, RA No. 6715. To give Article 110 retroactive effect would be to wipe out the mortgage in DBP's favor and expose it to a risk which it sought to protect itself against by requiring a collateral in the form of real property. In fine, the right to preference given to workers under Article 110 of the Labor Code cannot exist in any effective way prior to the time of its presentation in distribution proceedings. It will find application when, in proceedings such as insolvency, such unpaid wages shall be paid in full before the "claims of the Government and other creditors" may be paid. But, for an orderly settlement of a debtor's assets, all creditors must be convened, their claims ascertained and inventoried, and thereafter the preferences determined in the course of judicial proceedings which have for their object the subjection of the property of the debtor to the payment of his debts or other lawful obligations. Thereby, an orderly determination of preference of creditors' claims is assured (Philippine Savings Bank vs. Lantin, No. L-33929, September 2, 1983, 124 SCRA 476); the adjudication made will be binding on all parties-in-interest, since those proceedings are proceedings in rem; and the legal scheme of classification, concurrence and preference of credits in the Civil Code, the Insolvency Law, and the Labor Code is preserved in harmony. Barayoga v Asset Privatization Trust, 473 SCRA 690 (2005) Thus, the right of employees to be paid benefits due them from the properties of their employer cannot have any preference over the latter’s mortgage credit. In other words, being a mortgage credit, APT’s lien on BISUDECO’s mortgaged assets is a special preferred lien that must be satisfied first before the claims of the workers. Development Bank of the Philippines v. NLRC explained the rationale of this ruling as follows: “x x x. A preference applies only to claims which do not attach to specific properties. A lien creates a charge on a particular property. The right of first preference as regards unpaid wages recognized by
115
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Article 110 does not constitute a lien on the property of the insolvent debtor in favor of workers. It is but a preference of credit in their favor, a preference in application. It is a method adopted to determine and specify the order in which credits should be paid in the final distribution of the proceeds of the insolvent’s assets. It is a right to a first preference in the discharge of the funds of the judgment debtor. x x x” Furthermore, workers’ claims for unpaid wages and monetary benefits cannot be paid outside of a bankruptcy or judicial liquidation proceedings against the employer. It is settled that the application of Article 110 of the Labor Code is contingent upon the institution of those proceedings, during which all creditors are convened, their claims ascertained and inventoried, and their preferences determined. Assured thereby is an orderly determination of the preference given to creditors’ claims; and preserved in harmony is the legal scheme of classification, concurrence and preference of credits in the Civil Code, the Insolvency Law, and the Labor Code. Republic v Peralta, 150 SCRA 37 (1987) We believe and so hold that Article 110 of the Labor Code did not sweep away the overriding preference accorded under the scheme of the Civil Code to tax claims of the government or any subdivision thereof which constitute a lien upon properties of the Insolvent. It is frequently said that taxes are the very lifeblood of government. The effective collection of taxes is a task of highest importance for the sovereign. It is critical indeed for its own survival. It follows that language of a much higher degree of specificity than that exhibited in Article 110 of the Labor Code is necessary to set aside the intent and purpose of the legislator that shines through the precisely crafted provisions of the Civil Code. It cannot be assumed simpliciter that the legislative authority, by using in Article 110 the words "first preference" and "any provision of law to the contrary notwithstanding" intended to disrupt the elaborate and symmetrical structure set up in the Civil Code. Neither can it be assumed casually that Article 110 intended to subsume the sovereign itself within the term "other creditors" in stating that "unpaid wages shall be paid in full before other creditors may establish any claim to a share in the assets of employer." Insistent considerations of public policy prevent us from giving to "other creditors" a linguistically unlimited scope that would embrace the universe of creditors save only unpaid employees. We, however, do not believe that Article 110 has had no impact at all upon the provisions of the Civil Code. Bearing in mind the overriding precedence given to taxes, duties and fees by the Civil Code and the fact that the Labor Code does not impress any lien on the property of an NIKKI HIPOLITO
NOTES
employer, the use of the phrase "first preference" in Article 110 indicates that what Article 110 intended to modify is the order of preference found in Article 2244, which order relates, as we have seen, to property of the Insolvent that is not burdened with the liens or encumbrances created or recognized by Articles 2241 and 2242. We have noted that Article 2244, number 2, establishes second priority for claims for wages for services rendered by employees or laborers of the Insolvent "for one year preceding the commencement of the proceedings in insolvency." Article 110 of the Labor Code establishes "first preference" for services rendered "during the period prior to the bankruptcy or liquidation, " a period not limited to the year immediately prior to the bankruptcy or liquidation. Thus, very substantial effect may be given to the provisions of Article 110 without grievously distorting the framework established in the Civil Code by holding, as we so hold, that Article 110 of the Labor Code has modified Article 2244 of the Civil Code in two respects: (a) firstly, by removing the one year limitation found in Article 2244, number 2; and (b) secondly, by moving up claims for unpaid wages of laborers or workers of the Insolvent from second priority to first priority in the order of preference established I by Article 2244. Receivership Cases Rubberworld (Phil.) Inc v NLRC, 336 SCRA 433 (2000) The law (PD902-A) is clear—upon the creation of a management committee or the appointment of a rehabilitation receiver, all claims for actions “shall be suspended accordingly.” No exception in favor of labor claims is mentioned in the law. Since the law makes no distinction or exemptions, neither should this Court. Allowing labor cases to proceed clearly defeats the purpose of the automatic stays and severally encumbers the management committee’s and resources. 9.18 Wage Recovery and Attorney’s Fees ART. 128: Visitorial and enforcement power. - (a) The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. (b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employeremployee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance
116
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary 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. (As amended by Republic Act No. 7730, June 2, 1994). An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994). (c) The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. (d) It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. (e) Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. (f) The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code. NIKKI HIPOLITO
NOTES
ART. 129: Recovery of wages, simple money claims and other benefits. - Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers. Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules. The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21, 1989). ART. 217: Jurisdiction of Labor Arbiters and the Commission. — (a) The Labor Arbiters shall have the original and exclusive jurisdiction to hear and decide within thirty (30) working days after submission of the case by the parties for decision, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases 2. Those that workers may file involving wages, hours of work and other terms and conditions of employment; 3. All money claim of workers, including those based on non-payment
117
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
4. 5.
or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or appropriate agreement, except claims for employees' compensation, social security, medicare and maternity benefits; Cases involving household services; and Cases arising from any violation of Article 265 of this Code, including questions involving the legality of strikes and lockouts.
"(b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters." ART. 111: Attorney’s fees. - (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered. (b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered. Cases Placewell International etc v Camote, 492 SCRA 761 (2006) It is settled that in actions for recovery of wages or where an employee was forced to litigate and incur expenses to protect his rights and interests, he is entitled to an award of attorney’s fees.
NOTES
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Minimum Wages Cases Atok Big Wedge Mining Co. Inc v Atok Big Wedge Mutual Benefit Association, 92 Phil. 755 (1953) The law guarantees the laborer fair and just wage. The minimum wage can by no means imply only the actual minimum. Some margin or leeway must be provided, over and above the minimum, to take care of contingencies, such as increase of prices of commodities and increase in wants, and provide means for a desirable improvement in his mode of living. Beneficiaries Cases People v Gatchalian, 104 Phil. 664 (1959) The establishment of the maximum wage benefits directly the low-paid employees, who now receive inadequate wages, on which to support themselves and their families. It benefits all wage earners indirectly by settling a floor below which their remuneration cannot fail. It raises the standards of competition among employers, since it would protect the fair-minded employer who voluntarily pays a wage that supports the wage earner from the competition of the employer, who operates at lower cost by reasons of paying his workers a wage below subsistence.
F. MINIMUM WAGES 9.19 Wages and the Constitution ART. XIII, SEC. 3, Constitution: The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
NIKKI HIPOLITO
Effect Inability Pay Cases Phil. Apparel Workers Union v NLRC, 106 SCRA 444 (1981) ...The judgment in this case has already become final and executory and as such the prevailing party as a matter of right is entitled to a writ of execution. What seems to be the problem in this case is that execution of the judgment cannot be had at the earliest possible time, since a computation of the amount due the members of petitioner must first be undertaken. The Report of the Examiner indicating the amount due them was submitted only after one and a half years, so that in the meantime, negotiations on how the judgment may be executed were made. It is the posture of the Paterno D. Menzon Law Office that the judgment cannot be negotiated, hence any act to subvert it is contemptuous. We agree, The attempts of the BPPAWU and company to render the decision of this Court backwages of the affected employees in manifest a willful disregard on their part, of
its counsel and respondent meaningless by paying the a lesser amount clearly the authority of this Court
118
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
as the final arbiter of cases brought to it. The series of acts by the BPPAWU from the outset, where they caused the 'Kapahintulutan' to be circulated and signed by workers declaring as invalid any acts of petitioner union and its counsel to the time they campaigned for the workers to receive the amount of P300.00 or P500.00 but with the concomitant obligation to release the company from any further liability showed disrespect for the administration of justice. The BPPAWU and its counsel cannot pretend that they are just being more protective to the employees when they encouraged them to receive the amount of P300.00 or P500.00. They know too well that said amount is much less than that to be received by the employees after computing all the backwages if the decision is executed. It would have been laudable had not the company pressed the workers to sign the quitclaims and release of which the BPPAWU cannot pretend to be unaware, for the payment could be taken as initial compliance with the judgment with the balance to be paid by the company when the final computation of the backwages has been finished and submitted by the Research and Information Division of the National Labor Relations Commission. Indeed, their questionable acts do not sit well with a desire to implement the decision of this Court. If the BPPAWU is really after the welfare of the employees, they will not leave any stone unturned to get the best for them by giving effect to the decision of this Court. In our decision, we have ordered the company to pay the negotiated wage increase of P0.80 daily effective April 1, 1977. As per petitioner's; computation, as may be gleaned from the urgent motion for issuance of a restraining order dated March 11, 1982, on backwages alone, not counting adjustments in overtime pay and other benefits, each employee is entitled to receive at the very least of Pl,248.00 (P0.80 x 26 working days x 12 months x 5 years from 1977 to 1982) [p. 281, recli If we shall include the backwages corresponding from January, 1983 to the present, the same will definitely be higher than Pl,248.00. Clearly, the offer by the company, supported by the BPPAWU to pay the employees in the amount of P300.00 or P500.00 as full and final payment is unjust to them, especially if We shall consider that some employees did not have the alternative but to accept the payment because they were in a tight financial condition. Such move cannot he sanctioned by this Court, for otherwise giving effect to the award of backwages would be left to the whim of the losing company taking advantage of the rationale behind the decision in Mercury Drug Co. v. CIR (L-23357, promulgated April 30, 1974, 56 SCRA 695), the quitclaims and releases signed by the employees are considered null and void. The employees are therefore still entitled to the difference between what is due them and the amount they received. Another important consideration is that if We countenance such act, the sanctity
NIKKI HIPOLITO
NOTES
of the contract validly entered into by the parties which as in this case was interpreted by this Court, will be violated. Rollo, pp. 382-384) 9.20 Agencies for Wage Fixing Machinery A. National Wages and Productivity Commission ART. 120: Creation of National Wages and Productivity Commission. There is hereby created a National Wages and Productivity Commission, hereinafter referred to as the Commission, which shall be attached to the Department of Labor and Employment (DOLE) for policy and program coordination. ART. 121: Powers and functions of the Commission. - The Commission shall have the following powers and functions: (a) To act as the national consultative and advisory body to the President of the Philippines and Congress on matters relating to wages, incomes and productivity; (b) To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels; (c) To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial, or industry levels; (d) To review regional wage levels set by the Regional Tripartite Wages and Productivity Boards to determine if these are in accordance with prescribed guidelines and national development plans; (e) To undertake studies, researches and surveys necessary for the attainment of its functions and objectives, and to collect and compile data and periodically disseminate information on wages and productivity and other related information, including, but not limited to, employment, cost-of-living, labor costs, investments and returns; (f) To review plans and programs of the Regional Tripartite Wages and Productivity Boards to determine whether these are consistent with national development plans; (g) To exercise technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards; (h) To call, from time to time, a national tripartite conference of representatives of government, workers and employers for the consideration of measures to promote wage rationalization and productivity; and (i) To exercise such powers and functions as may be necessary to
119
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
implement this Act.
wage orders, subject to guidelines issued by the Commission;
The Commission shall be composed of the Secretary of Labor and Employment as ex-officio chairman, the Director-General of the National Economic and Development Authority (NEDA) as ex-officio vicechairman, and two (2) members each from workers’ and employers’ sectors who shall be appointed by the President of the Philippines upon recommendation of the Secretary of Labor and Employment to be made on the basis of the list of nominees submitted by the workers’ and employers’ sectors, respectively, and who shall serve for a term of five (5) years. The Executive Director of the Commission shall also be a member of the Commission.
(c) To undertake studies, researches, and surveys necessary for the attainment of their functions, objectives and programs, and to collect and compile data on wages, incomes, productivity and other related information and periodically disseminate the same;
The Commission shall be assisted by a Secretariat to be headed by an Executive Director and two (2) Deputy Directors, who shall be appointed by the President of the Philippines, upon the recommendation of the Secretary of Labor and Employment. The Executive Director shall have the same rank, salary, benefits and other emoluments as that of a Department Assistant Secretary, while the Deputy Directors shall have the same rank, salary, benefits and other emoluments as that of a Bureau Director. The members of the Commission representing labor and management shall have the same rank, emoluments, allowances and other benefits as those prescribed by law for labor and management representatives in the Employees’ Compensation Commission. ART. 126: Prohibition against injunction. – No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the Commission or the Regional Boards. B. Regional Tripartite Wages and Productivity Board ART. 122: Creation of Regional Tripartite Wages and Productivity Boards. - There is hereby created Regional Tripartite Wages and Productivity Boards, hereinafter referred to as Regional Boards, in all regions, including autonomous regions as may be established by law. The Commission shall determine the offices/headquarters of the respective Regional Boards. The Regional Boards shall have the following powers and functions in their respective territorial jurisdictions: (a) To develop plans, programs and projects relative to wages, incomes and productivity improvement for their respective regions; (b) To determine and fix minimum wage rates applicable in their regions, provinces or industries therein and to issue the corresponding NIKKI HIPOLITO
(d) To coordinate with the other Regional Boards as may be necessary to attain the policy and intention of this Code; (e) To receive, process and act on applications for exemption from prescribed wage rates as may be provided by law or any Wage Order; and (f) To exercise such other powers and functions as may be necessary to carry out their mandate under this Code. Implementation of the plans, programs, and projects of the Regional Boards referred to in the second paragraph, letter (a) of this Article, shall be through the respective regional offices of the Department of Labor and Employment within their territorial jurisdiction; Provided, however, That the Regional Boards shall have technical supervision over the regional office of the Department of Labor and Employment with respect to the implementation of said plans, programs and projects. Each Regional Board shall be composed of the Regional Director of the Department of Labor and Employment as chairman, the Regional Directors of the National Economic and Development Authority and the Department of Trade and Industry as vice-chairmen and two (2) members each from workers’ and employers’ sectors who shall be appointed by the President of the Philippines, upon the recommendation of the Secretary of Labor and Employment, to be made on the basis of the list of nominees submitted by the workers’ and employers’ sectors, respectively, and who shall serve for a term of five (5) years. Each Regional Board to be headed by its chairman shall be assisted by a Secretariat. ART. 126: Prohibition against injunction. – No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the Commission or the Regional Boards. Functions Cases Nasipit Lumber Co. v NLRC, 289 SCRA 339 (2003) Power to Prescribe Guidelines: Lodged in the NWPC, Not in the RTWPB
120
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
The three great branches and the various administrative agencies of the government can exercise only those powers conferred upon them by the Constitution and the law. 14 It is through the application of this basic constitutional principle that the Court resolves the instant case. RA 6727 (the Wage Rationalization Act), amending the Labor Code, created both the NWPC and the RTWPB and defined their respective powers. Article 121 of the Labor Code lists the powers and functions of the NWPC. 9.21 Area Minimum Wages and Criteria ART. 124: Standards/Criteria for minimum wage fixing. - The regional minimum wages to be established by the Regional Board shall be as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general wellbeing of the employees within the framework of the national economic and social development program. In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors, consider the following: (a) The demand for living wages; (b) Wage adjustment vis-à-vis the consumer price index; (c) The cost of living and changes or increases therein; (d) The needs of workers and their families; (e) The need to induce industries to invest in the countryside;
NOTES
Any person, company, corporation, partnership or any other entity engaged in business shall file and register annually with the appropriate Regional Board, Commission and the National Statistics Office, an itemized listing of their labor component, specifying the names of their workers and employees below the managerial level, including learners, apprentices and disabled/handicapped workers who were hired under the terms prescribed in the employment contracts, and their corresponding salaries and wages. Where the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary arbitration. In cases where there are no collective agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission (NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute within twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration.
(f) Improvements in standards of living; (g) The prevailing wage levels; (h) Fair return of the capital invested and capacity to pay of employers; (i) Effects on employment generation and family income; and (j) The equitable distribution of income and wealth along the imperatives of economic and social development. The wages prescribed in accordance with the provisions of this Title shall be the standard prevailing minimum wages in every region. These wages shall include wages varying with industries, provinces or localities if in the judgment of the Regional Board, conditions make such local differentiation proper and necessary to effectuate the purpose of this Title. NIKKI HIPOLITO
The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of any increase in prescribed wage rates pursuant to the provisions of law or wage order. As used herein, a wage distortion shall mean a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. All workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall receive not less than the prescribed wage rates per eight (8) hours of work a day, or a proportion thereof for working less than eight (8) hours.
121
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
All recognized learnership and apprenticeship agreements shall be considered automatically modified insofar as their wage clauses are concerned to reflect the prescribed wage rates. 9.22 Wage Order ART. 123: Wage Order. - Whenever conditions in the region so warrant, the Regional Board shall investigate and study all pertinent facts; and based on the standards and criteria herein prescribed, shall proceed to determine whether a Wage Order should be issued. Any such Wage Order shall take effect after fifteen (15) days from its complete publication in at least one (1) newspaper of general circulation in the region. In the performance of its wage-determining functions, the Regional Board shall conduct public hearings/consultations, giving notices to employees’ and employers’ groups, provincial, city and municipal officials and other interested parties. Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (10) calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof. The filing of the appeal does not stay the order unless the person appealing such order shall file with the Commission, an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed. ART. 124: see above Methods of Fixing Cases Employers Confederation of the Phil. v National Wages and Productivity Commission, 201 SCRA 759 (1991) The Act is meant to rationalize wages, that is, by having permanent boards to decide wages rather than leaving wage determination to Congress year after year and law after law. The Court is not of course saying that the Act is an effort of Congress to pass the buck, or worse, to abdicate its duty, but simply, to leave the question of wages to the expertise of experts.
NIKKI HIPOLITO
NOTES
Agency Authority Cases Nasipit Integrated etc v Nasipit etc., 556 SCRA 206 (2008) R.A. No. 6727 declared it a policy of the State to rationalize the fixing of minimum wages and to promote productivity improvement and gainsharing measures to ensure a decent standard of living for the workers and their families; to guarantee the rights of labor to its just share in the fruits of production; to enhance employment generation in the countryside through industrial dispersal; and to allow business and industry reasonable returns on investment, expansion and growth. In line with its declared policy, R.A. No. 6727 created the NWPC, vested with the power to prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial or industry levels; and authorized the RTWPB to determine and fix the minimum wage rates applicable in their respective regions, provinces, or industries therein and issue the corresponding wage orders, subject to the guidelines issued by the NWPC. Pursuant to its wage fixing authority, the RTWPB may issue wage orders which set the daily minimum wage rates, based on the standards or criteria set by Article 124 of the Labor Code. Requirements Validity Cases Cagayan Sugar Milling Co. v Secretary, 284 SCRA 150 (1998) • Regional Board shall conduct public hearings and consultations, giving notices to interested parties. • The Wage Order shall take effect only after publication in a newspaper of general circulation in the region. Piece Worker Cases Lambo v NLRC, 317 SCRA 420 (1999) The term “wage” is broadly defined in Art. 97 of the Labor Code as remuneration or earnings; capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece or commission basis. Pulp etc. v NLRC, 279 SCRA 408 (1997) In the absence of wage rates based on time and motion studies determined by the labor secretary or submitted by the employer to the labor secretary for his approval, wage rates of piece-rate workers must be based on the applicable daily minimum wage determined by the Regional Tripartite Wages and Productivity Commission.
122
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Wage Distortion • A situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. • CAUSE: Implementation of a wage order increase prescribe minimum wage rate • RESULT: o Elimination or severe contraction of intentional quantitative wages/salary rates between or among employees o Effectively obliterates distinctions on wage structure which was based on skills, length of service or other logical differences. • PROCEDURE FOR SETTLEMENT: o Organized Establishment CBA Grievance Procedure Voluntary Arbitration o Unorganized Establishment ER and EE, with aid of National Conciliation Mediation Board (NCMB) settles conciliation mediation NLRC—Compulsory Arbitration • Both ER and EE cannot use economic weapons because the law has provided for a procedure for settling • Cases say that— o Parties are encouraged to settle the dispute voluntarily. o Neither party can use economic weapons o Original decree of differential cannot be restored o NLRC has NO authority to impose directly or indirectly under guise of rectifying a wage distortion upon the employer a new scheme of classification Cases P.I. Manufacturing Inc v P.I. Manufacturing etc, 543 SCRA 110 (2008) R.A. No. 6727, otherwise known as the Wage Rationalization Act, explicitly defines "wage distortion" as: x x x a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation.
NIKKI HIPOLITO
NOTES
Otherwise stated, wage distortion means the disappearance or virtual disappearance of pay differentials between lower and higher positions in an enterprise because of compliance with a wage order. Bankard Employees Union etc. v NLRC, 423 SCRA 148 (2004) Wage distortion is a factual and economic condition that may be brought about by different causes. In Metro Transit, the reduction or elimination of the normal differential between the wage rates of rank-and-file and those of supervisory employees was due to the granting to the former of wage increase, which was, however, denied to the latter group of employees. The mere factual existence of wage distortion does not, however, ipso facto result to an obligation to rectify it, absent a law or other source of obligation which requires its rectification. Prubankers Assn. v Prudential Bank and Co., 302 SCRA 74 (1999) Wage distortion involves four elements: • An existing hierarchy of positions with corresponding salary rates. • A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one. • The elimination of the distinction between the two levels. • The existence of the distortion in the same region of the country. National Federation of Labor v NLRC, 234 SCRA 311 (1994) The concept of wage distortion assumes an existing grouping or classification of employees, which establishes distinctions among such employees on some relevant or legitimate basis. The remedy in Art. 124 of the Labor Code, for a wage distortion consisted of negotiations between ER and EEs for the rectification of the distortion by re-adjusting the wage rates of the differing classes of employees. As a practical matter, this ordinarily meant a wage increase for one or more of the affected classes of employees so that some gap or differential would be re-established. There was no legal requirement that the historical gap which existed before the implementation of the Wage Orders be restored in precisely the same form or amount. Associated Labor Union v NLRC, 235 SCRA 395 (1994) The law recognizes the validity of negotiated wage increases wage distortions. The legislative intent is to encourage the seek solution to the problem of wage distortions through negotiation or arbitration, rather than strikes, lockouts, concerted activities of the employees or management.
to correct parties to voluntary or other
123
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
9.23 Effect on Benefits ART. 100: Prohibition against elimination or diminution of benefits. Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code. Cases Prubankers Assn. v Prudential Bank and Co., 302 SCRA 74 (1999) Petitioner insists that the Bank has adopted a uniform wage policy, which has attained the status of an established management practice; thus, it is estopped from implementing a wage order for a specific region only. We are not persuaded. Said nationawide uniform wage policy of the Bank had been adopted prior to the enactment of RA 6727. After the passage of said law, the Bank was mandated to regionalize its wage structure. Although the Bank implemented Wage Order Nos. NCR-01 and NCR-02 nationwide instead of regionally even after the effectivity of RA 6727, the Bank at the time was still uncertain about how to follow the new law, in any event, that single instance cannot be constitutive of “management practice.” Arco Metal etc v Samahan etc, 554 SCRA 110 (2008) There is no doubt that in order to be entitled to the full monetization of sixteen (16) days of vacation and sick leave, one must have rendered at least one year of service. The clear wording of the provisions does not allow any other interpretation. Anent the 13th month pay and bonus, we agree with the findings of Mangabat that the CBA provisions did not give any meaning different from that given by the law, thus it should be computed at 1/12 of the total compensation which an employee receives for the whole calendar year. The bonus is also equivalent to the amount of the 13th month pay given, or in proportion to the actual service rendered by an employee within the year. Night shift differential on a normal day (10PM-6AM) Overtime on a normal day Work on any regular holiday, not exceeding 8 hours Work on any regular holiday which falls on a scheduled rest day, not exceeding 8 hours Overtime on a regular holiday Overtime on a regular holiday which falls on the scheduled rest day
110% 125% 200%
SECTION 10. WOMEN WORKERS 10.01 Women and the Constitution ART. II, SEC. 14 The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. Women Workers Cases Phil. Telegraph and Telephone Co. v NLRC, 272 SCRA 596 (1997) PT&Ts policy of not accepting or considering as qualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Contrary to petitioner’s assertion that it dismissed respondent from employment on account of her dishonesty, the record clearly shows that her ties with the company were dissolved principally because of the company’s policy that married women are not qualified for employment in PT&T, and not merely of her supposed act of dishonesty. The company’s policy is not only in derogation of Art. 136 of the Labor Code on the right of a woman to be free from any kind of stipulation against marriage in connection with her employment, but it likewise assaults good morals and public policy, tending as it does to deprive a woman of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable right. Carried to its logical consequences, it may even be said that petitioner’s policy against legitimate marital bonds would encourage illicit or common law relations and subvert the sacrament of marriage. 10.02 Coverage BOOK III, RULE XIII, SEC. 1, Omnibus Rules General Rule: Applies to all employees, whether operating for profit or not, including educational, religious and charitable institutions
230%
Except: 1. Government 2. GOCCs 3. Employers of household helpers and persons in their personal service insofar as such workers are concerned
260%
10.03 Prohibited Acts
230%
ART. 130: Nightwork prohibition. - No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation: NIKKI HIPOLITO
124
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
(a) In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning of the following day; or (b) In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’clock in the morning of the following day; or (c) In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours. ART. 131: Exceptions. - The prohibitions prescribed by the preceding Article shall not apply in any of the following cases: (a) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety; (b) In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer; (c) Where the work is necessary to prevent serious loss of perishable goods; (d) Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services; (e) Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers; (f) Where the women employees are immediate members of the family operating the establishment or undertaking; and (g) Under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations. ART. 135: Discrimination prohibited. - It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. The following are acts of discrimination: (a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and (b) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. Criminal liability for the willful commission of any unlawful act as provided in this Article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely NIKKI HIPOLITO
NOTES
separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (As amended by Republic Act No. 6725, May 12, 1989). ART. 136: Stipulation against marriage. - It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. ART. 137: Prohibited acts. - (a) It shall be unlawful for any employer: (1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code. (2) To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy; (3) To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant. 10.04 Facilities ART. 132: Facilities for women. - The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to: (a) Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency; (b) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; (c) To establish a nursery in a workplace for the benefit of the women employees therein; and (d) To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. ART. 134: Family planning services; incentives for family planning. - (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices.
125
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
(b) In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise.
NOTES
•
PATERNITY LEAVE (RA 8187)
Every MARRIED male employee in the private and public sectors shall be entitled to a paternity leave of 7 days with full pay for the first 4 deliveries of the legitimate spouse with whom he is cohabiting
10.05 Special Classification, Special Women Workers ART. 138: Classification of certain women workers . - Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation. 10.06 Maternity Leave and Paternity Leave •
MATERNITY LEAVE
A female employee who has paid at least 3 monthly contributions in the 12month period immediately preceding the semester of her childbirth, or miscarriage, shall be paid a daily maternity benefit equivalent to 100% of her average salary credit for 60 days or 78 days in case of caesarean delivery subject to the following conditions: 1. 2. 3. 4. 5. 6.
That the employee notifies the employer of her pregnancy and probable date of her childbirth which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide That full payment shall be advanced by the employer within 30 days from the filing of the maternity leave application That payment of daily maternity benefits shall be bar to the recovery of sickness benefits provided by this Act for the same period for which daily maternity benefits have been received That maternity benefits provided shall be paid only for the first 4 deliveries or miscarriages That SSS shall reimburse the employer of 100% of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof That if the employee should give birth or suffer miscarriage without the required contributions having been remitted for her by her employer to the SSS or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to
NIKKI HIPOLITO
-
The male employee applying for paternity leave shall notify his employer of the pregnancy of his LEGITIMATE spouse and the expected date of such delivery DELIVERY includes miscarriages
10.07 Sexual Harassment (RA 7877, 1995) Policy SEC. 2: Declaration of Policy. – The State shall value the dignity of every individual, enhance the development of it human resources, guarantee full respect for human rights, and uphold the dignity of workers, employees, applicants for employment, students or those undergoing training, instruction or education. Towards this end, all forms of sexual harassment in the employment, education or training environment are hereby declared unlawful. Work Related Environment SEC. 3: Work, Education or Training-related Sexual Harassment Defined. – Work, education or training-related sexual harassment is committed by an employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. SEC. 3(A): In a work-related harassment is committed when:
or
employment
environment,
sexual
(1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee’s rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.
126
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Education or Training-Related Environment SEC. 3: Work, Education or Training-related Sexual Harassment Defined. – Work, education or training-related sexual harassment is committed by an employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.
NOTES
(b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with other officers and employees, teachers, instructors, professors, coaches, trainors and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of the alleged cases constituting sexual harassment. In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees.
SEC. 3 (B): In an education or training environment, sexual harassment is committed: (1) Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or considerations; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act. Duty Employer (SEC. 4) 1. To prevent or deter the commission of acts of sexual harassment 2. To provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. The employer or head of office shall: (a) Promulgate appropriate rules and regulations in consultation with the jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation or sexual harassment cases and the administrative sanctions therefor. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued pursuant to this section (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions. NIKKI HIPOLITO
In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, teachers, instructors, professors or coaches and students or trainees, as the case maybe. "The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. Liability Employer (SEC. 5) The employer or head of office, educational or training institution shall be SOLIDARILY LIABLE for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken thereon. Remedies SEC. 6: Independent Action for Damages • The victim of work, education or training-related sexual harassment can institute a separate and independent action for damages and other affirmative relief SEC. 7: Penalties • Violations of this Act shall be penalized by imprisonment of not less than 1 month nor more than 6 months, or a fine of not less than P10,000 nor more than P20,000 or both such fine and imprisonment at the discretion of the court • Prescription: 3 YEARS
Cases
127
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
Bacsin v Wahiman, 553 SCRA 137 (2008) In grave misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule must be manifest. The act of petitioner of fondling one of his students is against a law, RA 7877, and is doubtless inexcusable. The particular act of petitioner cannot in any way be construed as a case of simple misconduct. Sexually molesting a child is, by any norm, a revolting act that it cannot but be categorized as a grave offense. Parents entrust the care and molding of their children to teachers, and expect them to be their guardians while in school. Petitioner has violated that trust. The charge of grave misconduct proven against petitioner demonstrates his unfitness to remain as a teacher and continue to discharge the functions of his office.
dismissal for lack or trust and confidence. It is the right, nay the duty of every employer to protect its employees from oversexed superiors.
Domingo v Rayala, 546 SCRA 90 (2008) Basic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others. This rule applies with full force to sexual harassment.
11.02 Law (RA 7610)—Child Abuse
The law penalizing sexual harassment in our jurisdiction is RA 7877. Section 3 thereof defines work-related sexual harassment and, in relation to Section 7 on penalties, defines the criminal aspect of the unlawful act of sexual harassment. The same section, in relation to Section 6, authorizes the institution of an independent civil action for damages and other affirmative relief. The CA, thus, correctly ruled that Rayala’s culpability is not to be determined solely on the basis of Section 3, RA 7877, because he is charged with the administrative offense, not the criminal infraction, of sexual harassment. Phil. Aelous Automotive United Corp. v NLRC, 331 SCRA 237 (2000) The gravamen of the offense in sexual harassment is not the violation of the employee’s sexuality but the abuse of power by the employer. Any employee, male or female, may rightfully cry “foul” provided the claim is well substantiated. Strictly speaking, there is no time period within which he or she is expected to complain through the proper channels. The time to do so may vary depending upon the needs, circumstances and more importantly, emotional threshold of the employee.
SECTION 11. MINORS 11.01 Minors and the Constitution ART. II, SEC. 13 The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
POLICY 1. To provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development 2. To provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and discrimination 3. To intervene (the State) on behalf of the child when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same 4. To protect and rehabilitate children gravely threatened or endangered by circumstances, which affect or will affect their survival and normal development and over which they have no control 5. The best interests of children shall be the paramount consideration in all actions concerning them, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, and legislative bodies, consistent with the principle of First Call for Children as enunciated in the United Nations Convention of the Rights of the Child. Every effort shall be exerted to promote the welfare of children and enhance their opportunities for a useful and happy life
Libres v NLRC, 307 SCRA 675 (1999) As a managerial employee, petitioner is bound by more exacting work ethics. He failed to live up to his higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetuated against his subordinate, he provides a justifiable ground for his
NIKKI HIPOLITO
128
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
DEFINITION OF TERMS CHILDREN Below 18 years old Those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition CHILD ABUSE Maltreatment, whether habitual or not, of the child which includes any of the following o Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment o Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being o Unreasonable deprivation of his basic needs for survival, such as food and shelter o Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death CIRCUMSTANCES WHICH GRAVELY THREATEN OR ENDANGER THE SURVIVAL AND NORMAL DEVELOPMENT OF CHILDREN Being in community where there is armed conflict or being affected by armed conflict-related activities Working under conditions hazardous to life, safety and morals which unduly interfere with their normal development Living in or fending for themselves in streets of urban or rural areas without the care of parents, or a guardian or any adult supervision needed for their welfare Being a member of an indigenous cultural community and/or living under conditions of extreme poverty or in an area which is underdeveloped and/or lacks or has inadequate access to basic services needed for a good quality of life Being a victim of man-made or natural disaster or calamity Circumstances analogous to those above-stated which endanger the life, safety or normal development of children COMPREHENSIVE PROGRAM AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION Refers to the coordinated program of services and facilities to protected children against: (1) Child Prostitution and other sexual abuse; (2) Child trafficking; (3) Obscene publications and indecent shows; NIKKI HIPOLITO
NOTES
(4) Other acts of abuses; and (5) Circumstances which threaten or endanger the survival and normal development of children WORKING CHILDREN General Rule: Children below 15 years of age shall NOT be employed. Exceptions 1. Works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed, provided: a. His employment neither endangers his life, safety, health and morals, nor impairs his normal development b. Parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education 2. Child’s employment or participation in public and entertainment or information through cinema, theater, radio or TV is essential, provided: a. Employment contract is concluded by the child’s parents or guardian, with the express agreement of the child concerned, if possible b. Approval of DOLE c. Requirement to be complied with: i. Employer shall ensure the protection, health and safety and morals of the child ii. Employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time iii. Employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child Employer shall first secure, before engaging such child, a work permit from DOLE which shall ensure observance of the above requirements. NON-FORMAL EDUCATION FOR WORKING CHILDREN The Department of Education, Culture and Sports shall promulgate a course design under its non-formal education program aimed at promoting the intellectual, moral and vocational efficiency of working children who have not undergone or finished elementary or secondary education. Such course design shall integrate the learning process deemed most effective under given circumstances.
129
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
PROHIBITION ON THE EMPLOYMENT OF CHILDREN IN CERTAIN ADVERTISEMENTS No employment of child models in all commercial advertisements promoting: 1. Alcoholic beverages 2. Intoxicating drinks 3. Tobacco and its by-products 4. Violence DUTY OF EMPLOYER Every employer shall comply with the duties provided for in Articles 108 and 109 of PD 603. • To submit report • To register children PENALTIES Any person who shall violate any provision of this Article shall suffer the penalty of a fine of not less than One thousand pesos (P1,000) but not more than Ten thousand pesos (P10,000) or imprisonment of not less than three (3) months but not more than three (3) years, or both at the discretion of the court; Provided, That, in case of repeated violations of the provisions of this Article, the offender's license to operate shall be revoked. 11.03 Discrimination ART. 140: No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age.
SECTION 12. HOUSEHELPERS 12.01 Coverage (ART. 141) Coverage: All persons rendering services in households for compensation. 12.02 Househelpers (ART. 141) "Domestic or household service" shall mean service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers. 12.03 Non-Household Work Assignment (ART. 145) No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein. NIKKI HIPOLITO
NOTES
Cases Barcenas v NLRC, 187 SCRA 498 (1990) The work that petitioner performed in the temple could not be categorized as mere domestic work. The petitioner attended to the visitors, mostly Chinese, who came to pray or seek advice before Buddha for personal or business problems; arranged meetings between these visitors and Su and supervised the preparation of the food for the temple visitors; acted as tourist guide of foreign visitors; acted as liaison with some government offices; and made the payment for the temple’s Meralco, MWSS and PLDT bills. Indeed, these tasks may NOT be deemed activities of a household helper. They were essential and important to the operation and religious functions of the temple. Apex Mining Co. v NLRC, 196 SCRA 251 (1991) The term “househelper” is synonymous to the term “domestic servant” and shall refer to any person, whether male or female, who renders services in and about the employer’s home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer’s family. 12.04 Conditions Employment Contract for Domestic Service (ART. 142) The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties. Minimum Wage (ART. 143) (1) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities; (2) Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and (3) Five hundred fifty pesos (P550.00) a month for those in other municipalities. Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder.
130
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Minimum Cash Wage (ART. 144) The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance. Assignment to Non-Household Work (ART. 145) No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein. Opportunity for Education (ART. 146) If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper’s compensation, unless there is a stipulation to the contrary. Treatment of Household Helpers (ART. 147) The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper. Board, Lodging and Medical Attendance (ART. 148) The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance. Indemnity for Unjust Termination of Services (ART. 149) If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity. If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days. Service of Termination Notice (ART. 150) If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service. Employment Certification (ART. 151) Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.
NOTES
the latter shall authenticate by signature or thumbmark upon request of the employer. Cases Ultra Villa Food Haus v Geniston, 309 SCRA 17 (1999) “Domestic or household service” shall mean services in the employers home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employers household, including services of family drivers. (Underscoring supplied.) Chapter III, Title III, Book III, however, is silent on the grant of overtime pay, holiday pay, premium pay and service incentive leave to those engaged in the domestic or household service. Moreover, the specific provisions mandating these benefits are found in Book III, Title I of the Labor Code, and Article 82, which defines the scope of the application of these provisions, expressly excludes domestic helpers from its coverage: Art. 82. Coverage. - The provision of this title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. (Underscoring supplied.) The limitations set out in the above article are echoed in Book III of the Omnibus Rules Implementing the Labor Code. Clearly then, petitioner is not obliged by law to grant private respondent any of these benefits. Employing the same line of analysis, it would seem that private respondent is not entitled to13 month pay. The Revised Guidelines on the Implementation of the 13th Month Pay Law also excludes employers of household helpers from the coverage of Presidential Decree No. 851. Nevertheless, we deem it just to award private respondent 13th month pay in view of petitioner’s practice of according private respondent such benefit. Indeed, petitioner admitted that she gave private respondent 13th month pay every December.
Employment Records (ART. 152) The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which NIKKI HIPOLITO
131
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
SECTION 13. HOMEWORKERS 13.01 Coverage and Regulation REGULATIONS OF INDUSTRIAL HOMEWORK The employment of industrial homeworkers and field personnel shall be regulated by the Government through appropriate regulations issued by the Secretary of DOLE to ensure the general welfare and protection of homeworkers and field personnel and the industries employing them. REGULATIONS OF DOLE SECRETARY The regulations or orders to be issued pursuant to this Chapter shall be designed to assure the minimum terms and conditions of employment applicable to the industrial homeworkers or field personnel involved. COVERAGE Applies to any person who performs industrial homework for an employer, contractor or subcontractor Industrial Homework A system of production under which work for an employer or contractor is carried out by a homework at his/her home Materials may or may not be furnished by the employer or contractor 13.02 Employer Includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, sub-contractor or any other person: o Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or o Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person.
SECTION 14. TERMINATION OF EMPLOYMENT A. GENERAL CONCEPTS 14.01 Security of Tenure General Rule: In case of regular employment, the employer shall NOT terminate the services of an employee (ART. 279) NIKKI HIPOLITO
NOTES
Exception: 1. Termination for just cause 2. Termination authorized by this Title If employee is unjustly dismissed, he is entitled to: 1. Reinstatement: without loss of seniority privileges, AND 2.
rights
and
other
Full Backwages: inclusive of allowances and other benefits or their monetary equivalent computed from the time compensation was withheld up to the time of actual reinstatement
The entitlement of workers to SECURITY OF TENURE is recognized in Art. XIII, Sec. 3 of the Constitution. A. Nature of Security of Tenure a. Right guaranteed by the Constitution b. NOT an absolute right c. Qualified by the Doctrine of Strained Relations d. Does NOT give employee an absolute right to his position Cases Sonza v ABS-CBN, 431 SCRA 583 (2004) For violation of any provision of the Agreement, either party may terminate their relationship. SONZA failed to show that ABS-CBN could terminate his services on grounds other than breach of contract, such as retrenchment to prevent losses as provided under labor laws. During the life of the Agreement, ABS-CBN agreed to pay SONZA’s talent fees as long as "AGENT and Jay Sonza shall faithfully and completely perform each condition of this Agreement." Even if it suffered severe business losses, ABS-CBN could not retrench SONZA because ABS-CBN remained obligated to pay SONZA’s talent fees during the life of the Agreement. This circumstance indicates an independent contractual relationship between SONZA and ABS-CBN. SONZA admits that even after ABS-CBN ceased broadcasting his programs, ABS-CBN still paid him his talent fees. Plainly, ABS-CBN adhered to its undertaking in the Agreement to continue paying SONZA’s talent fees during the remaining life of the Agreement even if ABS-CBN cancelled SONZA’s programs through no fault of SONZA. SONZA assails the Labor Arbiter’s interpretation of his rescission of the Agreement as an admission that he is not an employee of ABS-CBN. The Labor Arbiter stated that "if it were true that complainant was really an employee, he would merely resign, instead." SONZA did actually resign from ABS-CBN but he also, as president of MJMDC, rescinded the Agreement.
132
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
SONZA’s letter clearly bears this out. However, the manner by which SONZA terminated his relationship with ABS-CBN is immaterial. Whether SONZA rescinded the Agreement or resigned from work does not determine his status as employee or independent contractor. UST Faculty Union v Bitonio, Jr. (G.R. No. 131235. November 16, 1999) Self-organization is a fundamental right guaranteed by the Constitution and the Labor Code. Corollary to this right is the prerogative not to join, affiliate with or assist a labor union. Therefore, to become a union member, an employee must not only signify the intent to become one, but also take some positive steps to realize that intent. The procedure for union membership is usually embodied in the union’s CBL. An employee who becomes a union member acquires the rights and he concomitant obligations that go with the new status and becomes bound by the union’s rules and regulations. Quijano v Bartolabac, 480 SCRA 204 (2006) Our Constitution mandates that no person shall be deprived of life, liberty, and property without due process of law. It should be borne in mind that employment is considered a property right and cannot be taken away from the employee without going through legal proceedings. In the instant case, respondents wittingly or unwittingly dispossessed complainant of his source of living by not implementing his reinstatement. In the process, respondents also run afoul of the public policy enshrined in the Constitution ensuring the protection of the rights of workers and the promotion of their welfare. Tolentino v NLRC, 152 SCRA 717 (1987) Security of tenure is a right of paramount value as recognized and guaranteed under our new constitution. The state shall afford full protection to labor, . . . and promote full employment and equality of employment opportunities for all. It shall guarantee the right of all workers to . . . security of tenure. . . . (Sec. 3 Art. XIII on Social Justice and Human Rights, 1987 Constitution of the Republic of the Philippines.) Such Constitutional Right should not be denied on mere speculation of any similar unclear and nebulous basis. Philips Semiconductors etc v Fadriquela, 427 SCRA 408 (2004) Under Section 3, Article XVI of the Constitution, it is the policy of the State to assure the workers of security of tenure and free them from the bondage of uncertainty of tenure woven by some employers into their contracts of employment. The guarantee is an act of social justice. When a person has no property, his job may possibly be his only possession or means of livelihood and those of his dependents. When a person loses his job, his dependents suffer as well. The worker should therefor be protected and insulated against any arbitrary deprivation of his job. NIKKI HIPOLITO
NOTES
B. Importance of Employment Employment Cases Gonzales v NLRC, 313 SCRA 169 (1999) Employment is not merely a contractual relationship; it has assumed the nature of property right. It may spell the difference whether or not a family will have food on their table, roof over their heads and education for their children. It is for this reason that the State has taken up measures to protect employees from unjustified dismissals. It is also because of this that the right to security of tenure is not only a statutory right but, more so, a constitutional right. C. State Regulation—Rationale Rationale Cases Euro-Linea Phils. Inc v NLRC, 156 SCRA 78 (1987) Although a probationary or temporary employee has a limited tenure, he still enjoys the constitutional protection of security of tenure. During his tenure of employment or before his contract expires, he cannot be removed except for cause as provided for by law. Private respondent had been a shipping expediter for more than one and a half years before he was absorbed by petitioner. It therefore appears that the dismissal in question is without sufficient justification. In the instant case, it is evident that the NLRC correctly applied Article 282 in the light of the foregoing and that its resolution is not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion or lack of jurisdiction (Rosario Brothers Inc. v. Ople, 131 SCRA 73 [1984]). D. Coverage (ART. 278) To ALL establishments or undertakings, whether for profit or not Contract Employee Cases Labajo v Alejandro, 165 SCRA 747 (1988) As probationary and contractual employees, private respondents enjoyed security of tenure, but only to a limited extent — i.e., they remained secure in their employment during the period of time their respective contracts of employment remained in effect. That temporary security of tenure, however, ended the moment their employment contracts expired and petitioners declined to renew the same for the next succeeding school year. Consequently, as petitioners were not under obligation to renew those contracts of employment, the separation of private respondents in this case cannot be said to have been without justifiable cause, much less illegal.
133
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Probationary Employee Cases Skillworld Management and Marketing Corp v NLRC, 186 SCRA 465 (1990) While it may be true that Manuel was a probationary employee at the time of his dismiss he may not be dismissed without cause. This is settled in the caws of Manila Hotel Corporation v. NLRC and Renato L. G.R. No. 53453, January 22, 1986 and in the case of Alga Mother International Placement Services v. Hon. D. Atienza, et .al., G.R. Nos. 74610-11, September 30, 1988 where We held — There is no dispute that as a probationary employee, private respondent had but a limited tenure. Although on probationary basis, however, Cruz still enjoys the constitutional protection on security of tenure. During his tenure of employment therefore, or before his contract expires, respondent Cruz cannot be removed except for cause as provided for by law. Managerial Employee Cases Inter-Orient Maritime Enterprises v NLRC, 235 SCRA 268 (1994) It is well settled in this jurisdiction that confidential and managerial employees cannot be arbitrarily dismissed at any time, and without cause as reasonably established in an appropriate investigation.15 Such employees, too, are entitled to security of tenure, fair standards of employment and the protection of labor laws. E. Management Rights and Security of Tenure • Requisites o Exercised in good faith for the advancement of the employer’s interests o NOT for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements Management Rights and Security of Tenure Cases Collegio de San Juan de Letran v Assn of Employees, 340 SCRA 587 (2000) The dismissal must be made pursuant to the tenets of equity and fair play; wherein the employer’s right to terminate the services of an employee must be exercised in good faith; furthermore, it must not amount to interfering with, restraining or coercing employees in their right to self- organization. The factual backdrop of the Ambas’ termination reveals that such was done in order to strip the union of a leader. Admittedly, management has the prerogative to discipline its employees for insubordination. But when the exercise of such management right tends to interfere with the employees’
NIKKI HIPOLITO
NOTES
right to self-organization, it amounts to union-busting and is therefore a prohibited act. San Miguel Brewery etc v Ople, 170 SCRA 25 (1989) San Miguel’s offer to compensate the members of its sales force who will be adversely affected by the implementation of the CDS, by paying them a so called “back adjustment commission” to make up for the commissions they might lose as a result of the CDS, proves the company’s good faith and lack of intention to bust their union. So long as a company’s prerogatives are exercised in good faith for the advancement of the employer’s interest & not for the purpose of defeating or circumventing the rights of the employees under special laws / under valid agreements, the Supreme Court will uphold them. F.
Guidelines on Imposition of Penalties a. Must NOT be exercised wantonly, but must be controlled by SUBSTANTIVE DUE PROCESS and tempered by the fundamental policy of protection to labor b. Penalty must be commensurate with the act, conduct or omission c. Policies, rules and regulations on work-related activities must be FAIR and REASONABLE d. Employers are allowed a wider latitude of discretion in terminating the employment of managerial personnel or those of similar rank performing functions which require the employer’s trust and confidence than in ordinary rank-andfile employees e. Substantial proof is sufficient as basis for the imposition of any disciplinary action upon the employee
Cases Central Pangasinan Electric Corp v NLRC, 528 SCRA 146 (2007) Section 7, Rule I, Book VI of the Omnibus Rules Implementing the Labor Code provides that when the employee is dismissed for any of the just causes under . If the cause for the termination of employment cannot be considered as one of mere inefficiency or incompetence but an act that constitutes an utter disregard for the interest of the employer or a palpable breach of trust in him, the grant by the Court of separation benefits is hardly justifiable. In this case, private respondent was found by the Labor Arbiter and the NLRC to have been validly dismissed for violations of company rules, and certain acts tantamount to serious misconduct. Such findings, if supported by substantial evidence, are accorded respect and even finality by this Court.
134
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
The fact that private years with no negative record prior to his dismissal, in our view of this case, does not call for such award of benefits, since his violation reflects a regrettable lack of loyalty and worse, betrayal of the company. If an employee's length of service is to be regarded as a justification for moderating the penalty of dismissal, such gesture will actually become a prize for disloyalty, distorting the meaning of social justice and undermining the efforts of labor to cleanse its ranks of undesirables. Marivel Trading Inc v NLRC, 525 SCRA 208 (2007) For misconduct or improper behavior to be a just cause or dismissal, (a) it must be serious, (b) must relate to the performance of the employee's duties, and (c) must show that the employee has become unfit to continue working for the employer. In this case, the acts complained of, under the circumstances they were done, did not in any way pertain to Abella's duties as chemist/quality controller. Moreover, Abella did not make false and malicious statements against her superior. Her remarks were neither insulting nor offensive. Her acts did not constitute serious misconduct as to justify her dismissal. Under Article 279 of the Labor Code, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, and to the payment of his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent, computed from the time his compensation was withheld from him up to the time of his actual reinstatement. These remedies give life to the worker’s constitutional right to security of tenure.As regards backwages, it must be stressed Associated Labor Unions-TUCP v NLRC, 302 SCRA 708 (1999) There is no question that the employer has the inherent right to discipline, including that of dismissing its employees for just causes. This right is, however, subject to reasonable regulation by the State in the exercise of its police power. The finding of the NLRC that an employee violated the company rules and regulations is subject to scrutiny by the Court to determine if the dismissal is justified and, if so, whether the penalty imposed is commensurate to the gravity of his offense. In this case, we agree with the Labor Arbiter that dismissal would be proportionate to the gravity of the offense committed by petitioner considering the value of the articles he pilfered and the fact that he had no previous derogatory record during his two (2) years of employment in the company. The Labor Arbiter is certainly mistaken in regarding the articles taken to be mere scraps and hence without value to the company. They were of some value but not enough to warrant dismissal. Moreover, it should also be taken into account that petitioner is not a managerial or confidential employee in whom greater trust is placed by management and from whom greater fidelity to duty is correspondingly NIKKI HIPOLITO
NOTES
expected. It is easy to see why an unfaithful employee who is holding a position of trust and confidence in a company poses a greater danger to its security than a mere clerk or machine operator like petitioner. PLDT v NLRC, 303 SCRA 9 (1999) Dismissal is the ultimate penalty and should not be imposed if the employee has been in service for a considerable length of time and has not been the recipient of any disciplinary actions. Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal. This interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided for in Article 4 of the Labor Code which states that “all doubts in the implementation and interpretation of the provisions of the Labor Code including its implementing rules and regulations shall be resolved in favor of labor. Gabriel is not entirely faultless. As a supervisor, he is required to act judiciously and to exercise his authority in harmony with PLDT’s policies. When he jeopardized the status of the rank and file employees whom he ordered to by-pass the standard operating procedures of the company, to the detriment of his employer, he was not entirely blameless. The irregularity attributable to him could not be disregarded. He must not be rewarded, in fairness to the employer’s own legitimate concerns such as company morale and discipline. Dismissal as Penalty Cases Philips Semiconductors etc v Fadriquela, 427 SCRA 408 (2004) Dismissal is the ultimate penalty that can be meted to an employee. Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal from employment. For, the Constitution guarantees the right of workers to "security of tenure." The misery and pain attendant to the loss of jobs then could be avoided if there be acceptance of the view that under certain circumstances of the case the workers should not be deprived of their means of livelihood. Of course, the power to dismiss is a formal prerogative of the employer. However, this is not without limitations. The employer is bound to exercise caution in terminating the services of his employees. Dismissals must not be arbitrary and capricious. Due process must be observed in dismissing an employee because it affects not only his position but also his means of livelihood. Employers should respect and protect the rights of their employees which include the right to labor.
135
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Central Pangasinan Electric Corp. v Macaraeg, 395 SCRA 720 (2003) Article 282(c) of the Labor Code allows an employer to dismiss employees for willful breach of trust or loss of confidence. Proof beyond reasonable doubt of their misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that they are responsible for the misconduct and their participation therein rendered them unworthy of the trust and confidence demanded of their position. The acts of the respondents were clearly inimical to the financial interest of the petitioner. During the investigation, they admitted accommodating Evelyn Joy Estrada by encashing her checks from its funds for more than a year. They did so without petitioner’s knowledge, much less its permission. There was willful breach of trust on the respondents’ part, as they took advantage of their highly sensitive positions to violate their duties. The acts of the respondents caused damage to the petitioner. During those times the checks were illegally encashed, petitioner was not able to fully utilize the collections, primarily in servicing its debts. It is not material that they did not “misappropriate any amount of money, nor incur any shortage relative to the funds in their possession.” The basic premise for dismissal on the ground of loss of confidence is that the employees concerned hold positions of trust. The betrayal of this trust is the essence of the offence for which an employee is penalized. The respondents held positions of utmost trust and confidence. As teller and cashier, respectively, they are expected to possess a high degree of fidelity. They are entrusted with a considerable amount of cash. Respondent de Vera accepted payments from petitioner’s consumers while respondent Macaraeg received remittances for deposit at petitioner’s bank. They did not live up to their duties and obligations. Golden Thread Knitting Industries Inc v NLRC, 304 SCRA 568 (1999) Dismissal is the ultimate penalty that can be meted to an employee. It must therefore be based on a clear and not on an ambiguous or ambivalent ground. With regard to the case involving slashing of towels, the employees were not given procedural due process. There was no notice and hearing, only outright denial of their entry to the work premises by the security guards. The charges of serious misconduct were not sufficiently proved. With regard to the employees dismissed for redundancy, there was also NIKKI HIPOLITO
NOTES
denial of procedural due process. Hearing and notice were not observed. Thus, although the characterization of an employee’s services is a management function, it must first be proved with evidence, which was not done in this case. the company cannot merely declare that it was overmanned. With regard to the employee dismissed for disrespect, the SC believed the story version of the company (which essentially said that the personnel manager was threatened upon mere service of a suspension order to the employee), but ruled that the dismissal could not be upheld. “The dismissal will not be upheld where it appears that the employee’s act of disrespect was provoked by the employer. xxx the employee hurled incentives at the personnel manager because she was provoked by the baseless suspension imposed on her. The penalty of dismissal must be commensurate with the act, conduct, or omission to the employee.” The dismissal was too harsh a penalty; a suspension of 1 week would have sufficed. “GTK exercised their authority to dismiss without due regard to the provisions of the Labor Code. The right to terminate should be utilized with extreme caution because its immediate effect is to put an end to an employee's present means of livelihood while its distant effect, upon a subsequent finding of illegal dismissal, is just as pernicious to the employer who will most likely be required to reinstate the subject employee and grant him full back wages and other benefits.” Cebu Filveneer Corp v NLRC, 286 SCRA 556 (1998) Due to its far-reaching implications, our Labor Code decrees that an employee cannot be dismissed, except for the most serious causes. Article 282 enumerates the causes for which the employer may terminate an employee. Company says it’s loss of trust. The SC said that Villaflor’s omission cannot be described as “willful” to justify dismissal. A breach is willful if it is done intentionally, knowingly and purposely. Petitioners merely proved the omission of the private respondent but there is no evidence whatsoever that it was done intentionally. Company says she’s grossly or habitually negligent in the performance of her duties. The SC said that since she has not been remiss in the performance of her duties in the past, she can’t be charged with habitual negligence. Neither is her negligence gross in character. Gross negligence implies a want or absence of or failure to exercise slight care or diligence or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. She had not the
136
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
slightest reason to distrust Kun because he was the GM and appears to have conducted himself well in the performance of his duties in the past. At most, it’s error of judgment, not gross negligence. G. Rules—Managerial and Rank and File Employees Cases Salvador v Phil. Mining Service Corp., 395 SCRA 729 (2003) The settled rule in administrative and quasi-judicial proceedings is that proof beyond reasonable doubt is not required in determining the legality of an employer’s dismissal of an employee, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise. Thus, substantial evidence is the least demanding in the hierarchy of evidence. The Labor Code provides that an employer may terminate the services of an employee for just cause and this must be supported by substantial evidence. In the case at bar, our evaluation of the evidence of both parties indubitably shows that petitioner’s dismissal for loss of trust and confidence was duly supported by substantial evidence. As a general rule, employers are allowed wider latitude of discretion in terminating the employment of managerial employees as they perform functions which require the employer’s full trust and confidence.
NOTES
taken against him, as his act of pilferage reflects a regrettable lack of loyalty which he should have strengthened, instead of betrayed. Caoile v NLRC, 299 SCRA 76 (1998) It is sufficient that there is some basis for such loss of confidence, such as when the employer has reasonable ground to believe that the employee concerned is responsible for the purported misconduct, and the nature of his participation therein renders him unworthy of the trust and confidence demanded by his position; proof beyond reasonable doubt is NOT required. Loss of trust and confidence as a ground for valid dismissal requires proof of involvement in the alleged events in question, and that mere uncorroborated assertions and accusations by the employer will not suffice. B. TERMINATION OF EMPLOYMENT BY EMPLOYEE 14.02 Causes A. Just Causes (ART. 285 [b]) • Serious insult by the employer or his representative on the honor and person of the employee • Inhuman and unbearable treatment accorded the employee by the employer or his representative • Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate family members of his family • Other causes analogous to any of the foregoing NOTE: No written notice to employer required
To be sure, length of service is taken into consideration in imposing the penalty to be meted an erring employee. However, the case at bar involves dishonesty and pilferage by petitioner which resulted in respondent’s loss of confidence in him. Unlike other just causes for dismissal, trust in an employee, once lost is difficult, if not impossible, to regain. Moreover, petitioner was not an ordinary rank-and-file employee. He occupied a high position of responsibility. As foreman and shift boss, he had over-all control of the care, supervision and operations of respondent’s entire plant. It cannot be over-emphasized that there is no substitute for honesty for sensitive positions which call for utmost trust. Fairness dictates that respondent should not be allowed to continue with the employment of petitioner who has breached the confidence reposed on him. In the case at bar, respondent has every right to dismiss petitioner, a managerial employee, for breach of trust and loss of confidence as a measure of self-preservation against acts patently inimical to its interests. Indeed, in cases of this nature, the fact that petitioner has been employed with the respondent for a long time, if to be considered at all, should be
NIKKI HIPOLITO
B. Without Just Cause—Requisites • Employer to serve WRITTEN NOTICE on employer at least 1 month in advance • Effect of failure to serve notice—Employer may hold employee liable for damages C. Resignation Definition Cases Habana v NLRC, 298 SCRA 537 (1998) The voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to dissociate himself from his employment.
137
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
BMG Records v Aparecio, 532 SCRA 300 (2007) Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether in fact, he or she intended to sever from his or her employment. Requisites 1. Unconditional 2. Intention to relinquish a portion of the term of office accompanied by an act of relinquishment - No valid resignation where it was made without proper discernment 3. Voluntary 4. Acceptance of employer—necessary to make resignation effective - Resignations, once accepted and being the sole act of the employee, may not be withdrawn without the consent of the employer Cases Azcor Manufacturing v NLRC, 303 SCRA 26 (1999) To constitute a resignation, it must be UNCONDITIONAL and with the INTENT TO OPERATE AS SUCH. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. Metro Transit Organization v NLRC, 284 SCRA 308 (1998) An examination of the circumstances surrounding the submission of the letter indicates that the resignation was made without proper discernment so that it could not have been intelligently and voluntarily done. Voluntary Resignation Cases Globe Telecom v Crisologo, 329 SCRA 811 (2007) Resignation is the voluntary act of an employee who finds herself in a situation where she believes that personal reasons cannot be sacrificed in favor of the exigency of the service and that she has no other choice but to disassociate herself from employment. Employees resign for various reasons. A big salary is certainly no hindrance to a voluntary cessation of employment. Human resource studies reveal that various factors (in and out of the workplace) affect an employee’s employment decision. In this instance, respondent would have suffered a miscarriage had she continued to work. She obviously resigned for the sake NIKKI HIPOLITO
NOTES
of her child's well-being, motherhood clearly taking precedence over her job. Coercion exists when there is a reasonable or well-grounded fear of an imminent evil upon a person or his property or upon the person or property of his spouse, descendants or ascendants. No such situation existed in this case. As a matter of fact, respondent’s resignation letter and May 2, 2002 letter both contained expressions of gratitude. In her May 2, 2002 letter, she told petitioner Gonzales: I wish to express my appreciation for the training you readily gave me while I was under your supervision. In St. Michael Academy v. NLRC, we held that expressions of gratitude cannot possibly come from an employee who is just forced to resign as they belie allegations of coercion. Moreover, the May 2, 2002 letter was sent after respondent’s April 30, 2002 conversation with petitioner Gonzales. Indeed, if something untoward really took place in the course of that conversation, experience dictates that respondent would not have bothered to thank petitioner Gonzales. Therefore, respondent’s assertion that she was forced to resign was simply not true. Vicente v CA, 531 SCRA 244 (2007) From the totality of evidence on record, it was clearly demonstrated that respondent Cinderella has sufficiently discharged its burden to prove that petitioner’s resignation was voluntary. In voluntary resignation, the employee is compelled by personal reason(s) to disassociate himself from employment. It is done with the intention of relinquishing an office, accompanied by the act of abandonment. To determine whether the employee indeed intended to relinquish such employment, the act of the employee before and after the alleged resignation must be considered. Petitioner relinquished her position when she submitted the letters of resignation. The resignation letter submitted on February 15, 2000 confirmed the earlier resignation letter she submitted on February 7, 2000. The resignation letter contained words of gratitude, which can hardly come from an employee forced to resign. Phil. Wireless Inc v NLRC, 310 SCRA 653 (1999) Constructive dismissal is an involuntary resignation resorted to when continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank and/or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. In this case, the Court ruled that Lucila voluntarily resigned and was not
138
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
pressured into doing so. Voluntary resignation is defined as the act of en employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to disassociate himself from his employment. Lucila’s basis for his “demotion” is inadequate as the Court ruled that there is no demotion where there is no reduction in position rank or salary as a result of such transfer. Pascua v NLRC, 287 SCRA 554 (1998) Basic is the doctrine that resignation must be voluntary and made with the intention of relinquishing the office, accompanied with anact of relinquishment. Based on the evidence on record, we are more than convinced that Petitioners Lilia Pascua, Mimi Macanlalay, Susan C. De Castro and Violeta Soriano did not voluntarily quit their jobs. Rather, they were forced to resign or were summarily dismissed without just cause. Petitioners -- except Victoria L. Santos -- forthwith took steps to protest their layoff and thus cannot, by any logic, be said to have abandoned their work. In labor cases, the employer has the burden of proving that the dismissal was for a just cause; failure to show this, as in the instant case, would necessarily mean that the dismissal was unjustified and, therefore, illegal. To allow an employer to dismiss an employee based on mere allegations and generalities would place the employee at the mercy of his employer; and the right to security of tenure, which this Court is bound to protect, would be unduly emasculated. Considering the antecedents in the summary dismissals effected against Petitioners Pascua, Macanlalay, De Castro and Soriano, the causes asserted by private respondent are, at best, tenuous or conjectural; at worst, they are mere afterthoughts. Under the Labor Code, as amended, the dismissal of an employee which the employer must validate has a twofold requirement: one is substantive, the other procedural. Not only must the dismissal be for a just or an authorized cause as provided by law (Articles 282, 283 and 284 of the Labor Code, as amended); the rudimentary requirements of due process -- the opportunity to be heard and to defend oneself -- must be observed as well. Petitioners Pascua and Macanlalay’s acceptance of separation pay did not necessarily amount to estoppel; nor did it connote a waiver of their right to press for reinstatement, considering that such acceptance -- particularly by Petitioner Pascua who had to feed her four children -- was due to dire financial necessity. Azcor Manufacturing v NLRC, 303 SCRA 26 (1999) To constitute a resignation, it must be unconditional and with the intent to NIKKI HIPOLITO
NOTES
operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. In the instant case, the fact that Capulso signified his desire to resume his work when he went back to petitioner AZCOR after recuperating from his illness, and actively pursued his case for illegal dismissal before the labor courts when he was refused admission by his employer, negated any intention on his part to relinquish his job at AZCOR. Moreover, a closer look at the subject resignation letters readily reveals the following: (a) the resignation letter allegedly tendered by Capulso to Filipinas Paso was identically worded with that supposedly addressed by him to AZCOR; (b) both were pre-drafted with blank spaces filled up with the purported dates of effectivity of his resignation; and, (c) it was written in English, a language which Capulso was not conversant with considering his low level of education. No other plausible explanation can be drawn from these circumstances than that the subject letters of resignation were prepared by a person or persons other than Capulso. And the fact that he categorically disowned the signatures therein and denied having executed them clearly indicates that the resignation letters were drafted without his consent and participation. Even assuming for the sake of argument that the signatures were genuine, we still cannot give credence to those letters in the absence of any showing that Capulso was aware that what he was signing then were in fact resignation letters or that he fully understood the contents thereof. Having introduced those resignation letters in evidence, it was incumbent upon petitioners to prove clearly and convincingly their genuineness and due execution, especially considering the serious doubts on their authenticity. Valdez v NLRC, 286 SCRA 87 (1998) The reason for the stoppage of operation of the bus assigned to petitioner was the breakdown of the airconditioning unit, which is a valid reason for the suspension of its operation. However, such suspension regarding that particular bus should likewise last only for a reasonable period of time. The period of six months was more than enough for it to cause the repair thereof. Beyond that period, the stoppage of its operation was already legally unreasonable and economically prejudicial to herein petitioner who was not given a substitute vehicle to drive. The so-called "floating status" of an employee should last only for a legally prescribed period of time. When that "floating status" of an employee lasts for more than six months, he may be considered to have been illegally dismissed from the service. Thus, he is entitled to the corresponding benefits for his separation, and this would apply to the two types of work suspension heretofore noted, that is, either of the entire business or of a specific component thereof.
139
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
It was not denied by private respondent that it tried to force private respondent to sign an undated company-prepared resignation letter and a blank undated affidavit of quitclaim and release which the latter validly refused to sign. Furthermore, the bus which petitioner used to drive was already plying a transportation route as an ordinary bus and was being driven by another person, without petitioner having been priorly offered the same alternative arrangement. The other allegation of private respondent that petitioner voluntarily resigned from work obviously does not deserve any consideration. It would have been illogical for herein petitioner to resign and then file a complaint for illegal dismissal. Resignation is inconsistent with the filing of the said complaint. - Resignation is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and, that he has no other choice but to disassociate himself from his employment. Resignation is a formal pronouncement of relinquishment of an office. It must be made with the intention of relinquishing the office accompanied by an act of relinquishment. The cardinal rule in termination cases is that the employer bears the burden of proof to show that the dismissal is for just cause, failing in which it would mean that the dismissal is not justified. This rule applies adversely against herein respondent company since it has utterly failed to discharge that onus by the requisite quantum of evidence. Under Article 279 of the Labor Code, as amended, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Effectivity Cases BMG Records v Aparecio, 532 SCRA 300 (2007) Upon such acceptance, it may not be unilaterally withdrawn without the consent of petitioners. When the employee later signified the intention of continuing his or her work, it was already up to the employer to accept the withdrawal of his or her resignation. The mere fact that the withdrawal was not accepted does not constitute illegal dismissal, the acceptance of the withdrawal of the resignation being the employer's sole prerogative. As held in Intertrod Maritime, Inc. v. NLRC: Once an employee resigns and his resignation is accepted, he no longer has any right to the job. If the employee later changes his mind, he must ask for approval of the withdrawal of his resignation NIKKI HIPOLITO
from his employer, as if he were re-applying for the job. It will then be up to the employer to determine whether or not his service would be continued. If the employer accepts said withdrawal, the employee retains his job. If the employer does not x x x the employee cannot claim illegal dismissal for the employer has the right to determine who his employees will be. To say that an employee who has resigned is illegally dismissed, is to encroach upon the right of employers to hire persons who will be of service to them. Validity of Policy Cases Manila Broadcasting v NLRC, 294 SCRA 486 (1998) Although §11(b) of R.A. No. 6646 does not require mass-media commentators and announcers such as private respondent to resign from their radio or TV stations but only to go on leave for the duration of the campaign period, we think that the company may nevertheless validly require them to resign as a matter of policy. The policy is justified on the following grounds: 1) Working for the government and the company at the same time is clearly disadvantageous and prejudicial to the rights and interest not only of the company but the public as well. In the event an employee wins in an election, he cannot fully serve, as he is expected to do, the interest of his employer. The employee has to serve two (2) employers, obviously detrimental to the interest of both the government and the private employer. 2) In the event the employee loses in the election, the impartiality and cold neutrality of an employee as broadcast personality is suspect, thus readily eroding and adversely affecting the confidence and trust of the listening public to employer’s station. These are valid reasons for petitioner. No law has been cited by private respondent prohibiting a rule such as that in question. 14.03 No Termination—Performance of Military or Civic Duty Circumstances that shall NOT terminate employment (ART. 286) • Bona fide suspension of the operation of a business or undertaking NOT exceeding 6 months • Fulfillment by the employee of a military or civic duty •
Employer shall reinstate the employee of his former position without loss of seniority rights if employee indicates his desire to resume to work not later than 1 month from the resumption of operations of his employer or from relief from the military or civic duty (ART. 286)
140
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
•
•
•
Employer-employee relationship is deemed SUSPENDED in case of suspension of operation, unless suspension is for the purpose of defeating the rights of the employees, or mandatory fulfillment of military or civic duty (Bk VI, Rule I, Sec. 12, Omnibus Rules) Payment of Wages and grant of other benefits and privileges while employee is on military or civic duty shall be subject to: o Special laws or decrees o Individual or CBAs o Voluntary employer practice or policy When bona fide suspension of the operation of a business or undertaking exceeds six months, then the employment of the employee shall be deemed terminated.
C. TERMINATION OF EMPLOYMENT BY EMPLOYER PRELIMINARY MATTERS 14.04 Basis of Right and Requirements Basis Cases PLDT v Balbastro, 519 SCRA 233 (2007) While it is true that compassion and human consideration should guide the disposition of cases involving termination of employment since it affects one's source or means of livelihood, it should not be overlooked that the benefits accorded to labor do not include compelling an employer to retain the services of an employee who has been shown to be a gross liability to the employer. The law in protecting the rights of the employees authorizes neither oppression nor self-destruction of the employer. It should be made clear that when the law tilts the scale of justice in favor of labor, it is but a recognition of the inherent economic inequality between labor and management. The intent is to balance the scale of justice; to put the two parties on relatively equal positions. There may be cases where the circumstances warrant favoring labor over the interests of management but never should the scale be so tilted if the result is an injustice to the employer. Justitia nemini neganda est (Justice is to be denied to none).
NOTES
over backwards in favor of the working class, and mandate that every doubt must be resolved in their favor. Manila Trading and Supply Co v Zulueta, 69 Phil. 485 (1940) The right of an employer to freely select or discharge his employees is subject to regulation by the State basically in the exercise of its paramount police power. But an employer cannot legally be compelled to continue with the employment of a person who admittedly was guilty of misfeasance or malfeasance towards his employer, and whose continuance in the service of the latter is patently inimical to his interests. The law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer. Agabon v NLRC, 442 SCRA 573 (2004) To dismiss an employee, the law requires not only the existence of a just and valid cause but also enjoins the employer to give the employee the opportunity to be heard and to defend himself. Article 282 of the Labor Code enumerates the just causes for termination by the employer: (a) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or the latter's representative in connection with the employee's work; (b) gross and habitual neglect by the employee of his duties; (c) fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative; (d) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) other causes analogous to the foregoing.
Gutierrez v Singer Sewing Machine Co, 411 SCRA 512 (2003) The penalty imposed on the erring employee ought to be proportionate to the offense, taking into account its nature and surrounding circumstances. In the application of labor laws, the courts and other agencies of the government are guided by the social justice mandate in our fundamental law.
PLDT v Tolentino, 438 SCRA 555 (2004) This Court is cognizant of management’s right to select the people who will manage its business as well as its right to dismiss them. However, this right cannot be abused. Its exercise must always be tempered with compassion and understanding. As former Chief Justice Enrique Fernando eloquently put it: Where a penalty less severe would suffice, whatever missteps may be committed by labor ought not to be visited with consequence so severe. It is not only because of the law’s concern for the workingmen. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all the circumstances of a case, the workers should not be deprived of their means of livelihood. Nor is this to condone what has been done by them.
To be lawful, the cause for termination must be a serious and grave malfeasance to justify the deprivation of a means of livelihood. This is merely in keeping with the spirit of our Constitution and laws which lean
To reinstate respondent is not to condone his "misstep" since his participation in the "internal arrangement" was not sufficiently established to warrant his dismissal from PLDT which he served faithfully for 23 years.
NIKKI HIPOLITO
141
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Perez v Medical City General Hospital, 484 SCRA 138 (2006) The power to dismiss an employee is a recognized prerogative that is inherent in the employer’s right to freely manage and regulate his business. An employer cannot be expected to retain an employee whose lack of morals, respect and loyalty to his employer or regard for his employer’s rules and appreciation of the dignity and responsibility of his office has so plainly and completely been bared. An employer may not be compelled to continue to employ a person whose continuance in service will patently be inimical to his interest. The dismissal of an employee, in a way, is a measure of self-protection. Nevertheless, whatever acknowledged right the employer has to discipline his employee, it is still subject to reasonable regulation by the State in the exercise of its police power. Thus, it is within the power of this Court not only to scrutinize the basis for dismissal but also to determine if the penalty is commensurate to the offense, notwithstanding the company rules. Penalties Cases Steel Pipe Corp v Bardaje, 522 SCRA 155 (2007) We agree with the Labor Arbiter’s conclusion that respondent’s misconduct on August 19, 1999 does not warrant the imposition of the ultimate sanction of dismissal. Undeniably, the altercation between respondent and Barrios was nipped in the bud by the timely intervention of other employees. The momentary work stoppage did not pose a threat to the safety or peace of mind of the workers. Neither did such disorderly behavior cause substantial prejudice to the business of respondent SSPC. Time and again, we have held that it is cruel and unjust to impose the drastic penalty of dismissal if not commensurate to the gravity of the misdeed. The reason, as this Court first enunciated in Almira v. B.F. Goodrich Philippines, Inc., is not too difficult to understand – xxx [W]here a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the law’s concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all circumstances of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what had been done by them For all this while, since private respondent considered them separated from the service, they had not been paid. From the strictly juridical standpoint, it cannot be too strongly stressed, to follow Davis in his masterly work, Discretionary Justice, that where a decision may be made to rest [on] informed judgment rather than rigid rules, all the equities of the case must be accorded their due weight. Finally, labor law determinations, to quote from
NIKKI HIPOLITO
NOTES
Bultmann, should be secundum caritatem.
not
only
secundum
rationem
but
also
Requirements ART. 282: Termination by employer. – An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (e) Other causes analogous to the foregoing. ART. 283: Closure of establishment and reduction of personnel. – The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of laborsaving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. ART. 284: Disease as ground for termination. – An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. ART. 277 (B): Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just or authorized cause and without prejudice to the requirement of notice under
142
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. Substantive and Procedural Due Process Cases Fujitsu Computer Products v CA, 454 SCRA 737 (2005) It is settled that to constitute a valid dismissal from employment, two requisites must concur: (a) the dismissal must be for any of the causes provided for in Article 282 of the Labor Code; and (b) the employee must be afforded an opportunity to be heard and defend himself. This means that an employer can terminate the services of an employee for just and valid causes, which must be supported by clear and convincing evidence. It also means that, procedurally, the employee must be given notice, with adequate opportunity to be heard, before he is notified of his actual dismissal for cause. Ariola v Philex Mining Corp, 446 SCRA 152 (2005) Thus, the requirements for retrenchment are: (1) it is undertaken to prevent losses, which are not merely de minimis, but substantial, serious, actual, and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) the employer serves written notice both to the employees and the DOLE at least one month prior to the intended date of retrenchment; and (3) the employer pays the retrenched employees separation pay equivalent to one month pay or at least ½ month pay for every year of service, whichever is higher. The Court later added the requirements that the employer must use fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees and that the retrenchment must be undertaken in good faith. Except for the written notice to the affected employees and the DOLE, non-compliance with any of these requirements renders the retrenchment illegal.
NIKKI HIPOLITO
NOTES
PNB v Cabansag, 460 SCRA 514 (2005) As a regular employee, respondent was entitled to all rights, benefits and privileges provided under our labor laws. One of her fundamental rights is that she may not be dismissed without due process of law. The twin requirements of notice and hearing constitute the essential elements of procedural due process, and neither of these elements can be eliminated without running afoul of the constitutional guarantee. In dismissing employees, the employer must furnish them two written notices: 1) one to apprise them of the particular acts or omissions for which their dismissal is sought; and 2) the other to inform them of the decision to dismiss them. As to the requirement of a hearing, its essence lies simply in the opportunity to be heard. The evidence in this case is crystal-clear. Respondent was not notified of the specific act or omission for which her dismissal was being sought. Neither was she given any chance to be heard, as required by law. At any rate, even if she were given the opportunity to be heard, she could not have defended herself effectively, for she knew no cause to answer to. All that petitioner tendered to respondent was a notice of her employment termination effective the very same day, together with the equivalent of a one-month pay. This Court has already held that nothing in the law gives an employer the option to substitute the required prior notice and opportunity to be heard with the mere payment of 30 days’ salary. Well-settled is the rule that the employer shall be sanctioned for noncompliance with the requirements of, or for failure to observe, due process that must be observed in dismissing an employee. Genuino Ice Co v Magpantay, 493 SCRA 195 (2006) For termination of employment based on just causes as defined in Article 282 of the Labor Code: (i) A written notice served on the employee specifying the ground or grounds of termination, and giving said employee reasonable opportunity within which to explain his side. (ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him. (iii) A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. Simply stated, the employer must furnish the employee a written notice containing a statement of the cause for termination and to afford said employee ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires, and the employee must be
143
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
notified in writing of the decision dismissing him, stating clearly the reasons therefor. Suico v NLRC, 513 SCRA 325 (2007) Art. 277 (b) in relation to Art. 264 (a) and (e) recognizes the right to due process of all workers, without distinction as to the cause of their termination. Where no distinction is given, none is construed. Hence, the foregoing standards of due process apply to the termination of employment of Suico, et al. even if the cause therefor was their supposed involvement in strike-related violence prohibited under Art. 264 (a) and (e). Moreover, the procedure for termination prescribed under Art. 277(b) and Rule XXII of the Implementing Rules of Book V is supplemented by existing company policy. Art. 277(b) provides that the procedure for termination prescribed therein is without prejudice to the adoption by the employer of company policy on the matter, provided this conforms with the guidelines set by the DOLE such as Rule XXII of the Implementing Rules of Book V. This is consistent with the established principle that employers are allowed, under the broad concept of management prerogative, to adopt company policies that regulate all aspects of personnel administration including the dismissal and recall of workers. 14.05 Just Causes—Substantive Due Process—Grounds for Termination
• • • •
• • • • • •
Grounds for Termination Serious misconduct or willful disobedience Gross or habitual neglect of duties Fraud or willful breach of trust Commission of a crime or offense against the person of the employer or any immediate member of his family or duly authorized representative Analogous causes Installation of labor saving devices Redundancy Retrenchment to prevent losses Closing or cessation of operation Disease
A. Serious Misconduct • • •
Serious Related to the performance of the employee’s outlets AND Shows that the employee has become unfit to continue working for the employer
NIKKI HIPOLITO
NOTES
Definition and Acts Cases PLDT v Bolso, 530 SCRA 550 (2007) The Labor Code provides that an employer may terminate the services of an employee for a just cause. Among the just causes in the Labor Code is serious misconduct. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct to be serious within the meaning of the Labor Code must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless be in connection with the employee’s work to constitute just cause for his separation. Supreme Steel Pipe Corp v Bardaje, 522 SCRA 155 (2007) In this jurisdiction, we have consistently defined misconduct as an improper or wrong conduct, a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, implies wrongful intent and not mere error of judgment. To be a just cause for termination under Article 282 of the Labor Code of the Philippines, the misconduct must be serious, that is, it must be of such grave and aggravated character and not merely trivial or unimportant. However serious, such misconduct must nevertheless be in connection with the employee’s work; the act complained of must be related to the performance of the employee’s duties showing him to be unfit to continue working for the employer. Thus, for misconduct or improper behavior to be a just cause for dismissal, (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. Sulapas v Basco, 521 SCRA 457 (2007) Grave misconduct manifests a clear intent to violate the law or a flagrant disregard of established rule. Unfortunately, the complainant failed to substantiate her allegation of bad faith and improper motive on the part of respondent. Nonetheless, respondent should be held accountable for neglecting to perform his duty under Section 9, Rule 141 of the Rules of Court. His non-feasance was the cause of the complainant’s failure to pay the legal fees and consequently, the delay in the execution of the July 13, 2001 court order. Rodriguez v Eugenio, 512 SCRA 489 (2007) Respondent’s act of demanding and receiving money from the uncle of a party litigant constitutes grave misconduct in office. It is this kind of gross and flaunting misconduct, no matter how nominal the amount involved on the part of those who are charged with the responsibility of administering the law and rendering justice quickly, which erodes the respect for law and
144
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
the courts. Pursuant to Section 23, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order 292, Grave Misconduct, being in the nature of grave offenses, carries the extreme penalty of dismissal from the service with forfeiture of retirement benefits except accrued leave credits, and perpetual disqualification from re-employment in government service. Punzal v ETST Technologies, 518 SCRA 66 (2007) Given the reasonableness of Geisert’s decision that provoked petitioner to send the second e-mail message, the observations of the Court of Appeals that "the message x x x resounds of subversion and undermines the authority and credibility of management" and that petitioner "displayed a tendency to act without management’s approval, and even against management’s will" are well taken.
NOTES
Finally, in Samson, this Court found that the "lack of urgency on the part of the respondent company in taking any disciplinary action against [the employee] negates its charge that the latter’s misbehavior constituted serious misconduct." In the case at bar, the management acted 14 days after petitioner circulated the quoted e-mail message. Petitioner asks that her 12 years of service to ETSI during which, so she claims, she committed no other offense be taken as a mitigating circumstance. This Court has held, however, that "the longer an employee stays in the service of the company, the greater is his responsibility for knowledge and compliance with the norms of conduct and the code of discipline in the company."
In petitioner’s case, her assailed conduct was related to her work. It reflects an unwillingness to comply with reasonable management directives.
Cansino v Prudential Shipping, 516 SCRA (2007) In the earlier case of Seahorse Maritime Corporation v. National Labor Relations Commission, which likewise involved a seaman who was prone to intoxication and creating trouble aboard ship when drunk, we held that serious misconduct in the form of drunkenness and disorderly and violent behavior, habitual neglect of duty, and insubordination or willful disobedience to the lawful orders of his superior officer, are just causes for dismissal of an employee under Article 282 of the Labor Code, and that where the dismissal is for cause, the erring seaman is neither entitled to separation pay or to the salaries for the unexpired portion of his contract. Echeverria v Venutek, 516 SCRA 72 (2007) Misconduct has been defined as an improper or wrong conduct; a transgression of some established and definite rule of action; a forbidden act; a dereliction of duty. It implies wrongful intent and not mere error of judgment. To be categorized as serious, it must be of such grave and aggravated character and not merely trivial and unimportant. And to constitute just cause for an employee’s separation, it must be in connection with his work.
While in Samson, Samson was held to be merely expressing his dissatisfaction over a management decision, in this case, as earlier shown, petitioner’s offensive remarks were directed against Geisert.
To justify the termination of an employee’s services, loss of trust and confidence as basis thereof must be based on a willful breach of the trust reposed in him by his employer. Ordinary breach will not suffice.
Additionally, in Samson, this Court found that unlike in Autobus Workers’ Union (AWU) v. NLRC where dismissal was held to be an appropriate penalty for uttering insulting remarks to the supervisor, Samson uttered the insulting words against EDT in the latter’s absence. In the case at bar, while petitioner did not address her e-mail message to Geisert, she circulated it knowing – or at least, with reason to know – that it would reach him. As ETSI notes, "[t]hat [petitioner] circulated this e-mail message with the knowledge that it would reach the eyes of management may be reasonably concluded given that the first e-mail message reached her immediate supervisor’s attention.
A breach of trust is willful if it is done intentionally, knowingly and purposely without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
Moreover, in circulating the second e-mail message, petitioner violated Articles III (8) and IV (5) of ETSI’s Code of Conduct on "making false or malicious statements concerning the Company, its officers and employees or its products and services" and "improper conduct or acts of discourtesy or disrespect to fellow employees, visitors, guests, clients, at any time." Petitioner’s reliance on Samson is misplaced. First, in that case, this Court found that the misconduct committed was not related with the employee’s work as the offensive remarks were verbally made during an informal Christmas gathering of the employees, an occasion "where tongues are more often than not loosened by liquor or other alcoholic beverages" and "it is to be expected x x x that employees freely express their grievances and gripes against their employers."
NIKKI HIPOLITO
Torreda v Toshiba, 515 SCRA 133 (2007) Misconduct has been defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment. The misconduct to be serious must be of such grave and aggravated character and not merely trivial and
145
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
unimportant. Such misconduct, however, serious, must nevertheless be in connection with the employee’s work to constitute just cause for his separation. Thus, for misconduct or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) must relate to the performance of the employee’s duties; and (c) must show that the employee has become unfit to continue working for the employer. Indeed, an employer may not be compelled to continue to employ such person whose continuance in the service would be patently inimical to his employer’s interest. Valiao v CA, 435 SCRA 543 (2004) Serious misconduct and habitual neglect of duties are among the just causes for terminating an employee under the Labor Code of the Philippines. Gross negligence connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. The Labor Arbiter’s findings that petitioner’s habitual absenteeism and tardiness constitute gross and habitual neglect of duties that justified his termination of employment are sufficiently supported by evidence on record. Petitioner’s repeated acts of absences without leave and his frequent tardiness reflect his indifferent attitude to and lack of motivation in his work. More importantly, his repeated and habitual infractions, committed despite several warnings, constitute gross misconduct unexpected from an employee of petitioner’s stature. This Court has held that habitual absenteeism without leave constitute gross negligence and is sufficient to justify termination of an employee. Villamor Golf Club v Pehid, 472 SCRA 36 (2005) “Serious misconduct” as a valid cause for the dismissal of an employee is defined as improper or wrong conduct; the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. To be serious within the meaning and intendment of the law, the misconduct must be of such grave and aggravated character and not merely trivial or unimportant. However serious such misconduct, it must, nevertheless, be in connection with the employee’s work to constitute just cause for his separation. The act complained of must be related to the performance of the employee’s duties such as would show him to be unfit to continue working for the employer. Lakpue Drug v Belga, 473 SCRA 617 (2005) We have defined misconduct as a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant. Such misconduct, however serious, must, nevertheless, be in connection with the employee’s work to constitute just cause for his separation.
NIKKI HIPOLITO
NOTES
Belga’s failure to formally inform Tropical of her pregnancy can not be considered as grave misconduct directly connected to her work as to constitute just cause for her separation. Coca-Cola Bottlers v Kapisanan ng Malayang Manggagawa sa CocaCola, 452 SCRA 480 (2005) In cases when an employer may dismiss an employee on the ground of willful disobedience, there must be concurrence of at least two requisites: (1) the employee’s assailed conduct must have been willful or intentional, the willfulness being characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge. In the present case, the respondent was dismissed for dishonesty, more specifically for violation of the company policy, and, more particularly, Sections 10 and 12 of Company Rules and Regulation No. 005-85, Fictitious sales transactions; Falsification of company records/data/documents/reports; Conspiring or conniving with, or directing others to commit fictitious transactions; and inefficiency in the performance of duties, negligence and blatant disregard of or deviation from established control and other policies and procedures. However, the petitioner failed to adduce clear and convincing evidence that the respondent had fictitious sales transactions, or that he falsified company records/documents/reports, or that he connived with customers of the petitioner to persuade them to commit fictitious transactions. It is undisputed that the respondent entered into the sales transactions subject of the complaint of the petitioner for and in behalf of the petitioner. While it is true that the respondent failed to indicate the return of the empty bottles made by a customer either in the petitioner company’s copy of the sales invoice or in his reports on his sales transactions; and overcharged a customer in one transaction, there is no clear and convincing evidence that the respondent did so intentionally, for a wrong or criminal purpose. There is also no showing that the respondent intentionally defied the lawful orders or regulations of the petitioner. Indeed, as declared by the CA in its assailed resolution, the petitioner did not suffer any material loss by the respondent’s actuations. Genuino Ice v Magpantay, 493 SCRA 195 (2006) In Coca-Cola Bottlers, Phils. Inc v. Kapisanan ng Malayang Manngagawa sa Coca-Cola-FFW, it was held that an employer enjoys a wide latitude of discretion in the promulgation of policies, rules and regulations on workrelated activities of the employees so long as they are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. Company policies and regulations are generally
146
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or preferably through negotiation, by competent authority. For misconduct or improper behavior to be a just cause for dismissal, the same must be related to the performance of the employee’s duties and must show that he has become unfit to continue working for the employer. Premiere Dev. Bank v Mantal, 485 SCRA 234 (2006) Misconduct is improper or wrongful conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. Under Article 282 of the Labor Code, the misconduct, to be a just cause for termination, must be of such grave and aggravated character, not merely of a trivial or unimportant nature. For serious misconduct to warrant the dismissal of an employee, it (1) must be serious; (2) must relate to the performance of the employee’s duty; and (3) must show that the employee has become unfit to continue working for the employer. Molina v Pacific Plans, 484 SCRA 498 (2006) Misconduct has been defined as improper or wrong conduct; the transgression of some established and definite rule of action; a forbidden act, a dereliction of duty, unlawful in character and implies wrongful intent and not mere error of judgment. The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant. Such misconduct, however, serious, must nevertheless, be in connection with the employee’s work to constitute just cause for his separation. The loss of trust and confidence, in turn, must be based on the willful breach of the trust reposed in the employee by his employer. Ordinary breach will not suffice. A breach of trust is willful if it is done intentionally, knowingly and purposely without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The Court has laid down the guidelines for the application of the doctrine for loss of confidence, thus: 1. The loss of confidence must not be simulated; 2. It should not be used as a subterfuge for causes which are illegal, improper or unjustified; 3. It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; 4. It must be genuine, not a mere afterthought, to justify earlier action taken in bad faith; and 5. The employee involved holds a position of trust and confidence. Willful Disobedience • Employee’s assailed conduct must have been characterized by a wrongful and perverse attitude NIKKI HIPOLITO
WILLFUL—
•
The order violated must have been— o Reasonable o Lawful o Made known to the employee o Pertain to the duties which had been engaged to discharge
Cases Micro Sales Operation Network v NLRC, 472 SCRA 328 (2005) For willful disobedience to be a valid cause for dismissal, the following twin elements must concur: (1) the employee's assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge. Bascon v CA, 422 SCRA 122 (2004) However, willful disobedience of the employer’s lawful orders, as a just cause for dismissal of an employee, envisages the concurrence of at least two requisites: (1) the employee's assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge. In this case, we find lacking the element of willfulness characterized by a perverse mental attitude on the part of petitioners in disobeying their employer’s order as to warrant the ultimate penalty of dismissal. Wearing armbands and putting up placards to express one’s views without violating the rights of third parties, are legal per se and even constitutionally protected. Thus, MCCH could have done well to respect petitioners’ right to freedom of speech instead of threatening them with disciplinary action and eventually terminating them. Neither are we convinced that petitioners’ exercise of the right to freedom of speech should be taken in conjunction with the illegal acts committed by other union members in the course of the series of mass actions. It bears stressing that said illegal acts were committed by other union members after petitioners were already terminated, not during the time that the latter wore armbands and put up placards. Finally, even if willful disobedience may be properly appreciated, still, the penalty of dismissal is too harsh. Not every case of willful disobedience by an employee of a lawful work-connected order of the employer may be penalized with dismissal. There must be reasonable proportionality between, on the one hand, the willful disobedience by the employee and, on the other hand, the penalty imposed therefor. In this case, evidence is wanting on the depravity of conduct and willfulness of the disobedience on the part of petitioners, as contemplated by law. Wearing armbands to signify union
147
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
membership and putting up placards to express their views cannot be of such great dimension as to warrant the extreme penalty of dismissal, especially considering the long years of service rendered by petitioners and the fact that they have not heretofore been subject of any disciplinary action in the course of their employment with MCCH. R Transport Corp v Ejaneira, 428 SCRA 725 (2004) To constitute abandonment, two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason and (2) a clear intention to sever the employer-employee relationship. Of the two, the second element is the more determinative factor and should be manifested by some overt acts. Mere absence is not sufficient. It is the employer who has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning.
B. Gross and Habitual Neglect of Duties -
-
Gross Negligence is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently, but willfully and intentionally with a conscious difference to consequences insofar as other persons may be affected. Gross Negligence connotes want of care in the performance of one’s duties. Habitual Negligence implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. Neglect of duty MUST be BOTH gross and habitual. Simple negligence is NOT a ground for dismissal of an employee.
Requisites Cases Judy Philippines v NLRC, 289 SCRA 755 (1998) Petitioner anchors its right to terminate the employment of Virginia Antiola on the ground of "gross neglect of duties," under Article 282 (b) of the Labor Code. Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. We affirm the finding of the NLRC that "Article 282 (b) of the Labor Code requires that . . . such neglect must not only be gross, it should be 'Gross and habitual neglect' in character." As aptly pronounced by the NLRC, "the penalty of dismissal is quite severe here" noting that the labor arbiter himself admits that she committed the infraction for the first time.
NIKKI HIPOLITO
NOTES
Chavez v NLRC, 448 SCRA 478 (2005) Neither can the respondents’ claim that the petitioner was guilty of gross negligence in the proper maintenance of the truck constitute a valid and just cause for his dismissal. Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. The negligence, to warrant removal from service, should not merely be gross but also habitual. The single and isolated act of the petitioner’s negligence in the proper maintenance of the truck alleged by the respondents does not amount to "gross and habitual neglect" warranting his dismissal. Challenge Socks Corp v CA, 474 SCRA 356 Habitual neglect implies repeated failure to perform one’s duties for a period of time. Buguat’s repeated acts of absences without leave and her frequent tardiness reflect her indifferent attitude to and lack of motivation in her work. Her repeated and habitual infractions, committed despite several warnings, constitute gross misconduct. Habitual absenteeism without leave constitute gross negligence and is sufficient to justify termination of an employee. Gross and Habitual Negligence Defined Cases Valiao v CA, 435 SCRA 543 (2004) Gross negligence connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. The Labor Arbiter’s findings that petitioner’s habitual absenteeism and tardiness constitute gross and habitual neglect of duties that justified his termination of employment are sufficiently supported by evidence on record. Petitioner’s repeated acts of absences without leave and his frequent tardiness reflect his indifferent attitude to and lack of motivation in his work. More importantly, his repeated and habitual infractions, committed despite several warnings, constitute gross misconduct unexpected from an employee of petitioner’s stature. This Court has held that habitual absenteeism without leave constitute gross negligence and is sufficient to justify termination of an employee. Tres Reyes v Maxims Tea House, 398 SCRA 288 (2003) Under the Labor Code, gross negligence is a valid ground for an employer to terminate an employee. Gross negligence is negligence characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. In this case, however, there is no substantial basis to support a finding that petitioner committed gross negligence.
148
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Phil Aeolus Automotive United Corp v NLRC, 331 SCRA 237 (2000) Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. The negligence, to warrant removal from service, should not merely be gross but also habitual. Likewise, the ground "willful breach by the employee of the trust reposed in him by his employer" must be founded on facts established by the employer who must clearly and convincingly prove by substantial evidence the facts and incidents upon which loss of confidence in the employee may fairly be made to rest. All these requirements prescribed by law and jurisprudence are wanting in the case at bar. Cebu Filveneer Corp v NLRC, 286 SCRA 556 (1998) Nor are we prepared to agree with petitioners that the private respondent was grossly or habitually negligent in the performance of her duties. The records reveal that the private respondent has not been remiss in the past in the performance of her duties, hence, she cannot be charged with habitual negligence. We cannot also characterize private respondent's negligence as gross in character. Gross negligence implies a want or absence of or failure to exercise slight care or diligence or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. In the case at bar, the evidence does not show that the private respondent has any reason to distrust Mr. Kun. Mr. Kun was petitioner's general manager and appears to have conducted himself well in the performance of his duties in the past. There was not the slightest reason to suspect that Mr. Kun would commit any illegal act. At the most, the trust misplaced by the private respondent constitutes error of judgment but not gross negligence. Citibank NA v Gatchalian, 240 SCRA 212 (1995) Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. Chua v NLRC, 453 SCRA 244 (2005) Gross negligence under Article 282 of the Labor Code, as amended, connotes want of care in the performance of one’s duties, while habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. Clearly, the petitioner’s repeated failure to submit the DCRs on time, as well as the failure to submit the doctors’ call cards constitute habitual neglect of duties. Needless to state, the foregoing clearly indicate that the employer had a just cause in terminating the petitioner’s employment. Genuino Ice Co v Magpantay, 493 SCRA 195 (2006) Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence connotes want of care in the performance of NIKKI HIPOLITO
NOTES
one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. On the other hand, fraud and willful neglect of duties imply bad faith on the part of the employee in failing to perform his job to the detriment of the employer and the latter’s business. Thus, the single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. Thus, the Court agrees with the CA that respondent’s four-day absence is not tantamount to a gross and habitual neglect of duty. As aptly stated by the CA, "(W)hile he may be found by the labor courts to be grossly negligent of his duties, he has never been proven to be habitually absent in a span of seven (7) years as GICI’s employee. The factual circumstances and evidence do not clearly demonstrate that petitioner’s [respondent] absences contributed to the detriment of GICI’s operations and caused irreparable damage to the company." Premiere Dev. Bank v Mantal, 485 SCRA 234 (2006) Gross negligence means an absence of that diligence that a reasonably prudent man would use in his own affairs. To constitute a just cause for termination of employment, the neglect of duties must not only be gross but habitual as well. The single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. NLRC v Salgarino, 497 SCRA 361 (2006) To our mind, the acts of the respondent in increasing the marks and indicating passing grades on the white sheets of her students while she was on maternity leave; of not having sought permission from petitioners before conducting the make-up tests in her house, contrary to the policy of the petitioners that permission should first be granted before conducting makeup tests that must be conducted in the school premises; of making the increases in the grades of the students during her maternity leave which is not allowed since the substitute teachers were the ones authorized to compute and give the grades for the concerned students; and of invoking humanitarian consideration in doing so which is not a basis in the Manual of Regulations for Private Schools for grading a student, are all acts of transgression of school rules, regulations and policies. Truly, then, respondent had committed a misconduct. However, such misconduct is not serious enough to warrant her dismissal from employment under paragraph (a) of Article 282 of the Labor Code. Misconduct is defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error of judgment. The misconduct to be serious within the meaning of the act must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must
149
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
nevertheless be in connection with the work of the employee to constitute just cause from his separation. In order to constitute serious misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 282 of the Labor Code, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent. There is no evidence to show that there was ulterior motive on the part of the respondent when she decided to pass her students. Also, it was not shown that respondent received immoral consideration when she did the same. From the Labor Arbiter up to this Court, respondent has maintained her stand that her decision to pass the concerned students was done out of humanitarian consideration. New Sunrise Metal Construction v Pia, 527 SCRA 259 (2007) cralawAt all events, unsatisfactory performance cannot be considered a just cause for dismissal under the Labor Code if it does not amount to gross and habitual neglect of duties. On this score, petitioners failed to prove that the alleged inefficiency of the 12 respondents amounted to gross and habitual neglect of duties. Simple Negligence Cases Paguio Transport v NLRC, 294 SCRA 657 (1998) Mere involvement in an accident, absent any showing of fault or recklessness on the part of the employee, is NOT a valid ground for dismissal.
NOTES
emphasize that such ground is premised on the fact that the employee concerned holds a position of responsibility or trust and confidence. In order to constitute a just cause for dismissal, the act complained of must be “work-related” such as would show the employee concerned to be unfit to continue working for the employer. More importantly, the loss of trust and confidence must be based on the willful breach of the trust reposed in the employee by his employer. A breach of trust is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Loss of Confidence = Requisites • Employee concerned holds a position of trust and confidence o Person is entrusted with confidence on delicate matters, such as care and protection, handling or custody of the employer’s property. • Act complained of must be “work-related” o Act would show the employee concerned to be unfit to continue working for the employer • Basis for such loss of confidence o Proof beyond reasonable doubt is NOT necessary o Sufficient that employer has reasonable ground to believe that the employee concerned is responsible for the purported misconduct, and the nature of his participation therein renders him unworthy of the trust and confidence demanded of his position.
Cases Santos v San Miguel Corp, 399 SCRA 172 (2003) Article 282(c) of the same Code provides that "willful breach by the employee of the trust reposed in him by his employer" is a cause for the termination of employment by an employer. This ground should be duly established. Substantial evidence is sufficient as long as such loss of confidence is well-founded or if the employer has reasonable ground to believe that the employee concerned is responsible for the misconduct and her act rendered her unworthy of the trust and confidence demanded of her position. It must be shown, though, that the employee concerned holds a position of trust. The betrayal of this trust is the essence of the offense for which an employee is penalized.
Cases Jardine Davies v NLRC, 311 SCRA 289 (1999) It is settled that loss of confidence as a just cause for terminating employment must be premised on the fact that an employee concerned holds a position of trust and confidence. This situation obtains where a person is entrusted with confidence on delicate matters, such as care and protection, handling or custody of the employer's property, as in this case. But, in order to constitute a just cause for dismissal, the act complained of must be "work-related" such as would show the employee concerned to be unfit to continue working for the employer. Likewise, it must be noted that proof beyond reasonable doubt is not required to dismiss an employee on the ground of loss of confidence. It is sufficient that there is some basis for such loss of confidence, such as when the employer has reasonable ground to believe that the employee concerned is responsible for the purported misconduct, and the nature of his participation therein renders him unworthy of the trust and confidence demanded of his position.
Lakpue Drug v Belga, 473 SCRA 617 (2005) Time and again, we have recognized the right of employers to dismiss employees by reason of loss of trust and confidence. However, we
This Court, however, has repeatedly stressed that the right of an employer to dismiss employees on account of loss of trust and confidence must not be exercised arbitrarily and without showing just cause, so as not to render the
C. Fraud—Willful Breach of Trust
NIKKI HIPOLITO
150
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
employee's constitutional right to security of tenure nugatory. Thus, although the dropping of a criminal charge for an employee's alleged misconduct does not bar his dismissal, and proof beyond reasonable doubt is not necessary to justify the same, still the basis thereof must be clearly and convincingly established. Besides, for loss of confidence to be a valid ground for dismissal, such loss of confidence must arise from particular proven facts. In other words, this ground must be founded on facts established by the employer who must clearly and convincingly prove by substantial evidence the facts and incidents upon which loss of confidence in the employee may be fairly made to rest; otherwise the dismissal will be rendered illegal. PLDT v Tolentino, 438 SCRA 555 (2004) There is no dispute over the fact that respondent was a managerial employee and therefore loss of trust and confidence was a ground for his valid dismissal. The mere existence of a basis for the loss of trust and confidence justifies the dismissal of the employee because: [w]hen an employee accepts a promotion to a managerial position or to an office requiring full trust and confidence, she gives up some of the rigid guaranties available to ordinary workers. Infractions which if committed by others would be overlooked or condoned or penalties mitigated may be visited with more severe disciplinary action. A company’s resort to acts of self-defense would be more easily justified. Proof beyond reasonable doubt is not required provided there is a valid reason for the loss of trust and confidence, such as when the employer has a reasonable ground to believe that the managerial employee concerned is responsible for the purported misconduct and the nature of his participation renders him unworthy of the trust and confidence demanded by his position. However, the right of the management to dismiss must be balanced against the managerial employee’s right to security of tenure which is not one of the guaranties he gives up. This Court has consistently ruled that managerial employees enjoy security of tenure and, although the standards for their dismissal are less stringent, the loss of trust and confidence must be substantial and founded on clearly established facts sufficient to warrant the managerial employee’s separation from the company. Substantial evidence is of critical importance and the burden rests on the employer to prove it. Due to its subjective nature, it can easily be concocted by an abusive employer and used as a subterfuge for causes which are improper, illegal or unjustified. Dela Cruz v NLRC, 418 SCRA 226 (2003) Petitioner was holding a managerial position in which he was tasked to perform key functions in accordance with an exacting work ethic. His position required the full trust and confidence of his employer. While petitioner could exercise some discretion, this obviously did not cover acts NIKKI HIPOLITO
NOTES
for his own personal benefit. As found by the court a quo, he committed a transgression that betrayed the trust and confidence of his employer ― reimbursing his familys personal travel expenses out of company funds. Petitioner failed to present any persuasive evidence or argument to prove otherwise. His act amounted to fraud or deceit which led to the loss of trust and confidence of his employer. Phil. National Construction Corp v Matias, 458 SCRA 148 (2005) To constitute a valid cause to terminate employment, loss of trust and confidence must be proven clearly and convincingly by substantial evidence. To be a just cause for terminating employment, loss of confidence must be directly related to the duties of the employee to show that he or she is woefully unfit to continue working for the employer. Cruz v CA, 494 SCRA 643 (2006) In addition, the language of Article 282(c) of the Labor Code states that the loss of trust and confidence must be based on willful breach of the trust reposed in the employee by his employer. Such breach is willful if it is done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Moreover, it must be based on substantial evidence and not on the employer’s whims or caprices or suspicions otherwise, the employee would eternally remain at the mercy of the employer. Loss of confidence must not be indiscriminately used as a shield by the employer against a claim that the dismissal of an employee was arbitrary. And, in order to constitute a just cause for dismissal, the act complained of must be workrelated and shows that the employee concerned is unfit to continue working for the employer. In addition, loss of confidence as a just cause for termination of employment is premised on the fact that the employee concerned holds a position of responsibility, trust and confidence or that the employee concerned is entrusted with confidence with respect to delicate matters, such as the handling or care and protection of the property and assets of the employer. The betrayal of this trust is the essence of the offense for which an employee is penalized. Breach of Trust—Loss of Confidence Cases Central Pangasinan Elec Corp v Macaraeg, 395 SCRA 720 (2003) Article 282(c) of the Labor Code allows an employer to dismiss employees for willful breach of trust or loss of confidence. Proof beyond reasonable doubt of their misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that they are responsible for the misconduct and their participation therein rendered them unworthy of the trust and confidence demanded of their position.
151
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
To be sure, the acts of the respondents were clearly inimical to the financial interest of the petitioner. During the investigation, they admitted accommodating Evelyn Joy Estrada by encashing her checks from its funds. They did so without petitioner’s knowledge, much less its permission. These inimical acts lasted for more than a year, and probably would have continued had it not been discovered in time. All along, they were aware that these acts were prohibited by the Coop Checks Policy. Clearly, there was willful breach of trust on the respondents’ part, as they took advantage of their highly sensitive positions to violate their duties. LBC Domestic Franchise Co v Florido, 530 SCRA 607 (2007) In this case, we find no such reasonable basis to conclude that private respondent has breached the trust reposed in him by petitioner whose claim that he had purposely or knowingly concealed his identity as the real supplier of the hams was not supported by substantial evidence. Evidence submitted by private respondent clearly showed [that] it was really TOBS Meat Supply owned by Jumuad who supplied the Purefoods Fiesta hams since if not for the latter’s contact as a meat dealer, private respondent could not have procured those hams at the price fixed by the management committee who agreed to his suggestion/proposal to make the purchase in behalf of the company. Hence, We cannot give credence to petitioner’s contention at this stage that the dismissal of private respondent was justified since petitioner-employer had reasonable basis for the loss of trust and confidence in said managerial employee. Besides, for the allegedly suspicious act of affixing a false signature on the questioned receipts covering an otherwise regular and fair sales transaction on behalf of the company, the extreme penalty of dismissal from service is rather too harsh. It has been held that where a penalty less punitive would suffice, whatever missteps that may have been committed by the worker ought not to be visited with a consequence so severe such as a dismissal from employment. Position Trust and Confidence Cases Santos v San Miguel Corp, 399 SCRA 172 (2003) Article 282(c) of the same Code provides that "willful breach by the employee of the trust reposed in him by his employer" is a cause for the termination of employment by an employer. This ground should be duly established. Substantial evidence is sufficient as long as such loss of confidence is well-founded or if the employer has reasonable ground to believe that the employee concerned is responsible for the misconduct and her act rendered her unworthy of the trust and confidence demanded of her position. It must be shown, though, that the employee concerned holds a position of trust. The betrayal of this trust is the essence of the offense for which an employee is penalized. Petitioner argues that her position as Finance Director of respondent's Beer Division is not one of trust but one that is merely functional and advisory in NIKKI HIPOLITO
NOTES
nature. She possesses no administrative control over the plants and region finance officers, including cashiers. She reports to two superiors. Petitioner's argument is misplaced. As Finance Director, she is in charge of the custody, handling, care and protection of respondent's funds. The encashment of her personal checks and her private use of such funds, albeit for short periods of time, are contrary to the fiduciary nature of her duties. Panday v NLRC, 209 SCRA 122 (1992) From the facts of the case, we regret that we cannot order reinstatement. We agree with the Deputy Minister that "complainant as branch accountant occupied a position involving trust and confidence and in the light of the estranged (sic) relation between the complainant and the respondent that may not permit the full restoration of an employment relationship based on trust and confidence, we have to allow termination of the employeremployee relationship but upon the payment of separation pay equivalent to one-half (1/2) month for every year of service rendered." (p. 5, Order) The case of Lepanto Consolidated Mining Co. v. Court of Appeals, 1 SCRA 1251 [I961], provides us with a definition of a "position of trust and confidence". It is one where a person is "entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property . . ." Cruz v Coca-Cola Bottlers, 460 SCRA 340 (2005) Termination of employment by reason of loss of confidence is governed by Article 282(c) of the Labor Code, which provides that an employer can terminate the employment of the employee concerned for “fraud or willful breach by an employee of the trust reposed in him by his employer or duly authorized representative.” Loss of confidence, as a just cause for termination of employment, is premised on the fact that the employee concerned holds a position of responsibility, trust and confidence. He must be invested with confidence on delicate matters such as the custody, handling, care and protection of the employer’s property and/or funds. Bago v NLRC, 520 SCRA 644 (2007) As a general rule, employers are allowed a wide latitude of discretion in terminating the employment of managerial personnel or those who, while not of similar rank, perform functions which by their nature require the employer’s full trust and confidence. Proof beyond reasonable doubt is not required. It is sufficient that there is some basis for loss of confidence, such as when the employer has reasonable ground to believe that the employee concerned is responsible for the purported misconduct, and the nature of his participation therein renders him unworthy of the trust and confidence demanded by his position. This must be distinguished from the case of ordinary rank-and-file employees, whose termination on the basis of these same grounds requires a higher proof of involvement in the events in
152
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
question; mere uncorroborated assertions and accusations by the employer will not suffice. Guidelines 1. Loss of confidence should NOT be simulated. 2. It should NOT be used as a subterfuge for causes which are improper, illegal or unjustified. 3. It should NOT be arbitrarily asserted in the face of overwhelming evidence to the contrary. 4. It must be genuine, NOT a mere afterthought to justify earlier action taken in bad faith. 5. The employee involved holds a position of trust and confidence. Cases Vitarich v NLRC, 307 SCRA 509 (1999) (a) Loss of confidence which should not be simulated; (b) It should not be used as a subterfuge for causes which are improper, illegal or unjustified; (c) It should not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and, (d) It must be genuine, not a mere afterthought to justify earlier action taken in bad faith. Coca-Cola Bottlers v Kapisanan ng Malayang Manggagawa sa CocaCola, 452 SCRA 480 (2005) 1. The loss of confidence must not be simulated; 2. It should not be used as a subterfuge for causes which are illegal, improper or unjustified; 3. It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; 4. It must be genuine, not a mere afterthought, to justify earlier action taken in bad faith; and 5. The employee involved holds a position of trust and confidence Willful Breach Breach done intentionally, knowingly, purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently There must be actual breach of duty which must be established by substantial evidence. Cases Atlas Consolidated Mining and Development Corp v NLRC, 290 SCRA 479 (1998) Settled is the rule that under Article 283 (c) of the Labor Code, the breach of trust must be willful. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from NIKKI HIPOLITO
NOTES
an act done carelessly, thoughtlessly, heedlessly or inadvertently. It must rest on substantial grounds and not on the employer's arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at the mercy of the employer. It should be genuine and not simulated; nor should it appear as a mere afterthought to justify earlier action taken in bad faith or a subterfuge for causes which are improper, illegal or unjustified. It has never been intended to afford an occasion for abuse because of its subjective nature. Private respondent explained that he failed to inspect the logbook for about two (2) months before its disappearance because he was preoccupied with some emergency works brought about by a storm. With the foregoing explanation, it cannot be said that private respondent's failure was willful. Coverage Cases Fujitsu Computer Products Corp v CA, 454 SCRA 737 (2005) The term “trust and confidence” is restricted to managerial employees. In this case, it is undisputed that respondent De Guzman, as the Facilities Section Manager, occupied a position of responsibility, a position imbued with trust and confidence. Among others, it was his responsibility to see to it that the garbage and scrap materials of petitioner FCPP were adequately managed and disposed of. Thus, respondent De Guzman was entrusted with the duty of handling or taking care of the property of his employer, i.e., the steel purlins, which the petitioners allege the respondent prematurely declared as scrap materials. Proof Cases Rematek Phils v delos Reyes, 474 SCRA 129 (2005) Loss of confidence as a ground for dismissal does not require proof beyond reasonable doubt. The law requires only that there be at least some basis to justify it. Thus, there must be some evidence to substantiate the claim and form a legal basis for loss of confidence. The employer cannot exercise arbitrarily and without just cause the right to dismiss an employee for loss of trust and confidence. Lack of Damage Cases Cadiz v CA, 474 SCRA 232 (2005) Lack of material or pecuniary damages would not in any way mitigate a person’s liability nor obliterate the loss of trust and confidence. In the case of Etcuban v. Sulpicio Lines, this Court definitively ruled that: … Whether or not the respondent bank was financially prejudiced is immaterial. Also, what matters is not the amount involved, be it paltry or gargantuan; rather the fraudulent scheme in which the
153
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
petitioner was involved, which constitutes a clear betrayal of trust and confidence…
D. Commission of Crime ART. 282 (D): Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
E. Analogous Causes Quarrelsome Bossy Cases Cathedral School of Technology v NLRC, 214 SCRA 551 (1992) The reason for which private respondent’s services were terminated, namely, her unreasonable behavior and unpleasant department in dealing with the people she closely works within the course of her employment, is analogous to the other “just causes” enumerated under the Labor Code, as amended. Petitioners’ averments on private respondent’s disagreeable character— “quarrelsome, bossy, unreasonable and very difficult to deal with”—are supported by various testimonies of several co-employees and students of the school. The conduct she exhibited on that occasion smacks of sheer disrespect and defiance of authority and assumes the proportion of serious misconduct or insubordination, any of which constitutes just cause for dismissal from employment. Heavylift Manila v CA, 473 SCRA 541 An employee who cannot get along with his co-employees is detrimental to the company for he can upset and strain the working environment. Without the necessary teamwork and synergy, the organization cannot function well. Thus, management has the prerogative to take the necessary action to correct the situation and protect its organization. When personal differences between employees and management affect the work environment, the peace of the company is affected. Thus, an employee’s attitude problem is a valid ground for his termination. It is a situation analogous to loss of trust and confidence that must be duly proved by the employer. Similarly, compliance with the twin requirement of notice and hearing must also be proven by the employer. However, we are not convinced that in the present case, petitioners have shown sufficiently clear and convincing evidence to justify Galay’s termination. Though they are correct in saying that in this case, proof beyond reasonable doubt is not required, still there must be substantial evidence to support the termination on the ground of attitude. The mere mention of negative feedback from her team members, and the letter dated
NIKKI HIPOLITO
NOTES
February 23, 1999, are not proof of her attitude problem. Likewise, her failure to refute petitioners’ allegations of her negative attitude does not amount to admission. Technical rules of procedure are not binding in labor cases. Besides, the burden of proof is not on the employee but on the employer who must affirmatively show adequate evidence that the dismissal was for justifiable cause. Probable Cause Cases Standard Electric Manufacturing Corp v Standard Electric Employer Union, 468 SCRA 316 (2005) While it may be true that after the preliminary investigation of the complaint, probable cause for rape was found and respondent Javier had to be detained, these cannot be made as legal bases for the immediate termination of his employment. Conviction—Moral Turpiture Cases International Rice Research Institute v NLRC, 221 SCRA 760 (1993) Article 282 of the Labor Code enumerates the just causes wherein an employer may terminate an employment. Verily, conviction of a crime involving moral turpitude is not one of these justifiable causes. Neither may said ground be justified under Article 282 (c) nor under 282 (d) by analogy. Fraud or willful breach by the employees of the trust reposed in him by his employer or duly authorized representative under Article 282 (c) refers to any fault or culpability on the part of the employee in the discharge of his duty rendering him absolutely unworthy of the trust and confidence demanded by his position. It cannot be gainsaid that the breach of trust must be related to the performance of the employee's function. On the other hand, the commission of a crime by the employee under Article 282 (d) refer to an offense against the person of his employer or any immediate member of his family or his duly authorized representative. Analogous causes must have an element similar to those found in the specific just cause enumerated under Article 282. Clearly lacking in the ground invoked by petitioner is its relation to his work or to his employer. Moral turpitude has been defined in Can v. Galing citing In Re Basa and Tak Ng v. Republic as everything which is done contrary to justice, modesty, or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes his fellowmen, or to society in general, contrary to justice, honesty, modesty or good morals. As to what crime involves moral turpitude, is for the Supreme Court to determine. Thus, the precipitate conclusion of IRRI that conviction of the crime of homicide involves moral turpitude is unwarranted considering that the said crime which resulted from an act of incomplete self-defense from
154
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
an unlawful aggression by the victim has not been so classified as involving moral turpitude. Oania v NLRC, 244 SCRA 668 (1995) Violation of a company rule prohibiting the infliction of harm or physical injury against any person under the particular circumstances provided for in the same rule may be deemed analogous to "serious misconduct" stated in Art. 282 (a) above. To repeat, however, there is no substantial evidence definitely pointing to petitioners as the perpetrators of the mauling of Malong. What is an established fact is that, after investigation, private respondent dismissed them and, thereafter, a criminal complaint was filed against petitioners. Likewise, it is of record that Malong desisted from suing the perpetrators before the regular courts. Therein, Malong stated that he was bothered by his conscience in implicating Santiago Biay, Ver Oania and Aurelio Caluza as the persons who mauled him, the truth being that they were not the real perpetrators of the said mauling but other persons whom he could not identify. In criminal cases, an affidavit of desistance may create serious doubts as to the liability of the accused. At the very least, such affidavit calls for a second hard look at the records of the case and the basis for the judgment of conviction. Thus, jurisprudence on the effect of desistance notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. In labor cases where technical rules of procedure are not to be strictly applied if the result would be detrimental to the working man, an affidavit of desistance gains added importance in the absence of any evidence on record explicitly showing that the dismissed employees committed the act which caused their dismissal. The inevitable conclusion, therefore, is that petitioners' mauling of Malong was not proved by substantial evidence and is, therefore, open to question. Lim v NLRC, 259 SCRA 485 (1996) We cannot but agree with PEPSI that "gross inefficiency" falls within the purview of "other causes analogous to the foregoing," the constitutes, therefore, just cause to terminate an employee under Article 282 of the Labor Code. 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. In Buiser vs. Leogardo, this Court ruled that failure to observed prescribed standards to inefficiency may constitute just cause for dismissal.
NIKKI HIPOLITO
NOTES
F. Others—Just Causes Claimed by Employer 1.
Abandonment Defined • The deliberate and unjustified refusal of the employee to resume his employment—form of neglect of duty. • A deliberate, unjustified refusal of an employee to resume his work, coupled with a clear absence of any intention of returning to his work.
Cases Forever Security & General Services v Flores, 532 SCRA 454 (2007) Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty; hence, a just cause for termination of employment by the employer under Article 282 of the Labor Code, which enumerates the just causes for termination by the employer. Two factors must be present in order to constitute an abandonment: (a) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship. The second is the more determinative factor and is manifested by overt acts from which it may be deduced that the employee has no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified. Mere absence from work does not imply abandonment. It is apparent from the records that respondents did not abandon their work. After their absence both Flores and Rallama reported back for work, thus negating any intent on their part to sever their employer-employee relationship with petitioner. As aptly held by the CA: It should be noted that respondent Flores worked for almost one month after the expiration of his leave while respondent Rallama reported back for work after being hospitalized but was simply told that he was on AWOL and was no longer allowed to work. Abandonment is further belied by the filing of this complaint x x x.
Nueva Ecija Electric Cooperative v NLRC, 461 SCRA 169 (2005) Abandonment is the deliberate and unjustified refusal of an employee to resume his employment; it is a form of neglect of duty; hence, a just cause for termination of employment by the employer under Article 282 of the Labor Code, which enumerates the just causes for termination by the employer: i.e., (a) serious misconduct or wilful disobedience by the employee of the lawful orders of his employer or the latter’s representative in connection with the employee’s work; (b) gross and habitual neglect by the employee of his duties; (c) fraud or wilful breach by the employee of the trust reposed in him by his employer or his duly authorized representative;
155
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
(d) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) other analogous causes. Private respondent’s alleged abandonment of work through his employment with the Provincial Government of Nueva Ecija was not clearly established and proven. The evidence submitted by petitioner to buttress its allegation that private respondent abandoned his work consists merely of indexes of payments to employees under the name Eduardo Caimay without any further evidence showing that Eduardo Caimay and private respondent Eduardo Cairlan is one and the same person. The best evidence that could have established the allegation that Eduardo Caimay and private respondent Eduardo Cairlan is one and the same person is Eduardo Caimay’s Personal Data Sheet which definitely would have the pertinent personal information about him and a picture that would identify him and not a testimony of a representative from the Provincial Government of Nueva Ecija, as adverted to by petitioner to justify its motion for a trial type hearing. Gabuay v Oversea Paper Supply, Inc, 436 SCRA 514 (2004) As correctly ruled by the Labor Arbiter, the NLRC and the CA, the petitioners were not illegally dismissed. Even after the petitioners received notices from the respondent corporation requiring them to report for work and to explain their unauthorized absences and failure to submit their updated bio-data, they still failed to report for work. It can then be inferred that the petitioners had abandoned their work. Indeed, the factors considered for finding a valid abandonment are present in the case at bar: the petitioners' failure to report for work or absence was without valid or justifiable cause, and their refusal to report for work notwithstanding their receipt of letters requiring them to return to work, show their clear intention to sever the employer-employee relationship. Mame v CA, 520 SCRA 552 (2007) In cases where abandonment is the cause for termination of employment, two factors must concur: (1) there is a clear, deliberate and unjustified refusal to resume employment; and (2) a clear intention to sever the employer-employee relationship. The burden of proof that there was abandonment lies with the employer. Where the employee takes steps to protest his layoff, it cannot be said that he has abandoned his work because a charge of abandonment is totally inconsistent with the immediate filing of a complaint for illegal dismissal, more so when it includes a prayer for reinstatement. There is logic in the finding of the NLRC that it was quite improbable for petitioner to have abandoned his job after having been employed with respondents for twelve years. If, as the CA ruled, petitioner had decided to do so, petitioner should have immediately left Baguio City to file his
NIKKI HIPOLITO
NOTES
complaint; however, he remained in the workers’ barracks until September 28, 2001. Requisites • Failure to report for work or absence without valid or justifiable reason • A clear intention, as manifested by some overt act, to sever the employer-employee relationship No Abandonment • Mere absence from work, especially when the employee has been verbally told not to report, cannot by itself constitute abandonment • Employees do not need to take their meals within the company premises. The act of going home to have dinner does NOT constitute abandonment. • The act of leaving workplace to relieve himself can hardly be characterized as abandonment, much less a willful or intentional disobedience of company rules since he was merely answering the call of nature over which he had no control. NOTES • Employer has the burden of proving abandonment • Filing of a complaint for illegal dismissal against the employer is a clear indication that the employee has not given up his work. Cases NS Transport Services, Inc v Zeta, 520 SCRA 261 (2007) It bears emphasis that for termination of employment on the ground of abandonment to be considered valid, the employer must prove, by substantial evidence, the concurrence of two essential requisites: first, the failure of the employee to report for work or his absence from work without valid or justifiable reason; and second, his clear and deliberate intention to discontinue his employment. The second requisite, considered to be the more crucial one, may be established by evidence of overt acts on the part of the employee from which may be inferred a lack of intention to resume his work. Leonardo v NLRC, 333 SCRA 589 (2000) Neither can we say that FUERTE's actions are indicative of abandonment. To constitute such a ground for dismissal, there must be (1) failure to report for work or absence without valid or justifiable reason; and (2) a clear intention, as manifested by some overt acts, to sever the employeremployee relationship. We have accordingly held that the filing of a complaint for illegal dismissal, as in this case, is inconsistent with a charge of abandonment.
156
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
R.P. Dinglasan Construction Inc v Atienza, 433 SCRA 263 (2004) To constitute abandonment of work, two (2) requisites must concur: first, the employee must have failed to report for work or must have been absent without justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship as manifested by overt acts. Abandonment as a just ground for dismissal requires deliberate, unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work, after notice to return, is not enough to amount to abandonment.
who takes steps to protest his dismissal cannot logically be said to have abandoned his work. The filing of such complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment. 2. Absenteeism Cases City Trading Inc v Balajadia, 498 SCRA 309 (2006) Petitioners contend that respondent’s intention to abandon his work can be gleaned from his history of absenteeism, his request for a Certificate of Employment, and the belated filing of the complaint for illegal dismissal.
Chavez v NLRC, 448 SCRA 478 (2005) As a rule, the employer bears the burden to prove that the dismissal was for a valid and just cause. In this case, the respondents failed to prove any such cause for the petitioner’s dismissal. They insinuated that the petitioner abandoned his job. To constitute abandonment, these two factors must concur: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship. Obviously, the petitioner did not intend to sever his relationship with the respondent company for at the time that he allegedly abandoned his job, the petitioner just filed a complaint for regularization, which was forthwith amended to one for illegal dismissal. A charge of abandonment is totally inconsistent with the immediate filing of a complaint for illegal dismissal, more so when it includes a prayer for reinstatement.
We hold that absenteeism per se is not an overt act which would prove an unequivocal intent on the part of the employee to discontinue employment. In the case at bar, respondent was able to explain his alleged absenteeism. He did not report for work beginning January 7, 2001 because the chief mechanic and cousin of petitioner informed him that he may continue working but should not expect to be paid his salary. Later, the company secretary and sister of petitioner John Edles told him point-blank that his services have already been terminated. Petitioners neither controverted nor denied these incidents.
Floren Hotel v NLRC, 458 SCRA 128 (2005) In our view, petitioners failed to adduce sufficient evidence to prove the charge of abandonment. Petitioners merely presented joint affidavits from hotel supervisors Agustin Aninag and Lourdes Cantago and other hotel employees showing that Calimlim, Rico, and Bautista simply went on absence without leave after they were confronted with certain irregularities, and that Abalos and Lopez likewise just left their employment, also without filing leaves of absence. Those joint affidavits, however, are insufficient as they do not show that the absence of Calimlim, Rico, Bautista, Abalos and Lopez were unjustified. More important, they do not show any overt act that proves that private respondents unequivocally intended to sever their working relationship with the petitioners. We have held that mere absence from work does not constitute abandonment. GSP Manufacturing Corp v Cabanban, 495 SCRA 123 (2006) Abandonment as a just ground for dismissal requires the deliberate, unjustified refusal of the employee to perform his employment responsibilities. Mere absence or failure to work, even after notice to return, is not tantamount to abandonment. The records are bereft of proof that petitioners even furnished respondent such notice.
Inference Cases Hacienda Dapdap v NLRC, 285 SCRA 9 (1998) It has been said that abandonment of position cannot be lightly inferred, much less legally presumed from certain equivocal acts such as an interim employment. Specific Acts Cases Premiere Development Bank v NLRC (293 SCRA 49 (1998) Abandoning one's job means the deliberate, unjustified refusal of the employee to resume his employment and the burden of proof is on the employer to show a clear and deliberate intent on the part of the employee to discontinue employment. The law, however, does not enumerate what specific overt acts can be considered as strong evidence of the intention to sever the employee-employer relationship. An employee who merely took steps to protest her indefinite suspension and to subsequently file an action for damages, cannot be said to have abandoned her work nor is it indicative of an intention to sever the employer-employee relationship. Her failure to report for work was due to her indefinite suspension. Petitioner's allegation of abandonment is further belied by the fact that private respondent filed a complaint for illegal dismissal. Abandonment of work is inconsistent with the filing of said complaint.
Furthermore, it is a settled doctrine that the filing of a complaint for illegal dismissal is inconsistent with abandonment of employment. An employee NIKKI HIPOLITO
157
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
1.
Loans Borrowing Money • Borrowing money is neither dishonest, nor immoral, nor illegal much less criminal. • BUT, said act becomes a serious misconduct that may justly be asserted as a ground for dismissal WHEN REPREHENSIBLE BEHAVIOR SUCH AS THE USE OF A TRUST RELATIONSHIP AS A LEVERAGE FOR BORROWING MONEY is involved.
Cases Medical Doctors Inc v NLRC, 136 SCRA 1 (1985) As stressed by the labor arbiter in the aforequoted paragraphs, borrowing money is neither dishonest, nor immoral nor illegal, much less criminal. Private respondent paid the money she borrowed from the hospital patient. She was even recommended for permanent appointment from her probationary status, from clerk to secretary, by her immediate superior, Sis. Consolacion Briones. It may be added that she must have been compelled to borrow P50.00 from her patient because of economic necessity, which circumstance should evoke sympathy from this Court, the very constitutional organ mandated by the fundamental law to implement the social justice guarantee for the protection of the lowly, efficient and honest employee, who is economically disadvantaged, like herein petitioner! Pearl S. Buck Foundation Inc v NLRC, 182 SCRA 446 (1990) However, said act becomes a serious misconduct that may justly be asserted as a ground for dismissal when reprehensible behavior such as the use of a trust relationship as a leverage for borrowing money is involved. A recipient of largesse may be so grateful that out of a sense of "utang na loob" she may lend money to an employee or relative of a benefactor believing that the loan would be paid anyway In this case, the fact that Aliarte has retracted her complaint is of no moment. She loaned money to the respondent, not once but twice and there can be no other assumption where the money came from except from the trust funds intended for the ward. 2. Courtesy Resignation Cases Batongbacal v Associated Bank, 168 SCRA 600 (1989) While it may be said that the private respondent's call for courtesy resignations was prompted by its determination to survive, we cannot lend legality to the manner by which it pursued its goal. By directing its employees to submit letters of courtesy resignation, the bank in effect forced upon its employees an act which they themselves should voluntarily do. It should be emphasized that resignation per se means voluntary NIKKI HIPOLITO
NOTES
relinquishment of a position or office. Adding the word "courtesy" did not change the essence of resignation. That courtesy resignations were utilized in government reorganization did not give private respondent the right to use it as well in its own reorganization and rehabilitation plan. There is no guarantee that all employers will not use it to rid themselves arbitrarily of employees they do not like, in the guise of "streamlining" its organization. On the other hand, employees would be unduly exposed to outright termination of employment, which is anathema to the constitutional mandate of security of tenure. 3.
Work Attitude Absences
Cases Manila Electric Co v NLRC, 263 SCRA 531 (1996) In the case at bar, the service record of private respondent with petitioner is perpetually characterized by unexplained absences and unauthorized sick leave extensions. The nature of his job i.e. as a lineman-driver requires his physical presence to minister to incessant complaints often faulted with electricity. As aptly stated by the Solicitor General: Habitual absenteeism of an errant employee is not concordant with the public service that petitioner has to assiduously provide. To have delayed power failure in a certain district simply because a MERALCO employee assigned to such area was absent and cannot immediately be replaced is a breach of public service of the highest order. A deep sense of duty would, therefore, command that private respondent should, at the very least, limit his absence for justifiable reasons. The penchant of private respondent to continually incur unauthorized absences and/or a violation of petitioner's sick leave policy finally rendered his dismissal as imminently proper. Private respondent cannot expect compassion from this Court by totally disregarding his numerous previous infractions and take into consideration only the period covering August 2, 1989 to September 19, 1989. As ruled by this Court in the cases of Mendoza v. National Labor Relations Commission, and National Service Corporation v. Leogardo, Jr., it is the totality, not the compartmentalization, of such company infractions that private respondent had consistently committed which justified his penalty of dismissal. GSP Manufacturing Corp v Cabanban, 495 SCRA 123 (2006) Mere absence or failure to work, even after notice to return, is not tantamount to abandonment. The records are bereft of proof that petitioners even furnished respondent such notice.
158
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
4. Term Employment Cases Brent School v Zamora, 181 SCRA 702 (1990) Criteria under which “Term Employment” does NOT circumvent SECURITY OF TENURE • 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 • It satisfactorily appears that the employer and the employee dealt with each other or more or less equal terms with no moral dominance exercised by the former or the latter. Romares v NLRC, 294 SCRA 411 (1998) At this juncture, the leading case of Brent School, Inc. vs. Zamora proves instructive. As reaffirmed in subsequent cases, this Court has upheld the legality of fixed-term employment. It ruled that the decisive determinant in "term employment" should not be the activities that the employee is called upon to perform but the day certain agreed upon by the parties for the commencement and termination of their employment relationship. But this Court went on to say that where from the circumstances it is apparent that the periods have been imposed to preclude acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy and morals. The Brent ruling also laid down the criteria under which "term employment" cannot be said to be in circumvention of the law on security of tenure: 1) 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 2) 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. None of these requisites were complied with. Medenilla v Phil. Veterans Bank, 328 SCRA 1 (2000) The Court has repeatedly upheld the validity of fixed-term employment. In the case of Philippine National Oil Company-Energy Development Corporation vs. NLRC, it was held: As can be gleaned from the said case, the two guidelines by which fixed contracts of employment can be said NOT to circumvent security of tenure, are either: 1.
NOTES
pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; OR 2.
It satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter.
Magsalin v National Organization of Working Men, G.R. No. 148492, May 09, 2003 The repeated rehiring of respondent workers and the continuing need for their services clearly attest to the necessity or desirability of their services in the regular conduct of the business or trade of petitioner company. The Court of Appeals has found each of respondents to have worked for at least one year with petitioner company. While this Court, in Brent School, Inc. vs. Zamora, has upheld the legality of a fixed-term employment, it has done so, however, with a stern admonition that where from the circumstances it is apparent that the period has been imposed to preclude the acquisition of tenurial security by the employee, then it should be struck down as being contrary to law, morals, good customs, public order and public policy. The pernicious practice of having employees, workers and laborers, engaged for a fixed period of few months, short of the normal six-month probationary period of employment, and, thereafter, to be hired on a day-to-day basis, mocks the law. Any obvious circumvention of the law cannot be countenanced. The fact that respondent workers have agreed to be employed on such basis and to forego the protection given to them on their security of tenure, demonstrate nothing more than the serious problem of impoverishment of so many of our people and the resulting unevenness between labor and capital. A contract of employment is impressed with public interest. The provisions of applicable statutes are deemed written into the contract, and "the parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other." Labayog v M.Y. San Biscuits, Inc, 494 SCRA 486 (2006) Contracts of employment for a fixed period are not unlawful. What is objectionable is the practice of some scrupulous employers who try to circumvent the law protecting workers from the capricious termination of employment. Employers have the right and prerogative to choose their workers. "The law, while protecting the rights of the employees, authorizes neither the oppression nor destruction of the employer. When the law angles the scales of justice in favor of labor, the scale should never be so tilted if the result is an injustice to the employer."
The fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper
NIKKI HIPOLITO
159
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
5.
Past Infractions Past Offenses
Cases Acebedo Optical v NLRC, 527 SCRA 655 (2007) Accordingly, the finding that the alleged absences and incidences of tardiness of private respondent are but past infractions for which petitioners had already imposed several sanctions and for which private respondent had been duly penalized. And being past infractions, they cannot be taken collectively as a justification for the dismissal from service of the employee. Stellar Industrial Service Inc v NLRC, 252 SCRA 323 (1996) Furthermore, as correctly observed by the labor arbiter, those past infractions had either been "satisfactorily explained, not proven, sufficiently penalized or condoned by the respondent." In fact, the termination notice furnished Pepito only indicated that he was being dismissed due to his absences from November 2, 1990 to December 10, 1990 supposedly without any acceptable excuse therefor. There was no allusion therein that his dismissal was due to his supposed unexplained absences on top of his past infractions of company rules. To refer to those earlier violations as added grounds for dismissing him is doubly unfair to private respondent. Significantly enough, no document or any other piece of evidence was adduced by petitioner showing previous absences of Pepito, whether with or without official leave. La Carlota Planters Association v NLRC, 298 SCRA 252 (1998) The reliance by petitioners on the past offenses of private respondent supposedly dictating his eventual dismissal is unavailing. The correct rule has always been that such previous offenses may be so used as valid justification for dismissal from work only if the infractions are related to the subsequent offense upon which basis the termination of employment is decreed. The previous infraction, in other words, may be used if it has a bearing to the proximate offense warranting dismissal. 6.
Professional Training Residency Training
Cases Felix v Buenaseda, 240 SCRA 139 (1995) A residency or resident physician position in a medical specialty is never a permanent one. Residency connotes training and temporary status. It is the step taken by a physician right after post-graduate internship (and after hurdling the Medical Licensure Examinations) prior to his recognition as a specialist or sub-specialist in a given field. Under this system, residents, specialty those in university teaching hospitals enjoy their right to security of tenure only to the extent that they periodically make the grade, making the situation quite unique as far as NIKKI HIPOLITO
NOTES
physicians undergoing post-graduate residencies and fellowships are concerned. While physicians (or consultants) of specialist rank are not subject to the same stringent evaluation procedures, specialty societies require continuing education as a requirement for accreditation for good standing, in addition to peer review processes based on performance, mortality and morbidity audits, feedback from residents, interns and medical students and research output. The nature of the contracts of resident physicians meet traditional tests for determining employer-employee relationships, but because the focus of residency is training, they are neither here nor there. Moreover, stringent standards and requirements for renewal of specialist-rank positions or for promotion to the next post-graduate residency year are necessary because lives are ultimately at stake. 7.
Love and Morals Immortality
Cases Santos v NLRC, 287 SCRA 117 (1998) On the outset, it must be stressed that to constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. America jurisprudence has defined immorality as a course of conduct which offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate, the same including sexual misconduct. Thus, in petitioner's case, the gravity and seriousness of the charges against him stem from his being a married man and at the same time a teacher. Accordingly, teachers must abide by a standard of personal conduct which not only proscribes the commission of immoral acts, but also prohibits behavior creating a suspicion of immorality because of the harmful impression it might have on the students. Likewise, they must observe a high standard of integrity and honesty. From the foregoing, it seems obvious that when a teacher engages in extramarital relationship, especially when the parties are both married, such behavior amounts to immorality, justifying his termination from employment. Having concluded that immorality is a just cause for dismissing petitioner, it is imperative that the private respondent prove the same. Since the burden of proof rests upon the employer to show that the dismissal was for a just and valid cause, the same must be supported by substantial evidence. Love Cases Chua-Qua v Clave, 189 SCRA 117 (1990) With the finding that there is no substantial evidence of the imputed
160
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
immoral acts, it follows that the alleged violation of the Code of Ethics governing school teachers would have no basis. Private respondent utterly failed to show that petitioner took advantage of her position to court her student. If the two eventually fell in love, despite the disparity in their ages and academic levels, this only lends substance to the truism that the heart has reasons of its own which reason does not know. But, definitely, yielding to this gentle and universal emotion is not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores. Duncan Association v Glaxo-Wellcome, 438 SCRA 278 (2004) Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive pharmaceutical industry. The prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees is reasonable under the circumstances because relationships of that nature might compromise the interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on investments and to expansion and growth. Indeed, while our laws endeavor to give life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers. The law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of fair play. 8. Violation of Company Rules Cases Aparente Sr v NLRC, 331 SCRA 82 (2000) The petitioner's dismissal is justified by company rules and regulations. It is true that his violation of company rules is his first offense. Nonetheless, the damage caused to private respondent amounted to more than P5,000.00, thus, the penalty of discharge is properly imposable as provided by Section 12 of Rule 005-85 of CCBPI's Code of Disciplinary Rules and Regulations. It is recognized that company policies and regulations, unless shown to be grossly oppressive or contrary to law, are generally valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or preferably through negotiation, by competent authority. The Court has upheld a company's management prerogatives so long as they are exercised in good faith for the advancement of the employer's interest NIKKI HIPOLITO
NOTES
and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. 9.
Criminal Case Effect of Acquittal
Cases Ramos v NLRC, 298 SCRA 225 (1998) Similarly, it is a well established rule that the dismissal of the criminal case against an employee shall not necessarily be a bar to his dismissal from employment on the ground of loss of trust and confidence. Conviction Cases Sampaguita Garments Corp v NLRC, 233 SCRA 260 (1994) The private respondent’s conviction of the crime of theft of property belonging to the petitioner has affirmed the existence of a valid ground for her dismissal and thus removed the justification for the administrative decision ordering her reinstatement with back wages. Nevertheless, the petitioner is still subject to sanction for its failure to accord the private respondent the right to an administrative investigation in conformity with the procedural requirements of due process. Dismissal—Criminal Cases Cases Lacorte v Inciong, 166 SCRA 1 (1988) As we have already ruled, "the conviction of an employee in a criminal case is not indispensable to warrant his dismissal, and the fact that a criminal complaint against the employee has been dropped by the fiscal is not binding and conclusive upon a labor tribunal. Guilt or Innocence Cases Chua v NLRC, 218 SCRA 545 (1993) In Pepsi Cola Bottling Company of the Philippines v. Guanzon, we held that: "Private respondent's guilt or innocence in the criminal case is not determinative of the existence of a just or authorized cause for his dismissal". This doctrine follows from the principle that the quantum and weight of evidence necessary to sustain conviction in criminal cases are quite different from the quantum of evidence necessary for affirmance of a decision of the Labor Arbiter and of the NLRC. 10. Moonlighting Cases Agabon v NLRC, 442 SCRA 573 (2004) In Sandoval Shipyard v. Clave, we held that an employee who deliberately absented from work without leave or permission from his employer, for the purpose of looking for a job elsewhere, is considered to have abandoned his job. We should apply that rule with more reason here where petitioners
161
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
were absent because they were already working in another company. The law imposes many obligations on the employer such as providing just compensation to workers, observance of the procedural requirements of notice and hearing in the termination of employment. On the other hand, the law also recognizes the right of the employer to expect from its workers not only good performance, adequate work and diligence, but also good conduct and loyalty. The employer may not be compelled to continue to employ such persons whose continuance in the service will patently be inimical to his interests. 11. Suspicion Cases Eastern Telecommunications Phils Inc v Diane, 491 SCRA 239 (2006) Undoubtedly, it cannot be presumed that Diamse misappropriated the funds because to do so would do violence to her right to security of tenure and the well-settled rule that the burden of proof is on the employer to establish the ground for dismissal. Suspicion has never been a valid ground for dismissal and the employee’s fate cannot, in justice, be hinged upon conjectures and surmises. 12. Acting Appointment Cases Aklan College Inc v Guarino, 530 SCRA 40 (2007) This Court has held that an acting appointment is merely temporary, or one which is good until another appointment is made to take its place. And if another person is appointed, the temporary appointee should step out and cannot even dispute the validity of his successor’s appointment. The undisturbed unanimity of cases is that one who holds a temporary appointment has no fixed tenure of office; his employment can be terminated anytime at the pleasure of the appointing power without need to show that it is for cause. 13. Graceful Exit Cases Cathay Pacific Airways v Marin, 501 SCRA 401 (2006) In fact, Leviste even went out of her way to suggest to respondent to resign voluntarily, or else face the adverse consequences of not being extended regular employment on account of unsatisfactory work performance; had he resigned voluntarily before the expiry of the probationary period, he would have brighter prospects of employment with another airline or other business entities. However, respondent rejected the suggestion and opted to file his complaint with the NLRC. A decision of petitioner to afford respondent a graceful exit is perfectly within its discretion.
NIKKI HIPOLITO
NOTES
14.06 Transfers—Discharge and Suspension Cases Lanzaderas v Amethyst Security and General Services Inc, 404 SCRA 505 (2003) Security of tenure, although provided in the Constitution, does not give an employee an absolute vested right in a position as would deprive the company of its prerogative to change their assignment or transfer them where they will be most useful. When a transfer is not unreasonable, nor inconvenient, nor prejudicial to an employee; and it does not involve a demotion in rank or diminution of his pay, benefits, and other privileges, the employee may not complain that it amounts to a constructive dismissal. Case law recognizes the employer’s right to transfer or assign employees from one area of operation to another, or one office to another or in pursuit of its legitimate business interest, provided there is no demotion in rank or diminution of salary, benefits and other privileges and not motivated by discrimination or made in bad faith, or effected as a form of punishment or demotion without sufficient cause. This matter is a prerogative inherent in the employer’s right to effectively control and manage the enterprise. Westin Phil. Plaza Hotel v NLRC, 306 SCRA 631 (1999) On the issue of legality and reasonableness of the order of transfer, it must be emphasized that this Court has recognized and upheld the prerogative of management to transfer an employee from one office to another within the business establishment, provided that there is no demotion in rank or a diminution of his salary, benefits and other privileges. This is a privilege inherent in the employer's right to control and manage its enterprise effectively. Besides, it is the employer's prerogative, based on its assessment and perception of its employee's qualifications, aptitudes and competence, to move him around in the various areas of its business operations in order to ascertain where the employee will function with utmost efficiency and maximum productivity or benefit to the company. An employee's right to security of tenure does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. Castillo v NLRC, 308 SCRA 326 (1999) In case of a constructive dismissal, the employer has the burden of proving that the transfer and demotion of an employee are for valid and legitimate ground, i.e., that the transfer is not unreasonable inconvenient, or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Where the employer fails to overcome this burden of proof, the employee's demotion shall no doubt be tantamount to unlawful constructive dismissal. OSS Security and Allied Services Inc v NLRC, 325 SCRA 157 (2000) In the employment of personnel, the employer can prescribe the hiring,
162
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and the discipline, dismissal and recall of work, subject only to limitations imposed by laws. Thus, the transfer of an employee ordinarily lies within the ambit of management prerogatives. However, a transfer amounts to constructive dismissal when the transfer is unreasonable, inconvenient, or prejudicial to the employee, and it involves a demotion in rank or diminution of salaries, benefits and other privileges. In the case at bench, nowhere in the record does it show that that the transfer of private respondent was anything but done in good faith, without grave abuse of discretion, and in the best interest of the business enterprise. Mendoza v Rural Bank, 433 SCRA 756 (2004) In the pursuit of its legitimate business interest, management has the prerogative to transfer or assign employees from one office or area of operation to another -- provided there is no demotion in rank or diminution of salary, benefits, and other privileges; and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. This privilege is inherent in the right of employers to control and manage their enterprise effectively. The right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. Resignation and Effectivity Cases EMCO Plywood Corp v Abelgas, 427 SCRA 496 (2004) Moreover, resignation is the voluntary act of employees who are compelled by personal reasons to dissociate themselves from their employment. It must be done with the intention of relinquishing an office, accompanied by the act of abandonment. Therefore, it would have been illogical for respondents to resign and then file a Complaint for illegal dismissal. Resignation is inconsistent with the filing of the Complaint. Shie Jie Corporation/Seastar Ex-im Corporation v National Federation of Labor, 463 SCRA 569 (2005) Voluntary resignation is defined as the act of an employee, who finds himself in a situation in which he believes that personal reasons cannot be sacrificed in favor of the exigency of the service; thus, he has no other choice but to disassociate himself from his employment. Acceptance of a resignation tendered by an employee is necessary to make the resignation effective. No such acceptance, however, was shown in the instant case.
NIKKI HIPOLITO
NOTES
Moreover, the fact that respondents immediately filed a complaint for illegal dismissal against petitioners and repudiated their alleged resignation completely negated petitioners’ claim that they voluntarily resigned. Abolition of Position Cases Benguet Electric Corp v Verzosa, 425 SCRA 41 (2004) The abolition of a position deemed no longer necessary is a management prerogative, and this Court, absent any findings of malice and arbitrariness on the part of management, will not efface such privilege if only to protect the person holding that office. Dishonesty Cases Naguit v NLRC, 408 SCRA 617 (2003) The Court credits that Naguit was in good faith when he did not correct the entry in the Notice of Overtime and Timesheet reflecting that he worked up to 5PM instead of 12PM. The charge of falsification against him does NOT lie. In labor cases, the Court has consistently held that where the adverse party is deprived of opportunity to cross-examine the affiants, affidavits are generally rejected for being hearsay, unless the affiant themselves are place on the witness stand to testify thereon. Thus, such affidavits of Cabuhat are inadmissible as evidence against Naguit. Constructive Discharge—Defined Cases Fungo v Lourdes School of Mandaluyong, 528 SCRA 248 (2007) Thus, we rule that petitioner was constructively dismissed from her employment. There is constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him except to forego her continued employment. It exists where there is cessation of work because “continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay.” Respondent Fr. Bustamante claimed that he had lost trust and confidence in petitioner. Under this circumstance, coupled with Fr. Remirez’s threat that she would not be given her separation pay, petitioner was compelled to resign. Philippine-Japan Active Carbon Corp v NLRC, 171 SCRA 164 (1989) A constructive discharge is defined as: "A quitting because continued employment is rendered impossible, unreasonable or unlikely; as, an offer involving a demotion in rank and a diminution in pay." Dusit Hotel Nikko v National Union in Hotel, Restaurant and Allied Industries, 466 SCRA 374 (2005) We agree with the contention of the petitioners that it is the prerogative of
163
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
management to transfer an employee from one office to another within the business establishment based on its assessment and perception of the employee’s qualification, aptitude and competence, and in order to ascertain where he can function with the maximum benefit to the company. However, this Court emphasized that: But, like other rights, there are limits thereto. The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. In particular, the employer must be able to show that the transfer is not unreasonable, inconvenient or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Should the employer fail to overcome this burden of proof, the employee’s transfer shall be tantamount to constructive dismissal, which has been defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely; as an offer involving a demotion in rank and diminution in pay.
at bar, petitioner committed constructive dismissal when it offered to reassign private respondents to another company but with no guaranteed working hours and payment of only the minimum wage. The terms of the redeployment thus became unacceptable for private respondents and foreclosed any choice but to reject petitioner’s offer, involving as it does a demotion in status and diminution in pay. Thereafter, for six (6) months, private respondents were in a floating status. Interestingly, it was only after private respondents filed a complaint with the DOLE that petitioner backtracked in its position and offered to reinstate private respondents to their former job in Shell Corporation with no diminution in salary. Eventually, however, petitioner unilaterally withdrew its offer of reinstatement, refused to meet with the private respondents and instead decided to dismiss them from service.
There is constructive dismissal when there is a demotion in rank and/or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee.
Acuna v CA, 489 SCRA 568 (2006) As we have held previously, constructive dismissal covers the involuntary resignation resorted to when continued employment becomes impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to an employee.
Mobile Protective and Detective Agency v Ompad, 458 SCRA 308 (2005) What is more, respondent should be deemed as constructively dismissed when he tendered his resignation letters on September 23, 1998. Constructive dismissal is "a quitting because continued employment is rendered impossible, unreasonable or unlikely, as, an offer involving a demotion in rank and diminution in pay." Duncan Association v Glaxo Wellcome Phils, 438 SCRA 278 (2004) Constructive dismissal is defined as a quitting, an involuntary resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely; when there is a demotion in rank or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. None of these conditions are present in the instant case. The record does not show that Tescon was demoted or unduly discriminated upon by reason of such transfer. Dinglasan v Atienza, 433 SCRA 263 (2004) We hold that private respondents were constructively dismissed by petitioner. Constructive dismissal is defined as quitting when continued employment is rendered impossible, unreasonable or unlikely as the offer of employment involves a demotion in rank and diminution of pay. In the case NIKKI HIPOLITO
Go v CA, 430 SCRA 358 (2004) Constructive dismissal exists where there is a cessation of work because continued employment is rendered impossible, unreasonable or unlikely. It is present when an employee's functions, which were originally supervisory in nature, were reduced, and such reduction is not grounded on valid grounds such as genuine business necessity.
In this case, the appellate court found that petitioners did not deny that the accommodations were not as homely as expected. In the petitioners’ memorandum, they admitted that they were told by the principal, upon their arrival, that the dormitory was still under construction and were requested to bear with the temporary inconvenience and the dormitory would soon be finished. We likewise note that petitioners did not refute private respondents’ assertion that they had deployed approximately sixty other workers to their principal, and to the best of their knowledge, no other worker assigned to the same principal has resigned, much less, filed a case for illegal dismissal. To our mind these cited circumstances do not reflect malice by private respondents nor do they show the principal’s intention to subject petitioners to unhealthy accommodations. Under these facts, we cannot rule that there was constructive dismissal. Poseidon Fishing v NLRC, 482 SCRA 717 (2006) To recapitulate, it was after 12 long years of having private respondent under its wings when petitioners, possibly sensing a brewing brush with the
164
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
law as far as private respondent’s employment is concerned, finally found a loophole to kick private respondent out when the latter failed to properly record a 7:25 a.m. call. Capitalizing on this faux pas, petitioner summarily dismissed private respondent. On this note, we disagree with the finding of the NLRC that private respondent was negligent on account of his failure to properly record a call in the log book. A review of the records would ineluctably show that there is no basis to deduct six months’ worth of salary from the total separation pay that private respondent is entitled to. We note further that the NLRC’s finding clashes with that of the Labor Arbiter which found no such negligence and that such inadvertence on the part of private respondent, at best, constitutes simple negligence punishable only with admonition or suspension for a day or two. Constructive Discharge and Illegal Dismissal Cases Mark Roche International v NLRC, 313 SCRA 356 (1999) However, it must be made clear here that the dismissal of private respondents was not a constructive dismissal but an illegal dismissal, and this is where both the NLRC and the Labor Arbiter erred. Constructive dismissal or a constructive discharge has been defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and; a diminution in pay.3 In the instant case, private respondents were not demoted in rank nor their pay diminished considerably. They were simply told without prior warning or notice that there was no more work for them. After receiving the notice of hearing of the petition for certification election on 27 October 1992, petitioners immediately told private respondents that they were no longer employed. Evidently it was the filing of the petition for certification election and organization of a union within the company which led petitioners to dismiss private respondents and not petitioners' allegations of absence or abandonment by private respondents. The formation of a labor union has never been a ground for valid termination, and where there is an absence of clear, valid and legal cause, the law considers the termination illegal. Globe Telecom Inc v Florendo, 390 SCRA 201 (2003) In constructive dismissal, the employer has the burden of proving that the transfer and demotion of an employee are for just and valid grounds such as genuine business necessity. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee. It must not involve a demotion in rank or a diminution of salary and other benefits. If the employer cannot overcome this burden of proof, the employee's demotion shall be tantamount to unlawful constructive dismissal.
NOTES
Preventive Suspension Cases Community Rural Bank v Paez, 508 SCRA 245 (2007) Be that as it may, the Court finds that respondent’s suspension from April 11, 1997 until he was dismissed from employment on August 15, 1997, for a total of one hundred twenty-six (126) days, is clearly beyond the maximum period allowed by law. The Implementing Rules of Book V: Rule XXIII (Termination of Employment) of the Labor Code provides: Sec. 9. Period of suspension. - No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearings, to dismiss the worker. The rule clearly provides that a preventive suspension shall not exceed a maximum period of thirty (30) days, after which period the employee must be reinstated to his former position. If the suspension is otherwise extended, the employee shall be entitled to his salaries and other benefits that may accrue to him during the period of such suspension. Thus, respondent is entitled to backwages for ninety-six (96) days or the period of his preventive suspension beyond the maximum thirty-day period allowed by law. Globe-Mackay Cable and Radio Corp v NLRC, 206 SCRA 702 (1992) The inestigative findings of Mr. Maramara, which pointed to Delfin Saldivar's acts in conflict with his position as technical operations manager, necessitated immediate and decisive action on any employee closely, associated with Saldivar. The suspension of Salazar was further impelled by th.e discovery of the missing Fedders airconditioning unit inside the apartment private respondent shared with Saldivar. Under such circumstances, preventive suspension was the proper remedial recourse available to the company pending Salazar's investigation. By itself, preventive suspension does, not signify that the company has adjudged the employee guilty of the charges she was asked to answer and explain. Such disciplinary measure is resorted to for the protection of the company's property pending investigation any alleged malfeasance or misfeasance committed by the employee. PAL v NLRC, 292 SCRA 40 (1998) Preventive suspension is a disciplinary measure for the protection of the
NIKKI HIPOLITO
165
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. Valiao v CA, 435 SCRA 543 (2004) Finally, the Labor Arbiter found that petitioner is entitled to salary differentials for the period of his preventive suspension, as there is no sufficient basis shown to justify his preventive suspension. During the pendency of the investigation, the employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to life or property of the employer or of his co-workers. But in this case, there is no indication that petitioner posed a serious threat to the life and property of the employer or his co-employees. Neither was it shown that he was in such a position to unduly influence the outcome of the investigation. Hence, his preventive suspension could not be justified, and the payment of his salary differentials is in order. Cadiz v CA, 474 SCRA 232 (2005) Preventive suspension, which is never obligatory on the part of the employer, may be resorted to only when the continued employment of the employee poses “a serious and imminent threat to the life or property of the employer or of his co-workers.” Maricalum Mining Corp v Decorion, 487 SCRA 182 (2006) The Rules are explicit that preventive suspension is justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of the employee’s co-workers. Without this kind of threat, preventive suspension is not proper. Pido v NLRC, 516 SCRA 609 (2007) The allowable period of suspension in such a case is not six months but only 30 days, following Sections 8 and 9 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code (Implementing Rules), viz: SEC. 8. Preventive suspension. - The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. SEC. 9. Period of suspension. - No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be NIKKI HIPOLITO
NOTES
bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. (Emphasis, italics, and underscoring supplied) As above-quoted Section 9 of the said Implementing Rules expressly provides, in the event the employer chooses to extend the period of suspension, he is required to pay the wages and other benefits due the worker and the worker is not bound to reimburse the amount paid to him during the extended period of suspension even if, after the completion of the hearing or investigation, the employer decides to dismiss him. Rationale Cases Kwikway Engineering Works v NLRC, 195 SCRA 526 (1991) Further, the preventive suspension of respondent Vargas for an indefinite period amounted to a dismissal and is violative of Section 4, Rule XIV of the Implementing Rules of the Labor Code which limits the preventive suspension to thirty (30) days. The said rule also provides that "the employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker." (Pacific Cement Company Inc. v. NLRC, G.R. Nos. 78871-72, May 5, 1989, 173 SCRA 192). Gatbonton v NLRC, 479 SCRA 416 (2006) Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. However, when it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension. Number Offenses Cases Aparente v NLRC, 331 SCRA 82 (2003) In the case of Camua v. NLRC, the Court laid down the guidelines in the grant of separation pay to a lawfully dismissed employee, thus: We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to
166
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice. In the instant case, we find the award to petitioner of separation pay by way of financial assistance equivalent to one-half (1/2) month's pay for every year of service equitable. Although meriting termination of employment, petitioner's infraction is not so reprehensible nor unscrupulous as to warrant complete disregard for the fact that this is his first offense in an employment that has spanned eighteen (18) long years.
OTHER CAUSES—BUSINESS RELATED CAUSES Recognition of Right—Business Related Causes/Protection Cases Agabon v NLRC, 442 SCRA 573 (2004) Justice in every case should only be for the deserving party. It should not be presumed that every case of illegal dismissal would automatically be decided in favor of labor, as management has rights that should be fully respected and enforced by this Court. As interdependent and indispensable partners in nation-building, labor and management need each other to foster productivity and economic growth; hence, the need to weigh and balance the rights and welfare of both the employee and employer. Uichico v NLRC, 273 SCRA 35 (1997) The law recognizes the right of every business entity to reduce its work force if the same is made necessary by compelling economic factors which would endanger its existence or stability. In spite of overwhelming support granted by the social justice provisions of our Constitution in favor of labor, the fundamental law itself guarantees, even during the process of tilting the scales of social justice towards workers and employees, "the right of enterprises to reasonable returns of investment and to expansion and growth. To hold otherwise would not only be oppressive and inhuman, but also counter-productive and ultimately subversive of the nation's thrust towards a resurgence in our economy which would ultimately benefit the majority of our people. Where appropriate and where conditions are in accord with law and jurisprudence, the Court has authorized valid reductions in the work force to forestall business losses, the hemorrhaging of capital, or even to recognize an obvious reduction in the volume of business which has rendered certain employees redundant. Filipinas etc v Gatlabayan, 487 SCRA 673 (2006) To impart operational meaning to the constitutional policy of providing "full protection" to labor, the employer’s prerogative to bring down labor costs by retrenching must be exercised essentially as a measure of last resort, after
NIKKI HIPOLITO
NOTES
less drastic means – e.g., reduction of both management and rank-and-file bonuses and salaries, going on reduced time, improving manufacturing efficiencies, trimming of marketing and advertising costs, etc. – have been tried and found wanting. Business Services of the Future Today, Inc v CA, 480 SCRA 571 (2006) Notice of closure to the DOLE is mandatory. It allows the DOLE to ascertain whether the closure and/or dismissals were done in good faith and not a pretext for evading obligations to the employees. This requirement protects the workers’ right to security of tenure. Failure to comply with this requirement taints the dismissal. This rule, however, admits of exceptions. If the employee consented to his retrenchment due to the closure or cessation of operation, the required prior notice to the DOLE is not necessary as the employee thereby acknowledges the existence of a valid cause for termination of his employment. A. Installation of Labor Saving Devices ART. 283: Closure of establishment and reduction of personnel. – The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year. B. Redundancy ART. 283: see supra Business Judgment Cases Wiltshire File Co. v NLRC, 193 SCRA 665 (1991) The determination of the continuing necessity of a particular officer or position in a business corporation is management's prerogative, and the courts will not interfere with the exercise of such so long as no abuse of
167
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
discretion or merely arbitrary management is shown.
or
malicious
NOTES
action
on
the
part
of
Asufrin v San Miguel Corp, 425 SCRA 270 (2004) The determination that employee’s services are no longer necessary or sustainable and, therefore, properly terminable is an exercise of business judgment of the employer. The wisdom or soundness of this judgment is not subject to discretionary review of the Labor Arbiter and the NLRC, provided there is no violation of law and no showing that it was prompted by an arbitrary or malicious act. In other words, it is not enough for a company to merely declare that it has become overmanned. It must produce adequate proof that such is the actual situation to justify the dismissal of the affected employees for redundancy. Soriano Jr v NLRC, 521 SCRA 526 (2007) It is clear that the foregoing documentary evidence constituted substantial evidence to support the findings of Labor Arbiter Lustria and the NLRC that petitioner’s employment was terminated by respondent PLDT due to a valid or legal redundancy program since substantial evidence merely refers to that amount of evidence which a reasonable mind might accept as adequate to support a conclusion. Financial Loss (1) The losses incurred are substantial and not de minimis; (2) The losses are actual or reasonably imminent; (3) The retrenchment is reasonably necessary and is likely to be effective in preventing the expected losses; and (4) The alleged losses, if already incurred, or the expected imminent losses sought to be forestalled are proven by sufficient and convincing evidence. Cases Escareal v NLRC, 213 SCRA 472 (1992) While concededly, Article 283 of the Labor Code does not require that the employer should be suffering financial losses before he can terminate the services of the employee on the ground of redundancy, it does not mean either that a company which is doing well can effect such a dismissal whimsically or capriciously. The fact that a company is suffering from business losses merely provides stronger justification for the termination. Law Required Position Cases Escareal v NLRC, 213 SCRA 472 (1992) A position is redundant when it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as the overhiring of workers, a decreased volume of business or the dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. NIKKI HIPOLITO
When Redundancy Cases Soriano Jr v NLRC, 521 SCRA 526 (2007) Redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. A position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors such as over-hiring of workers, decrease in volume of business, or dropping a particular product line or service activity previously manufactured or undertaken by the enterprise. Lopez Sugar Corp v Franco, 458 SCRA 515 (2005) Redundancy exists when the service capability of the work force is in excess of what is reasonably needed to meet the demands on the enterprise. A redundant position is one rendered superfluous by any number of factors, such as over-hiring of workers, decreased volume of business, dropping of a particular product line previously manufactured by the company or phasing out of a service activity priorly undertaken by the business. Under these conditions, the employer has no legal obligation to keep in its payroll more employees than are necessary for the operation of its business. Wiltshire File Co. v NLRC, 193 SCRA 665 (1991) We believe that redundancy, for purposes of our Labor Code, exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Succinctly put, a position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as overhiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. The employer has no legal obligation to keep in its payroll more employees than are necessarily for the operation of its business. Tierra International Construction Corp v NLRC, 211 SCRA 73 (1992) Redundancy exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. A position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as overhiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. Escareal v NLRC, 213 SCRA 472 (1992) Redundancy in an employer’s personnel force, however, does not necessarily or even ordinarily refer to duplication of work. That no other person was holding the same position which the dismissed employee held prior to the termination of his services does not show that his position had not become redundant.
168
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Edge Apparel Inc v NLRC, 286 SCRA 302 (1998) Redundancy exists where the services of an employee are in excess of what would reasonably be demanded by the actual requirements of the enterprise. A position is redundant when it is superfluous, and superfluity of a position or positions could be the result of a number of factors, such as the overhiring of workers, a decrease in the volume of business or the dropping of a particular line or service previously manufactured or undertaken by the enterprise. An employer has no legal obligation to keep on the payroll employees more than the number needed for the operation of the business. Criteria—Selection of Employee Cases Panlilio v NLRC, 281 SCRA 53 (1997) We have held that it is important for a company to have fair and reasonable criteria in implementing its redundancy program, such as but not limited to, (a) preferred status, (b) efficiency and (c) seniority. Golden Thread Knitting Industries Inc v NLRC, 304 SCRA 568 (1999) In selecting the employees to be dismissed, a fair and reasonable criteria must be used, such as but not limited to: (a) less preferred status (e.g., temporary employee), (b) efficiency, and (c) seniority. Tanjuan v Phil. Postal Savings Bank, 411 SCRA 168 (2003) Before any reduction of personnel becomes legal, any claim of actual or potential business losses must satisfy established standards as follows: (1) the losses incurred are substantial and not de minimis; (2) the losses are actual or reasonably imminent; (3) the retrenchment is reasonably necessary and is likely to be effective in preventing the expected losses; and (4) the alleged losses, if already incurred, or the expected imminent losses sought to be forestalled are proven by sufficient and convincing evidence. Lopez Sugar Corp v Franco, 458 SCRA 515 (2005) Complainants are not in a position to anticipate how respondent will present its case for redundancy particular[ly] because no standard, criteria or guidelines for the selection of dismissed employees was made known to them, and all that they were told was that "you were selected as among those who will be separated from the service;" nonetheless, this early, it is possible to point out certain facts which throw light on the plausibility or want of it, of the ground relied upon. The absence of criteria, guidelines, or standard for selection of dismissed employees renders the dismissals whimsical, capricious and vindictive.
NIKKI HIPOLITO
NOTES
Employment of Independent Contractor—Effect Cases Asian Alcohol Corp v NLRC, 305 SCRA 416 (1999) n any event, we have held that an employer’s good faith in implementing a redundancy program is not necessarily destroyed by availment of the services of an independent contractor to replace the services of the terminated employees. We have previously ruled that the reduction of the number of workers in a company made necessary by the introduction of the services of an independent contractor is justified when the latter is undertaken in order to effectuate more economic and efficient methods of production. Procedure—Requirement Cases Asian Alcohol Corp v NLRC, 305 SCRA 416 (1999) The requirements for valid retrenchment which must be proved by clear and convincing evidence are: (1) That the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (3) That the employer pays the retrenched employees separation pay equivalent to one month pay or at least ½ month pay for every year of service, whichever is higher; (4) That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and (5) That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status (i.e., whether they are temporary, casual, regular or managerial employees), efficiency, seniority, physical fitness, age, and financial hardship for certain workers. Hearing Cases Wiltshire File Co. v NLRC, 193 SCRA 665 (1991) Where, as in the instant case, the ground for dismissal or termination of services does not relate to a blameworthy act or omission on the part of the employee, there appears to us no need for an investigation and hearing to be conducted by the employer who does not, to begin with, allege any malfeasance or non-feasance on the part of the employee. In such case, there are no allegations which the employee should refute and defend himself from. Thus, to require petitioner Wiltshire to hold a hearing, at
169
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
which private respondent would have had the right to be present, on the business and financial circumstances compelling retrenchment and resulting in redundancy, would be to impose upon the employer an unnecessary and inutile hearing as a condition for legality of termination. Venue of Complaint Cases Wiltshire File Co. v NLRC, 193 SCRA 665 (1991) This is not to say that the employee may not contest the reality or good faith character of the retrenchment or redundancy asserted as grounds for termination of services. The appropriate forum for such controversion would, however, be the Department of Labor and Employment and not an investigation or hearing to be held by the employer itself. It is precisely for this reason that an employer seeking to terminate services of an employee or employees because of "closure of establishment and reduction of personnel", is legally required to give a written notice not only to the employee but also to the Department of Labor and Employment at least one month before effectivity date of the termination.
NOTES
actual locking-up of the doors of establishment, usually due to financial losses. Closure of business as an authorized cause for termination of employment aims to prevent further financial drain upon an employer who cannot pay anymore his employees since business has already stopped. On the other hand, retrenchment is reduction of personnel usually due to poor financial returns so as to cut down on costs of operations in terms of salaries and wages to prevent bankruptcy of the company. It is sometimes also referred to as down-sizing. Retrenchment is an authorized cause for termination of employment which the law accords an employer who is not making good in its operations in order to cut back on expenses for salaries and wages by laying off some employees. The purpose of retrenchment is to save a financially ailing business establishment from eventually collapsing. Alabang Country Club v NLRC, 466 SCRA 329 (2005) Retrenchment is the reduction of personnel for the purpose of cutting down on costs of operations in terms of salaries and wages resorted to by an employer because of losses in operation of a business occasioned by lack of work and considerable reduction in the volume of business.
C. Retrenchment to Prevent Losses Defined Cases FF Marine Corp v NLRC, 455 SCRA 154 (2005) Retrenchment is the termination of employment initiated by the employer through no fault of the employees and without prejudice to the latter, resorted to by management during periods of business recession, industrial depression, or seasonal fluctuations or during lulls occasioned by lack of orders, shortage of materials, conversion of the plant for a new production program or the introduction of new methods or more efficient machinery, or of automation. Retrenchment is a valid management prerogative. It is, however, subject to faithful compliance with the substantive and procedural requirements laid down by law and jurisprudence. Distinction—Redundancy and Retrenchment Cases J.A.T. General Services v NLRC, 421 SCRA 78 (2004) While the Court of Appeals defined the issue to be the validity of dismissal due to alleged closure of business, it cited jurisprudence relating to retrenchment to support its resolution and conclusion. While the two are often used interchangeably and are interrelated, they are actually two separate and independent authorized causes for termination of employment. Termination of an employment may be predicated on one without need of resorting to the other. Closure of business, on one hand, is the reversal of fortune of the employer whereby there is a complete cessation of business operations and/or an
NIKKI HIPOLITO
Closure of a business or undertaking due to business losses is the reversal of fortune of the employer whereby there is a complete cessation of business operations to prevent further financial drain upon an employer who cannot pay anymore his employees since business has already stopped. One of the prerogatives of management is the decision to close the entire establishment or to close or abolish a department or section thereof for economic reasons, such as to minimize expenses and reduce capitalization. Coverage Cases Phil. Tuberculosis Society v NLRC, 294 SCRA 567 (1998) Article 278 of the Labor Code states that the fiscal measures recognized therein which an employer may validly adopt apply to "all establishments or undertakings, whether for profit or not." Balbalec v NLRC, 251 SCRA 399 (1995) The above-quoted article not only contemplates the termination of employment of workers or employees to minimize established business losses but also to prevent impending losses, for the law's phraseology explicitly uses the phrase "retrenchment to prevent losses." However, retrenchment strikes at the very core of an individual's employment and the burden clearly falls upon the employer to prove economic or business losses with appropriate supporting evidence. After all, not every asserted potential loss is sufficient legal warrant for a reduction of personnel and the evidence adduced in support of a claim of actual or potential business losses should satisfy certain established standards, to wit:
170
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
1. 2. 3. 4.
The losses expected and sought to be avoided must be substantial and not merely de minimis; The apprehended substantial losses must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer; The retrenchment should reasonably necessary and likely to prevent effectively the expected losses; The losses, both the past and forthcoming, must be proven by sufficient and convincing evidence.
Procedure Cases Mayon Hotel & Restaurant v Adana, 458 SCRA 609 (2005) Article 221 of the Labor Code is clear: technical rules are not binding, and the application of technical rules of procedure may be relaxed in labor cases to serve the demand of substantial justice. The rule of evidence prevailing in court of law or equity shall not be controlling in labor cases and it is the spirit and intention of the Labor Code that the Labor Arbiter shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process. Labor laws mandate the speedy administration of justice, with least attention to technicalities but without sacrificing the fundamental requisites of due process. Temporary Retrenchment Cases Sebugero v NLRC, 248 SCRA 532 (1995) This provision (Art. 283), however, speaks of a permanent retrenchment as opposed to a temporary lay-off as is the case here. There is no specific provision of law which treats of a temporary retrenchment or lay-off and provides for the requisites in effecting it or a period or duration therefor. These employees cannot forever be temporarily laid-off. To remedy this situation or fill the hiatus, Article 286 may be applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in floating status. 13 Six months is the period set by law that the operation of a business or undertaking may be suspended thereby suspending the employment of the employees concerned. The temporary lay-off wherein the employees likewise cease to work should also not last longer than six months. After six months, the employees should either be recalled to work or permanently retrenched following the requirements of the law, and that failing to comply with this would be tantamount to dismissing the employees and the employer would thus be liable for such dismissal. Requirements—Standards (1) Necessity of the retrenchment to prevent losses, and proof of such losses;
NOTES
(2) Written notice to the employees and to the Department of Labor and Employment (DOLE) at least one month prior to the intended date of retrenchment; and (3) Payment of separation pay equivalent to one-month pay or at least one-half month pay for every year of service, whichever is higher. Cases Lopez Sugar Corp v Federation of Free Workers, 189 SCRA 179 (1990) We consider it may be useful to sketch the general standards in terms of which the acts of petitioner employer must be appraised. Firstly, the losses expected should be substantial and not merely de minimis in extent. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bona fide nature of the retrenchment would appear to be seriously in question. Secondly, the substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. There should, in other words, be a certain degree of urgency for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the employees retired or otherwise laidoff. Because of the consequential nature of retrenchment, it must, thirdly, be reasonably necessary and likely to effectively prevent the expected losses. The employer should have taken other measures prior or parallel to retrenchment to forestall losses, i.e., cut other costs than labor costs. An employer who, for instance, lays off substantial numbers of workers while continuing to dispense fat executive bonuses and perquisites or so-called "golden parachutes", can scarcely claim to be retrenching in good faith to avoid losses. To impart operational meaning to the constitutional policy of providing "full protection" to labor, the employer's prerogative to bring down labor costs by retrenching must be exercised essentially as a measure of last resort, after less drastic means — e.g., reduction of both management and rank-and-file bonuses and salaries, going on reduced time, improving manufacturing efficiencies, trimming of marketing and advertising costs, etc. — have been tried and found wanting. Lastly, but certainly not the least important, alleged if already realized, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence. EMCO Plywood Corp v Abelgas, 427 SCRA 496 (2004) Retrenchment is a management prerogative consistently recognized and affirmed by this Court. It is, however, subject to faithful compliance with the substantive and the procedural requirements laid down by law and jurisprudence. It must be exercised essentially as a measure of last resort, after less drastic means have been tried and found wanting. For a valid termination due to retrenchment, the law requires that written
NIKKI HIPOLITO
171
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
notices of the intended retrenchment be served by the employer on the worker and on the Department of Labor and Employment at least one (1) month before the actual date of the retrenchment. The purpose of this requirement is to give employees some time to prepare for the eventual loss of their jobs, as well as to give DOLE the opportunity to ascertain the verity of the alleged cause of termination. Blucor Minerals Corp v Amarilla, 458 SCRA 37 (2005) Retrenchment is one of the authorized causes for dismissing employees under Article 283 of the Labor Code. The 'loss' referred to in this provision, however, cannot be of just any kind or amount; otherwise, a company could easily feign excuses to suit its whims and prejudices or to rid itself of unwanted employees. Before any reduction of personnel becomes legal, any claim of actual or potential business losses must satisfy the following established standards: (1) the losses incurred are substantial, not de minimis; (2) the losses are actual or reasonably imminent; (3) the retrenchment can be fairly regarded as necessary and likely to be effective in preventing the expected losses; and (4) sufficient and convincing evidence prove the alleged losses, if already incurred, or the expected imminent losses sought to be forestalled are proven. San Miguel Corp v Aballa, 461 SCRA 392 (2005) For retrenchment to be considered valid the following substantial requirements must be met: (a) the losses expected should be substantial and not merely de minimis in extent; (b) the substantial losses apprehended must be reasonably imminent such as can be perceived objectively and in good faith by the employer; (c) the retrenchment must be reasonably necessary and likely to effectively prevent the expected losses; and (d) the alleged losses, if already incurred, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence. Phil. Carpet etc v Sto. Tomas, 483 SCRA 128 (2006) The prerogative of an employer to retrench its employees must be exercised only as a last resort, considering that it will lead to the loss of the employees’ livelihood. It is justified only when all other less drastic means have been tried and found insufficient or inadequate. Moreover, the employer must prove the requirements for a valid retrenchment by clear and convincing evidence; otherwise, said ground for termination would be susceptible to abuse by scheming employers who might be merely feigning losses or reverses in their business ventures in order to ease out employees. The requirements are: 1. That the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only
NIKKI HIPOLITO
NOTES
2. 3. 4. 5.
expected, are reasonably imminent as perceived objectively and in good faith by the employer; That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; That the employer pays the retrenched employees separation pay equivalent to one month pay or at least ½ month pay for every year of service, whichever is higher; That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status (i.e., whether they are temporary, casual, regular or managerial employees), efficiency, seniority, physical fitness, age, and financial hardship for certain workers.
Nature of Loss (1) The losses incurred are substantial, not de minimis; (2) The losses are actual or reasonably imminent; (3) The retrenchment can be fairly regarded as necessary and likely to be effective in preventing the expected losses; and (4) Sufficient and convincing evidence prove the alleged losses, if already incurred, or the expected imminent losses sought to be forestalled. Cases Lopez Sugar Corp v Federation of Free Workers, 189 SCRA 179 (1990) Firstly, the losses expected should be substantial and not merely de minimis in extent. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bona fide nature of the retrenchment would appear to be seriously in question. Secondly, the substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. There should, in other words, be a certain degree of urgency for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the employees retired or otherwise laid-off. Because of the consequential nature of retrenchment, it must, thirdly, be reasonably necessary and likely to effectively prevent the expected losses. The employer should have taken other measures prior or parallel to retrenchment to forestall losses, i.e., cut other costs than labor costs. An employer who, for instance, lays off substantial numbers of workers while
172
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
continuing to dispense fat executive bonuses and perquisites or so-called "golden parachutes", can scarcely claim to be retrenching in good faith to avoid losses. To impart operational meaning to the constitutional policy of providing "full protection" to labor, the employer's prerogative to bring down labor costs by retrenching must be exercised essentially as a measure of last resort, after less drastic means — e.g., reduction of both management and rank-and-file bonuses and salaries, going on reduced time, improving manufacturing efficiencies, trimming of marketing and advertising costs, etc. — have been tried and found wanting.
NOTES
find that the Court of Appeals did not err when it decreed that petitioners herein are not entitled to separation pay under Article 283 of the Labor Code.
Lastly, but certainly not the least important, alleged if already realized, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence.
Phil. Carpet etc v Sto. Tomas, 483 SCRA 128 (2006) "To prevent losses" means that retrenchment or termination of the services of some employees is authorized to be undertaken by the employer sometime before the losses anticipated are actually sustained or realized. It is not, in other words, the intention of the lawmaker to compel the employer to stay his hand and keep all his employees until sometime after losses shall have, in fact, materialized; if such an intent were expressly written into the law, that law may well be vulnerable to constitutional attack as taking property from one man to give to another.
Edge Apparel v NLRC, 286 SCRA 302 (1998) The general standards or elements needed for the retrenchment to be valid — i.e., that the losses expected are substantial and not merely de minimis in extent; that the expected losses are reasonably imminent such as can be perceived objectively and in good faith by the employer; that the retrenchment is reasonably necessary and likely to effectively prevent the expected losses; and that the imminent losses sought to be forestalled are substantiated — were adequately shown in the present case.
Sliding Income Cases San Miguel Jeepney Service v NLRC, 265 SCRA 35 (1996) As petitioners themselves admitted, what they suffered were “sliding incomes”, in other words, decreasing gross revenues. What the law speaks of is serious business losses or financial reverses. Clearly, sliding incomes are not necessarily losses, much less serious business losses within the meaning of the law.
Bogo-Medellin Sugar Cane Planters Assn. v NLRC, 296 SCRA 108 (1998) (1) The losses incurred are substantial and not deminimis: (2) The losses are actual or reasonably imminent; (3) The retrenchment is reasonably necessary and is likely to be effective in preventing the expected imminent losses sought to be forestalled, are proven by sufficient and convincing evidence.
Proof of Loss Cases Lopez Sugar Corp v Federation of Free Workers, 189 SCRA 179 (1990) No audited financial statements showing the financial condition of petitioner corporation during the above mentioned crop years were submitted. Since financial statements audited by independent external auditors constitute the normal method of proof of the profit and loss performance of a company, it is not easy to understand why petitioner should have failed to submit such financial statements.
Cama v Joni’s Food Services, 425 SCRA 259 (2004) The Constitution, while affording full protection to labor, nonetheless, recognizes "the right of enterprises to reasonable returns on investments, and to expansion and growth." In line with this protection afforded to business by the fundamental law, Article 283 of the Labor Code clearly makes a policy distinction. It is only in instances of "retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses" that employees whose employment has been terminated as a result are entitled to separation pay. In other words, Article 283 of the Labor Code does not obligate an employer to pay separation benefits when the closure is due to serious losses.15 To require an employer to be generous when it is no longer in a position to do so, in our view, would be unduly oppressive, unjust, and unfair to the employer. Ours is a system of laws, and the law in protecting the rights of the working man, authorizes neither the oppression nor the self-destruction of the employer. Hence, we NIKKI HIPOLITO
Bogo-Medellin Sugar Cane Planters Assn. v NLRC, 296 SCRA 108 (1998) A comparative statement of revenue and expenses for two years, by itself, is not conclusive proof of serious business losses. The Court has previously ruled that financial statements audited by independent external auditors constitute the normal method of proof of the profit and loss performance of a company. Mitsubishi Motors v Chrysler, 433 SCRA 407 (2004) Business reverses or losses are recognized by law as an authorized cause for termination of employment. Still, it is an essential requirement that alleged losses in business operations must be proven convincingly. Otherwise, such ground for termination would be susceptible to abuse by
173
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
scheming employers, who might be merely feigning business losses or reverses in their business ventures to ease out employees.40 Retrenchment is an authorized cause for termination of employment which the law accords an employer who is not making good in its operations in order to cut back on expenses for salaries and wages by laying off some employees. The purpose of retrenchment is to save a financially ailing business establishment from eventually collapsing. Danzas Intercontinental v Daguman, 456 SCRA 382 (2005) The condition of business losses justifying retrenchment is normally shown by audited financial documents like yearly balance sheets and profit and loss statements as well as annual income tax returns. Financial statements must be prepared and signed by independent auditors. Otherwise, they may be assailed as self-serving. Since the losses incurred must be substantial and actual or reasonably imminent, it is necessary that the employer show that the losses increased through a period of time and that the condition of the company is not likely to improve in the near future. Composite Enterprises v Caparoso, 529 SCRA 470 (2007) It is not enough for a company to merely declare that it has implemented a retrenchment program. It must produce adequate proof that such is the actual situation to justify the retrenchment of employees. Normally, the condition of business losses is shown by audited financial documents like yearly balance sheets, profit and loss statements and annual income tax returns. The financial statements must be prepared and signed by independent auditors, failing which these can be assailed as self-serving documents. Raycor Aircontrol Systems v San Pedro, 526 SCRA 429 (2007) The best evidence of reversal of fortune is audited financial and income statements which detail the extent and pattern of business losses suffered by the employer. Burden of Proof Cases Sy v CA, 398 SCRA 301 (2003) In termination cases, the burden is upon the employer to show by substantial evidence that the termination was for lawful cause and validly made. Article 277(b) of the Labor Code puts the burden of proving that the dismissal of an employee was for a valid or authorized cause on the employer, without distinction whether the employer admits or does not admit the dismissal. For an employee’s dismissal to be valid, (a) the dismissal must be for a valid cause and (b) the employee must be afforded due process.
NIKKI HIPOLITO
NOTES
National Book Store v CA, 378 SCRA 194 (2002) Petitioner National Bookstore, as correctly pointed out by the Labor Arbiter in his decision, more than substantially observed this requirement. On 30 July 1992 it gave private respondents an opportunity to explain why they should not be dismissed for the loss of company funds, which private respondents immediately complied with by submitting their joint answer on 31 July 1992. Moreover, on 29 August 1992 petitioner National Bookstore sent another written notice to private respondents informing them of its decision to terminate their services setting forth the reasons therefor. But the burden imposed on petitioner National Bookstore does not stop here. It must also show with convincing evidence that the dismissal was based on any of the just or authorized causes provided by law for termination of employment by an employer. When Effected Cases Lopez Sugar Corp v Federation of Free Workers, 189 SCRA 179 (1990) To impart operational meaning to the constitutional policy of providing "full protection" to labor, the employer's prerogative to bring down labor costs by retrenching must be exercised essentially as a measure of last resort, after less drastic means — e.g., reduction of both management and rank-and-file bonuses and salaries, going on reduced time, improving manufacturing efficiencies, trimming of marketing and advertising costs, etc. Cajucom VII v IPI Phils. Cement Corp, 451 SCRA 70 (2005) For his part, petitioner insists that actual, not probable losses, justify retrenchment. Article 283 (quoted earlier) entails, among others, only a situation where there is “retrenchment to prevent losses.”[14] The phrase “to prevent losses” means that retrenchment or termination from the service of some employees is authorized to be undertaken by the employer sometime before the losses anticipated are actually sustained or realized.[15] This is the situation in the case at bar. Evidently, actual losses need not set in prior to retrenchment. Procedure (Retrenchment and Redundancy) Cases Sebugero v NLRC, 248 SCRA 532 (1995) What the law requires is a written notice to the employees concerned and that requirement is mandatory. The notice must also be given at least one month in advance of the intended date of retrenchment to enable the employees to look for other means of employment and therefore to ease the impact of the loss of their jobs and the corresponding income. That they were already on temporary lay-off at the time notice should have been given to them is not an excuse to forego the one-month written notice because by this time, their lay-off is to become permanent and they were definitely losing their employment.
174
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
EMCO Plywood Corp v Abelgas, 427 SCRA 498 (2004) For a valid termination due to retrenchment, the law requires that written notices of the intended retrenchment be served by the employer on the worker and on the Department of Labor and Employment at least one (1) month before the actual date of the retrenchment. The purpose of this requirement is to give employees some time to prepare for the eventual loss of their jobs, as well as to give DOLE the opportunity to ascertain the verity of the alleged cause of termination.
NOTES
cessation or suspension of its business. The best evidence of reversal of fortune is audited financial and income statements which detail the extent and pattern of business losses suffered by the employer. Petitioner did not present any such document where it could have demonstrated how the 1997 Asian financial currency crisis or the rehabilitation of Uniwide adversely and significantly affected the viability of its business.
Re-Hiring Effect Cases Atlantic Gulf and Pacific Co of Manila v NLRC, 307 SCRA 714 (1999) While it is true that the company rehired or re-employed some of the dismissed workers, it has been shown that such action was made only as company projects became available and that it was done in pursuance of the company's policy of giving preference to its former workers in the rehiring of project employees. The rehiring or re-employment does not negate the imminence of losses, which prompted private respondents to retrench.
Right Cases Espina v CA, 519 SCRA 327 (2007) And the phrase "closure or cessation not due to serious business losses or financial reverses" recognizes the right of the employer to close or cease its business operations or undertaking even in the absence of serious business losses or financial reverses, as long as he pays his employees their termination pay in the amount corresponding to their length of service. It would indeed be stretching the intent and spirit of the law if a court were to unjustly interfere in management’s prerogative to close or cease its business operations just because said business operation or undertaking is not suffering from any loss. The determination to cease operations is a prerogative of management which the State does not usually interfere with, as no business or undertaking must be required to continue operating simply because it has to maintain its workers in employment, and such act would be tantamount to a taking of property without due process of law. As long as the company’s exercise of the same is in good faith to advance its interest and not for the purpose of circumventing the rights of employees under the law or a valid agreement, such exercise will be upheld.
Liability Cases Capitol Medical Center v Meris, 470 SCRA 236 (2005) Reinstatement, however, is not feasible in case of a strained employeremployee relationship or when the work or position formerly held by the dismissed employee no longer exists, as in the instant case. Dr. Meris is thus entitled to payment of separation pay at the rate of one (1) month salary for every year of his employment, with a fraction of at least six (6) months being considered as one(1) year, and full backwages from the time of his dismissal from April 30, 1992 until the expiration of his term as Chief of ISU or his mandatory retirement, whichever comes first.
MacAdams Metal Engineering Union v MacAdams Metal Engineering, 414 SCRA 411 (2003) Explicit from the above provision is that closure or cessation of business operations is allowed even if the business is not undergoing economic losses. The owner, for any bona fide reason, can lawfully close shop at anytime. Just as no law forces anyone to go into business, no law can compel anybody to continue in it. It would indeed be stretching the intent and spirit of the law if we were to unjustly interfere with the management’s prerogative to close or cease its business operations just because said business operation or undertaking is not suffering from any loss or simply to provide the workers continued employment.
D. Closing of Business ART. 283: see supra
Catatista v NLRC, 247 SCRA 46 (1995) In any case, Article 283 of the Labor Code is clear that an employer may close or cease his business operations or undertaking even if he is not suffering from serious business losses or financial reverses, as long as he pays his employees their termination pay in the amount corresponding to their length of service. It would, indeed, be stretching the intent and spirit of the law if we were to unjustly interfere in management's prerogative to
Industrial Timber Corp v Ababon, 480 SCRA 171 (2006) Three requirements are necessary for a valid cessation of business operations: (a) service of a written notice to the employees and to the DOLE at least one month before the intended date thereof; (b) the cessation of business must be bona fide in character; and (c) payment to the employees of termination pay amounting to one month pay or at least one-half month pay for every year of service, whichever is higher.
Cases Raycor Aircontrol Systems v San Pedro, 526 SCRA 429 (2007) Worse, there is no evidence at all that petitioner dismissed respondent because it actually ceased or suspended business operations, or it resorted to the dismissal of respondent and other employees to stave off NIKKI HIPOLITO
175
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
close or cease its business operations just because said business operation or undertaking is not suffering from any loss.
circumventing the provisions on termination of employment embodied in the Labor Code.
Galaxie Steel Workers Union v NLRC, 504 SCRA 692 (2006) The Constitution, while affording full protection to labor, nonetheless, recognizes "the right of enterprises to reasonable returns on investments, and to expansion and growth." In line with this protection afforded to business by the fundamental law, Article 283 of the Labor Code clearly makes a policy distinction. It is only in instances of "retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses" that employees whose employment has been terminated as a result are entitled to separation pay. In other words, Article 283 of the Labor Code does not obligate an employer to pay separation benefits when the closure is due to serious losses. To require an employer to be generous when it is no longer in a position to do so, in our view, would be unduly oppressive, unjust, and unfair to the employer. Ours is a system of laws, and the law in protecting the rights of the working man, authorizes neither the oppression nor the self-destruction of the employer.
Extent/Degree of Partial Closure Cases J.A.T. General Services v NLRC, 421 SCRA 78 (2004) The closure of business operation by petitioners, in our view, is not tainted with bad faith or other circumstance that arouses undue suspicion of malicious intent. The decision to permanently close business operations was arrived at after a suspension of operation for several months precipitated by a slowdown in sales without any prospects of improving. There were no indications that an impending strike or any labor-related union activities precipitated the sudden closure of business. Further, contrary to the findings of the Labor Arbiter, petitioners had notified private respondent and all other workers through written letters dated November 25, 1998 of its decision to permanently close its business and had submitted a termination report to the DOLE. Generally, review of labor cases elevated to this Court on a petition for review on certiorari is confined merely to questions of law. But in certain cases, we are constrained to analyze or weigh the evidence again if the findings of fact of the labor tribunals and the appellate court are in conflict, or not supported by evidence on record or the judgment is based on a misapprehension of facts.
Alabang Country Club v NLRC, 466 SCRA 329 (2005) In fine, management’s exercise of its prerogative to close a section, branch, department, plant or shop will be upheld as long as it is done in good faith to advance the employer’s interest and not for the purpose of defeating or circumventing the rights of employees under the law or a valid agreement. Capitol Medical Center v Meris v 470 SCRA 236 (2005) Employers are also accorded rights and privileges to assure their selfdetermination and independence and reasonable return of capital. This mass of privileges comprises the so-called management prerogatives. Although they may be broad and unlimited in scope, the State has the right to determine whether an employer’s privilege is exercised in a manner that complies with the legal requirements and does not offend the protected rights of labor. One of the rights accorded an employer is the right to close an establishment or undertaking. The right to close the operation of an establishment or undertaking is explicitly recognized under the Labor Code as one of the authorized causes in terminating employment of workers, the only limitation being that the closure must not be for the purpose of circumventing the provisions on termination of employment embodied in the Labor Code. Industrial Timber Corp. v Ababon, 480 SCRA 171 (2006) The right to close the operation of an establishment or undertaking is one of the authorized causes in terminating employment of workers, the only limitation being that the closure must not be for the purpose of NIKKI HIPOLITO
Cheniver Deco Print Technics Corp v NLRC, 325 SCRA 758 (2000) It must be stressed that the phrase "closure or cessation of operation of an establishment or undertaking not due to serious business losses or reverses" under Article 283 of the Labor Code includes both the complete cessation of all business operations and the cessation of only part of a company's business. There is no doubt that petitioner has legitimate reason to relocate its plant because of the expiration of the lease contract on the premises it occupied. That is its prerogative. But even though the transfer was due to a reason beyond its control, petitioner has to accord its employees some relief in the form of severance pay. As public respondent observed, the subsequent transfer of petitioner to another place hardly accessible to its workers resulted in the latter's untimely separation from the service not to their own liking, hence, not construable as resignation. Resignation must be voluntary and made with the intention of relinquishing the office, accompanied with an act of relinquishment. Indeed, it would have been illogical for private respondents herein to resign and then file a complaint for illegal dismissal. Resignation is inconsistent with the filing of the said complaint. Espina v CA, 519 SCRA 661 (2007) The phrase "closure or cessation of operations of establishment or
176
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
undertaking" includes a partial or total closure or cessation. x x x Ordinarily, the closing of a warehouse facility and the termination of the services of employees there assigned is a matter that is left to the determination of the employer in the good faith exercise of its management prerogatives. The applicable law in such a case is Article 283 of the Labor Code which permits "closure or cessation of operation of an establishment or undertaking not due to serious business losses or financial reverses," which, in our reading includes both the complete cessation of operations and the cessation of only part of a company’s business. Requisite Cases Me-Shurn Corp v Me-Shurn Workers Union, 448 SCRA 41 (2005) To justify the closure of a business and the termination of the services of the concerned employees, the law requires the employer to prove that it suffered substantial actual losses. The cessation of a company's operations shortly after the organization of a labor union, as well as the resumption of business barely a month after, gives credence to the employees' claim that the closure was meant to discourage union membership and to interfere in union activities. These acts constitute unfair labor practices. TEMPORARY CESSATION OF OPERATION ART. 286: When Employment Not Deemed Terminated. The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. Basis Cases San Pedro Hospital of Digos v Sec. of Labor, 263 SCRA 98 (1996) Temporary suspension of operations is recognized as a valid exercise of management prerogative provided it is not carried out in order to circumvent the provisions of the Labor Code or to defeat the rights of the employees under the Code. The determination to case or suspend operations is a prerogative of management that the State usually does not interfere with, as no business can be required to continue operating at a loss simply to maintain the workers in employment. Such an act would be tantamount to a taking of property without due process of law, which the employer has a right to resist. But where it is shown that the closure is motivated not by a desire to prevent further losses, but to discourage the workers from organizing themselves into a union for more effective negotiation with management, the State is bound to intervene. NIKKI HIPOLITO
NOTES
J.A.T. General Services v NLRC, 421 SCRA 78 (2004) We need not belabor the issue of notice requirement for a suspension of operation of business under Article 286 of the Labor Code. This matter is not pertinent to, much less determinative of, the disposition of this case. Suffice it to state that there is no termination of employment during the period of suspension, thus the procedural requirement for terminating an employee does not come into play yet. Mayon Hotel & Restaurant v Adona, 458 SCRA 609 (2005) Moreover, even assuming arguendo that the cessation of employment on April 1997 was merely temporary, it became dismissal by operation of law when petitioners failed to reinstate respondents after the lapse of six (6) months, pursuant to Article 286 of the Labor Code. Me-Shurn Corp v Me-Shurn Workers Union, 448 SCRA 41 (2005) Basic is the rule in termination cases that the employer bears the burden of showing that the dismissal was for a just or authorized cause. Otherwise, the dismissal is deemed unjustified. Apropos this responsibility, petitioner corporation should have presented clear and convincing evidence[24] of imminent economic or business reversals as a form of affirmative defense in the proceedings before the labor arbiter or, under justifiable circumstances, even on appeal with the NLRC. Effect on Employer-Employee Relationship Cases San Pedro Hospital of Digos v Sec. of Labor, 263 SCRA 98 (1996) Art. 286 of the Labor Code provides: "The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months . . . shall not terminate employment." Section 12, Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code provides that the employer-employee relationship shall be deemed suspended in case of the suspension of operation referred to above, it being implicitly assumed that once operations are resumed, the employer-employee relationship is revived and restored. If a legitimate, valid and legal suspension of operation does not terminate but merely suspends the employee-employer relationship, with more reason will an invalid and illegal suspension of operations, as in this case, not affect the employment relationship. E. Installation of Labor Saving Devices Cases Abapo v CA, 439 SCRA 594 (2004) In a similar case (involving the same issue – the validity of the termination of SMC employees at the Mandaue Brewery), this Court, through Mr. Justice Vicente V. Mendoza, now retired, held that the installation of labor-saving devices by SMC at the Mandaue plant was a proper ground for terminating
177
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
employment. The quitclaims and releases, signed by the employees concerned as reasonable settlements, are binding upon the parties. F. Floating Status Cases Pido v NLRC, 516 SCRA 609 (2007) Verily, a floating status requires the dire exigency of the employer's bona fide suspension of operation of a business or undertaking. In security services, this happens when the security agency’s clients which do not renew their contracts are more than those that do and the new ones that the agency gets. Also, in instances when contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it even for want of cause, the replaced security guard may be placed on temporary "off-detail" if there are no available posts under respondent’s existing contracts. When a security guard is placed on a "floating status," he does not receive any salary or financial benefit provided by law. Due to the grim economic consequences to the employee, the employer should bear the burden of proving that there are no posts available to which the employee temporarily out of work can be assigned. This, respondent failed to discharge. DISEASE ART. 284: Disease as ground for termination. - An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. Cases Sy v CA, 398 SCRA 301 (2003) In order to validly terminate employment on this ground, Book VI, Rule I, Section 8 of the Omnibus Implementing Rules of the Labor Code requires: Sec. 8. Disease as a ground for dismissal- Where the employee suffers from a disease and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees, the employer shall not terminate his employment unless there is a certification by competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment. If the disease or ailment can be cured within the period, the employer shall not terminate the employee but shall ask the employee to take a leave. The employer shall reinstate such employee to his former position immediately upon the restoration of his normal health. NIKKI HIPOLITO
NOTES
G. Special Case of Business Transfers—see CLV’s Corp book Nature of Labor Contract Cases Sundowner Development Corp v Drilon, 180 SCRA 14 (1989) The rule is that unless expressly assumed, labor contracts such as employment contracts and collective bargaining agreements are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. A labor contract merely creates an action in personally and does not create any real right which should be respected by third parties. This conclusion draws its force from the right of an employer to select his employees and to decide when to engage them as protected under our Constitution, and the same can only be restricted by law through the exercise of the police power. H. Procedural Due Process—Nature and Requirements ART. 277 (B): Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, Republic Act No. 6715, March 21, 1989).
SEC. 2 (D), Book VI, Rule 1, IRR In all cases of termination of employment, the following standards of due process shall be substantially observed: For termination of employment based on just causes defined in Article 282 of the Labor Code: 1.
A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable
178
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
opportunity within which to explain his side. 2.
3.
A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him. A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
1. Requirements In General Cases Agabon v NLRC, 442 SCRA 573 (2004) BASIS FOR TERMINATION Art. 282—Just Causes
Art. 283 & 284— Authorized Causes
4 Possible Situations 1. Just or Authorized Cause + Due Process 2. NO Just or Authorized Cause + Due Process
3. NO Just or Authorized Cause + NO Due Process
REQUIREMENTS TWIN NOTICE REQUIREMENT 1. Notice specifying the grounds for which dismissal is sought 2. Hearing or opportunity to be heard 3. Notice of the decision to dismiss Notice to— 1. Employees 2. DOLE At least 30 days prior to effectivity of the separation Effect
Termination VALID
Termination INVALID
Termination INVALID
Liability of ER NO Liability Separation Pay if for Authorized Cause Reinstatement + Full Backwages *Reinstatement not possible—Separation Pay Reinstatement + Full Backwages
4. Just or Authorized Cause + NO Due Process
Termination INVALID
Liable for compliane procedural requirements Separation Pay if Authorized Cause
nonwith
for
Essence of Due Process Cases Solid Development Corp. Workers Assn. v Solid Development Corp, 530 SCRA 132 (2007) On the matter of due process, well-settled is the dictum that the twin requirements of notice and hearing constitute the essential elements of due process in the dismissal of employees. It is a cardinal rule in our jurisdiction that the employer must furnish the employee with two written notices before the termination of employment can be effected: (1) the first apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the second informs the employee of the employer’s decision to dismiss him. The requirement of a hearing, on the other hand, is complied with as long as there was an opportunity to be heard, and not necessarily that an actual hearing was conducted. Central Pangasinan Elec. Coop. v Macaraeg, 395 SCRA 720 (2003) Time and again, we have stressed that due process is simply an opportunity to be heard. Valiao v CA, 435 SCRA 543 (2004) The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential, as the due process requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice and hearing. Carag v NLRC, 520 SCRA 28 (2007) The essence of due process is that a party be afforded a reasonable opportunity to be heard and to submit any evidence he may have in support of his defense. Where, as in this case, sufficient opportunity to be heard either through oral arguments or position paper and other pleadings is not accorded a party to a case, there is undoubtedly a denial of due process.
*Reinstatement not possible—Separation Pay NIKKI HIPOLITO
179
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
UCPB v Beluso, 530 SCRA 567 (2007) Indeed, due process mandates that a defendant should be sufficiently apprised of the matters he or she would be defending himself or herself against. Right to Counsel Cases Salaw v NLRC, 202 SCRA 7 (1991) It is true that administrative and quasi-judicial bodies are not bound by the technical rules of procedure in the adjudication cases. However, the right to counsel, a very basic requirement of substantive due process, has to be observed. Indeed, rights to counsel and to due process of law are two of fundamental rights guaranteed by the 1987 Constitution to person under investigation, be the proceeding administrate civil, or criminal. Thus, Section 12(1), Article III thereof specifically provides: "Any person under investigation for the commssion of an offense shall have the right to ... have compete and independent counsel preferably of his own choice. If the person cannot afford the service of counsel, he must be provided with one. These rights cannot be waived except in writing in the presence of counsel." To underscore the inviolability this provision, the third paragraph of the same section explicitly states that, "any confession or admission obtained in violation of this or the preceding section shall be inadmissible evidence against him." Notice Cases Carag v NLRC, 520 SCRA 28 (2007) Neither does bad faith arise automatically just because a corporation fails to comply with the notice requirement of labor laws on company closure or dismissal of employees. The failure to give notice is not an unlawful act because the law does not define such failure as unlawful. Such failure to give notice is a violation of procedural due process but does not amount to an unlawful or criminal act. Such procedural defect is called illegal dismissal because it fails to comply with mandatory procedural requirements, but it is not illegal in the sense that it constitutes an unlawful or criminal act. King of Kings Transport v Mamac, 526 SCRA 116 (2007) To clarify, the following should be considered in terminating the services of employees: (1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.[15] This should be construed as a period of at least five (5) NIKKI HIPOLITO
NOTES
calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees. (2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement. (3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. Colegio de San Juan de Letran-Calamba v Villas, 399 SCRA 551 (2003) The law requires the employer to give the worker to be dismissed two written notices before terminating his employment. Considering that these notices are mandatory, the absence of one renders any management decision to terminate null and void. Agabon v NLRC, 442 SCRA 573 (2004) Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment: a notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under Articles 283 and 284, the employer must give the employee and the Department of Labor and Employment written notices 30 days prior to the effectivity of his separation. Sta. Catalina College v NLRC, 416 SCRA 233 (2003) As regards the requirement of notice of termination, it was error for the CA
180
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
to apply Sec 2, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code. It should be noted that when Hilaria abandoned her teaching position in 1971, the law in force was Republic Act 1052 or the Termination Pay Law, as amended by Republic Act 1787, Section 1 of which provides: SEC. 1. In cases of employment, without a definite period, in a commercial, industrial, or agricultural establishment or enterprise, the employer or the employee may terminate at any time the employment with just cause; or without just cause in the case of an employee by serving written notice on the employer at least one month in advance, or in the case of an employer, by serving such notice to the employee at least one month in advance or one-half month for every year of service of the employee, whichever is longer, a fraction of at least six months being considered as one whole year. The employer, upon whom no such notice was served in case of termination of employment without just cause may hold the employee liable for damages. The employee, upon whom no such notice was served in case of termination of employment without just cause shall be entitled to compensation from the date of termination of his employment in an amount equivalent to his salaries or wages corresponding to the required period of notice. Two Notice Rule Cases Agabon v NLRC, 442 SCRA 573 (2004) BASIS FOR TERMINATION Art. 282—Just Causes
Art. 283 & 284— Authorized Causes
REQUIREMENTS TWIN NOTICE REQUIREMENT 4. Notice specifying the grounds for which dismissal is sought 5. Hearing or opportunity to be heard 6. Notice of the decision to dismiss Notice to— 3. Employees 4. DOLE At least 30 days prior to effectivity of the separation
Caingat v NLRC, 453 SCRA 142 (2005) The due process prescribed in Article 277 of the Labor Code, as amended, and in Sections 2 and 7, Rule I, Book VI of the Implementing Rules of the Labor Code, are mandatory. Two notices should be sent to the employee. NIKKI HIPOLITO
NOTES
The first notice apprises the employee of the particular acts or omissions for which his dismissal is sought; while the second informs the employee of the employer’s decision to dismiss him. The latter must come after the employee is given a reasonable period from receipt of the first notice within which to answer the charge, and ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires. Heavylift Manila Inc v CA, 473 SCRA 541 (2005) The law requires the employer to give the worker to be dismissed two written notices before terminating his employment, namely, (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employer’s decision to dismiss him. Genuino Ice Co v Magpantay, 493 SCRA 233 (2006) Simply stated, the employer must furnish the employee a written notice containing a statement of the cause for termination and to afford said employee ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires, and the employee must be notified in writing of the decision dismissing him, stating clearly the reasons therefor. Hearing Cases PLDT v Bolso, 530 SCRA 550 (2007) The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all circumstances essential. Magos v NLRC, 300 SCRA 484 (1998) Although a hearing is essential to due process, in Bernardo v. NLRC we did hold that no formal hearing was necessary when the petitioner had already admitted his responsibility for the act he was accused of. Caurdanetaan Piece Workers Union v Laguesma, 285 SCRA 291 (1998) Private respondent had been duly informed of the pendency of the illegal dismissal case, but it chose not to participate therein without any known justifiable cause. The labor arbiter sent notices of hearing or arbitration to the parties, requiring them to submit position papers at 1:30 p.m. on November 14, 1992. Respondent Corfarm did not attend the hearing. According to Respondent NLRC, there was no proof that Respondent Corfarm received such notice. In any case, petitioner filed a Motion to Admit Amended Complaint on December 23, 1992. Again, another notice for hearing or arbitration on January 7, 1993 was sent to the parties. This
181
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
was received by petitioner’s counsel as evidenced by the registry return receipt duly signed by private respondent’s counsel, Atty. Alfonso Bince, Jr. It was only on January 28, 1993, however, that Atty. Bince entered his appearance as counsel for Respondent Corfarm. On May 10, 1993, Corfarm was again given a new period of ten (10) days within which to submit its position paper and documentary evidence; “otherwise, [the labor arbiter] will be constrained to resolve this case based on available evidence on record.” As evidenced by a registry return receipt, a copy of said directive was received by respondent’s counsel on May 25, 1993. Still and all, Corfarm failed to file its position paper. Clearly, private respondent was given an opportunity to present its evidence, but it failed or refused to avail itself of this opportunity without any legal reason. Due process is not violated where a person is given the opportunity to be heard, but chooses not to give his side of the case. National Semi-Conductor (HK) v NLRC, 291 SCRA 348 (1998) That the investigations conducted by petitioner may not be considered formal or recorded hearings or investigations is immaterial. A formal or trial type hearing is not at all times and in all instances essential to due process, the requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. It is deemed sufficient for the employer to follow the natural sequence of notice, hearing and judgment. La Carlota Planters Assn. v NLRC, 298 SCRA 252 (1998) The law requires the employer to afford his employee ample opportunity to be heard. Lavador v “J” Marketing Corp, 461 SCRA 497 (2005) In this case, the dismissal of petitioner from the service is due to dishonesty or a just cause. But due process was not observed as no hearing was conducted despite her request. Thus, respondents should be held liable for violation of her right to due process and should pay her indemnity in the form of nominal damages, pursuant to our ruling in Agabon, which we fix at P20,000.00. Position Paper Cases Shoppes Manila v NLRC, 419 SCRA 354 (2004) The holding of a formal hearing or trial is discretionary with the labor arbiter and is something that the parties cannot demand as a matter of right. It is entirely within his authority to decide a labor case before him, based on the position papers and supporting documents of the parties, without a trial or formal hearing. The requirements of due process are satisfied when the parties are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in case it be decided that no hearing should be conducted or was necessary. NIKKI HIPOLITO
NOTES
C.F. Sharp & Co. v Zialcita, 495 SCRA 387 (2006) Trial-type hearings are not required in labor cases and these may be decided on verified position papers, with supporting documents and their affidavits. Cross Examination Cases C.F. Sharp & Co. v Zialcita, 495 SCRA 387 (2006) It is not necessary for the affiants to appear and testify and be crossexamined by the counsel for the adverse party. It is sufficient that the documents submitted by the parties have a bearing on the issue at hand and support the positions taken by them. FAILURE OF DUE PROCESS Cases Sadagnot v Reinier Pacific International Shipping Inc., 529 SCRA 413 (2007) The violation of petitioner’s right to due process only warrants the payment of indemnity in the form of nominal damages, the amount of which is addressed to the sound discretion of the Court, taking into consideration the relevant circumstances. Effect of Failure—Substantive—Procedural Cases Suico v NLRC, 513 SCRA 325 (2007) It should be emphasized, however, that, consistent with our ruling in Agabon, the procedural deficiency in the dismissal of Suico, et al. did not affect the validity or effectivity of the dismissal as the substantive bases thereof were never put in issue. Thus, the April 12, 2002 CA Decision in G.R. No. 163793 was erroneous as it declared the dismissal of Borje illegal merely for failure of PLDT to observe due process. The CA should have affirmed the validity of the dismissal of Borje and awarded him nominal damages for the impairment of his statutory right to due process. Agabon v NLRC, 442 SCRA 573 (2004) 4 Possible Effect Situations 1. Just or Termination VALID Authorized Cause + Due Process 2. NO Just or Authorized Cause + Due Process
Termination INVALID
Liability of ER NO Liability Separation Pay if for Authorized Cause Reinstatement + Full Backwages *Reinstatement not possible—Separation Pay
182
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
3. NO Just or Authorized Cause + NO Due Process
4. Just or Authorized Cause + NO Due Process
Termination INVALID
Termination INVALID
NOTES
Reinstatement Backwages
+
Full
*Reinstatement not possible—Separation Pay Liable for noncompliane with procedural requirements Separation Pay if Authorized Cause
for
Aladdin Transit Corp v CA, 460 SCRA 234 (2005) Since there is no dispute that petitioner did not inform the respondent employee in dismissing him from the service, the whole issue to be resolved is whether the Court of Appeals correctly applied the ruling of this Court in Serrano v. NLRC, to the effect that in cases where there is a valid cause to dismiss the employee but the required notice of dismissal was not given, the dismissal is deemed ineffectual and the employee must be reinstated with full backwages. Recently, this Court has had occasion to revisit the Serrano doctrine and the present rule is set forth in the Agabon v. NLRC, et al., namely, that where the dismissal is based on a just cause, the failure to give the required notice does not invalidate the same, but merely holds the employer liable for damages for violating said notice of requirement. The amount of damages was fixed at Thirty Thousand Pesos (P30,000) by way of nominal damages. Glaxo-Wellcome Phils. Inc v Nagkakaisang Empleyado ng Wellcome, 453 SCRA 256 (2005) Prior to the promulgation of Wenphil v. NLRC in 1989, the prevailing doctrine held that dismissing employees without giving them prior notices and an opportunity to be heard was illegal; and that, as a consequence, they were entitled to reinstatement plus full back wages. Wenphil abandoned this jurisprudence and ruled that if the dismissal was for a just or an authorized cause, but done without due process, the termination was valid; but that, the employer should be sanctioned with the payment of indemnity ranging from P1,000 to P10,000. Serrano v. NLRC, promulgated in 2000, modified Wenphil. It considered such termination “ineffectual” (not illegal) and sanctioned the employer with payment of full back wages plus nominal and moral damages, if warranted by the evidence; and, in case the dismissal was for an authorized cause, separation pay in accordance with Article 283 of the Labor Code.
NIKKI HIPOLITO
Recently in Agabon v. NLRC, this Court effectively reverted to Wenphil and ruled that a dismissal due to abandonment -- a just cause -- was not illegal or ineffectual, even if done without due process; but that the employer should indemnify the employee with “nominal damages for non-compliance with statutory due process.” 2. Other Procedural Matters BURDEN AND DEGREE OF PROOF Burden Cases LBC Domestic Franchise Co. v Florido, 530 SCRA 607 (2007) awIn termination cases, the burden of proof rests upon the employer to show that the dismissal is for a valid and just cause. Failure to do so would necessarily mean that the dismissal was not justified, and, therefore, was illegal. It is sufficient to show by substantial evidence that the employee is guilty of misconduct which makes the latter unworthy of the trust and confidence demanded by his position. C.F. Sharp & Co. v Zialcita, 495 SCRA 387 (2006) It bears stressing that in termination cases, the employer bears the onus of proving that the dismissal was for just cause. Indeed, a condemnation of dishonesty and disloyalty cannot arise from suspicions spawned by speculative inferences. Because of its subjective nature, this Court has been strictly scrutinizing the allegations and the evidence in cases of dismissal based on loss of trust and confidence because they can easily be concocted by an abusive employer. Thus, when the breach of trust or loss of confidence alleged is not borne by clearly established facts, as in this case, such dismissal on the cited grounds cannot be allowed. Ching v Nicdao, 522 SCRA 316 (2007) It is a basic rule in evidence that the burden of proof lies on the party who makes the allegations – Et incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit (The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof). In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of evidence" or "greater weight of the credible evidence." Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.
183
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Degree Cases Central Pangasinan Elec. Coop v Macaraeg, 395 SCRA 720 (2003) Article 282(c) of the Labor Code allows an employer to dismiss employees for willful breach of trust or loss of confidence. Proof beyond reasonable doubt of their misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that they are responsible for the misconduct and their participation therein rendered them unworthy of the trust and confidence demanded of their position. Salvador v Phil. Mining Service Corp., 395 SCRA 729 (2003) Preliminarily, the Labor Code provides that an employer may terminate the services of an employee for just cause and this must be supported by substantial evidence. The settled rule in administrative and quasi-judicial proceedings is that proof beyond reasonable doubt is not required in determining the legality of an employer’s dismissal of an employee, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise. Thus, substantial evidence is the least demanding in the hierarchy of evidence. Prescription Period Cases Victory Liner v Race, 519 SCRA 356 (2007) The four-year prescriptive period shall commence to run only upon the accrual of a cause of action of the worker. It is settled that in illegal dismissal cases, the cause of action accrues from the time the employment of the worker was unjustly terminated. Thus, the four-year prescriptive period shall be counted and computed from the date of the employee’s dismissal up to the date of the filing of complaint for unlawful termination of employment. Azcor Manufacturing v NLRC, 303 SCRA 26 (1999) In addition, an action for reinstatement by reason of illegal dismissal is one based on an injury which may be brought within four (4) years from the time of dismissal pursuant to Art. 1146 of the Civil Code. Hence, Capulso's case which was filed after a measly delay of four (4) months should not be treated with skepticism or cynicism. By law and settled jurisprudence, he has four (4) years to file his complaint for illegal dismissal. A delay of merely four (4) months in instituting an illegal dismissal case is more than sufficient compliance with the prescriptive period. It may betray an unlettered man's lack of awareness of his rights as a lowly worker but, certainly, he must not be penalized for his tarrying.
NIKKI HIPOLITO
NOTES
Antonio v Morales, 512 SCRA 318 (2007) This Court held that under the Civil Code, the prescription of an action refers to the time within which an action must be brought after the right of action has accrued. The prescriptive statutes serve to protect those who are diligent and vigilant, not those who sleep on their rights. The rationale behind the prescription of actions is to prevent fraudulent and stale claims from springing up at great distances of time, thus surprising the parties or their representatives when the facts have become obscure from the lapse of time or the defective memory or death or removal of the witnesses. Prescription applies even to the most meritorious claims. Prescription as understood and used in this jurisdiction does not simply mean a mere lapse of time. Rather, there must be a categorical showing that due to plaintiff’s negligence, inaction, lack of interest, or intent to abandon a lawful claim or cause of action, no action whatsoever was taken, thus allowing the statute of limitations to bar any subsequent suit. Offer to Reinstate Cases Ranara v NLRC, 212 SCRA 631 (1992) At any rate, sincere or not, the offer of reinstatement could not correct the earlier illegal dismissal of the petitioner. The private respondents incurred liability under the Labor Code from the moment Ranara was illegally dismissed, and the liability did not abate as a result of Chang's repentance.
G. SANCTIONS AND REMEDIES 14.07 General Rule Nature of Remedies—Twin Remedies: REINSTATEMENT + BACKWAGES Cases Marival Trading Inc v NLRC, 525 SCRA 708 (2007) Under Article 279 of the Labor Code, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, and to the payment of his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent, computed from the time his compensation was withheld from him up to the time of his actual reinstatement. These remedies give life to the worker’s constitutional right to security of tenure. In actions for recovery of wages or where an employee was forced to litigate and thus incurred expenses to protect his rights and interests, a maximum of 10% of the total monetary award by way of attorney’s fees is justifiable under Article 111 of the Labor Code, Section 8, Rule VIII, Book III of its Implementing Rules; and paragraph 7, Article 2208 of the Civil Code.
184
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Pheschem Industrial Corp v Moldez, 458 SCRA 339 (2005) On the issue of backwages, we reject the position of petitioner that its computation should be made only after the finality of the NLRC decision. Article 279 of the Labor Code provides that an illegally dismissed employee shall be entitled, inter alia, to the payment of his full backwages, inclusive of allowances and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him, i.e., from the time of his illegal dismissal, up to the time of his actual reinstatement. Thus, where reinstatement is adjudged, the award of backwages and other benefits continues beyond the date of the labor arbiter’s decision ordering reinstatement and extends up to the time said order of reinstatement is actually carried out. Nueva Ecija Electric Corp. v NLRC, 461 SCRA 169 (2005) Where the dismissal is without just or authorized cause and there was no due process, Article 279 of the Labor Code mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement. Lakpue Drug v Belga, 473 SCRA 617 (2005) An employee who was illegally dismissed from work is entitled to reinstatement without loss of seniority rights, and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Thus, Belga is entitled to be reinstated to her former or equivalent position and to the payment of full backwages from the time she was illegally dismissed until her actual reinstatement. Great Southern Maritime Services Corp v Acuna, 452 SCRA 422 (2005) A thorough scrutiny of the purported resignation letters reveals the true nature of these documents. In reality, they are waivers or quitclaims which are not sufficient to show valid separation from work or bar respondents from assailing their termination. The burden of proving that quitclaims were voluntarily entered into falls upon the employer. Deeds of release or quitclaim cannot bar employees from demanding benefits to which they are legally entitled or from contesting the legality of their dismissal. The reason for this rule was laid down in the landmark case of Cariño vs. ACCFA: Acceptance of those benefits would not amount to estoppel. The reason is plain. Employer and employee, obviously, do not stand on the same footing. The employer drove the employee to the wall. The latter must have to get hold of money. Because, out of job, he had to face the harsh necessities of life. He thus found himself in no NIKKI HIPOLITO
NOTES
position to resist money proffered. His, then, is a case of adherence, not of choice. One thing sure, however, is that petitioners did not relent their claim. They pressed it. They are deemed not to have waived any of their rights. Renuntiatio non praesumitur. Cabatulan v Buat, 451 SCRA 234 (2005) Under the existing law, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights. It must be emphasized, though, that the Court has declared that there are specific circumstances obtaining where reinstatement is not a practicable remedy, as when the relations between the employer and employee have been so severely strained that it is no longer fitting to order reinstatement or when the employee decides not to be reinstated. Separation pay is the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal during the period that he is seeking another employment. The grant of separation pay does not impede an award for backwages as the latter represents the amount of earnings lost by reason of unjustified dismissal. A more equitable settlement, therefore, would be an award of separation pay equivalent to at least one month pay for every year of service in addition to his full backwages, allowances and other benefits. Triad Security and Allied Services Inc v Ortega, 481 SCRA 591 (2006) As the law now stands, an illegally dismissed employee is entitled to two reliefs, namely: backwages and reinstatement. These are separate and distinct from each other. However, separation pay is granted where reinstatement is no longer feasible because of strained relations between the employee and the employer. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable and backwages. Backwages and separation pay are, therefore, distinct reliefs granted to one who was illegally dismissed from employment. The award of one does not preclude that of the other as this court had, in proper cases, ordered the payment of both. Rationale for Remedies Cases Globe-Mackay etc v NLRC, 206 SCRA 701 (1992) The intendment of the law in prescribing the twin remedies of reinstatement and payment of backwages is, in the former, to restore the dismissed employee to her status before she lost her job, for the dictionary meaning of the word "reinstate" is "to restore to a state, conditione positions etc. from which one had been removed" and in the latter, to give her back the income
185
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
lost during the period of unemployment. Both remedies, looking to the past, would perforce make her "whole." 14.08 Reinstatement Defined Cases Union of Supervisors v Secretary of Labor, 128 SCRA 442 (1981) Reinstatement is aimed to restore the situation as nearly as possible to status quo ante the unfair labor practice. This requires that those deprived of a recognized and protected interest by the violations of the law should be made whole so as to prevent the violator from profiting from his misdeeds. Pheschem Industrial Corp. v Moldez, 458 SCRA 339 (2005) Reinstatement is the restoration to a state or condition from which one had been removed or separated. In providing foremost for the reinstatement of an illegally dismissed employee, the Labor Code not only recognizes the security of tenure granted by law to regular employees, but also gives substance and meaning to the protection accorded by the Constitution to labor. Employment is significant to every working man. It is the means by which he sustains himself and his family, hence, the law mandates the reinstatement of an illegally dismissed employee to his former position. Payment of separation pay as a substitute for reinstatement is allowed only under exceptional circumstances, viz: (1) When reasons exist which are not attributable to the fault or beyond the control of the employer, such as, when the employer, who is in severe financial strait and has suffered serious business losses, has ceased operations, implemented retrenchment, or abolished the position due to the installation of labor-saving devices; (2) When the illegally dismissed employee has contracted a disease and his reinstatement will endanger the safety of his co-employees; or, (3) Where strained relationship exists between the employer and the dismissed employee. Employee Right Cases Quijano v Mercury Drug, 292 SCRA 109 (1998) Reinstatement is the remedy that most effectively restores the right of an employment before he was unjustly deprived of his job. In giving an illegally dismissed employee the right to reinstatement, the law recognizes the fact that continued employment gives to a worker, especially to a lowly or menial laborer, an assurance of continuity in his source of income which a grant of separation pay could not provide. In the case at bar, we give primacy to the employee's right to reinstatement rather than the employers claim that due to "strained relationship," his illegally dismissed employee should just be given separation pay.
NIKKI HIPOLITO
NOTES
Rosario v Victory Ricemill, 397 SCRA 760 (2003) On the other hand, with respect to dismissals for cause under Art. 282, if it is shown that the employee was dismissed for any of the just causes mentioned in said Art. 282, then, in accordance with that article, he should not be reinstated. However, he must be paid backwages from the time his employment was terminated until it is determined that the termination of employment is for a just cause because the failure to hear him before he is dismissed renders the termination of his employment without legal effect. In fine, the lack of notice and hearing is considered as being a mere failure to observe a procedure for the termination of employment which makes the dismissal ineffectual but not necessarily illegal. The procedural infirmity is then remedied by ordering the payment to the employee his full backwages from the time of his dismissal until the court finally rules that the dismissal has been for a valid cause. Supreme Steel Corp v Bardaje, 522 SCRA 155 (2007) W]here a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the law’s concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all circumstances of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what had been done by them For all this while, since private respondent considered them separated from the service, they had not been paid. Panuncillo v CAP Phil., 515 SCRA 323 (2007) The issuance of the temporary restraining order … did not nullify the rights of private respondents to their reinstatement and to collect their wages during the period of the effectivity of the order but merely suspended the implementation thereof pending the determination of the validity of the NLRC resolutions subject of the petition. Naturally, a finding of this Court that private respondents were not entitled to reinstatement would mean that they had no right to collect any back wages. On the other hand, where the Court affirmed the decision of the NLRC and recognized the right of private respondents to reinstatement,… private respondents are entitled to the wages accruing during the effectivity of the temporary restraining order. Effect of Failure to Ask Relief Cases General Baptist Bible College v NLRC, 219 SCRA 549 (1993) We hereby note that Basa's failure to specifically pray for the relief of reinstatement in a complaint which he personally prepared and signed using a standard form prepared by the NLRC Regional Arbitration, Branch No XI,
186
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Davao City, is a procedural lapse which cannot put to naught a right which he is entitled under a substantive law. Technicalities have no room in labor cases, were the Rules of Court are applicable only in order to effectuate the objectives of the Labor Code and not to defeat them. The pertinent provisions of the Revised Rules of Court of the Philippines and prevailing jurisprudence may be applied by analogy or in a suppletory character to effect an expeditious resolution of labor controversies in a practical and convenient manner. Pheschem Industrial v Moldez, 458 SCRA 339 (2005) Respondent’s omission to pray for reinstatement in his position paper before the labor arbiter cannot be considered as an implied waiver to be reinstated. It was a mere procedural lapse which should not affect his substantive right to reinstatement. It is a settled principle that technicalities have no place in labor cases as rules of procedure are designed primarily to give substance and meaning to the objectives of the Labor Code to accord protection to labor. Rules on Reinstatement Rationale Cases Composite Enterprises v Caparoso, 529 SCRA 470 (2007) Reinstatement is the restoration to a state or condition from which one has been removed or separated. The intent of the law in making a reinstatement order immediately executory is much like a return-to-work order, i.e., to restore the status quo in the workplace in the meantime that the issues raised and the proofs presented by the contending parties have not yet been finally resolved. It is a legal provision which is fair to both labor and management because while execution of the order cannot be stayed by the posting of a bond by the employer, the workers also cannot demand their physical reinstatement if the employer opts to reinstate them only in the payroll. Roquero v PAL, 401 SCRA 424 (2003) "In authorizing execution pending appeal of the reinstatement aspect of a decision of the Labor Arbiter reinstating a dismissed or separated employee, the law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man. These duties and responsibilities of the State are imposed not so much to express sympathy for the workingman as to forcefully and meaningfully underscore labor as a primary social and economic force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable partner for the nation's progress and stability.
NIKKI HIPOLITO
NOTES
In short, with respect to decisions reinstating employees, the law itself has determined a sufficiently overwhelming reason for its execution pending appeal. . . . Then, by and pursuant to the same power (police power), the State may authorize an immediate implementation, pending appeal, of a decision reinstating a dismissed or separated employee since that saving act is designed to stop, although temporarily since the appeal may be decided in favor of the appellant, a continuing threat or danger to the survival or even the life of the dismissed or separated employee and his family." Phil. National Oil Co. Energy Development Corp. v Abella, 448 SCRA 549 (2005) Accordingly, an employee who is separated from his employment on a false or nonexistent cause is entitled to be reinstated to his former position because the separation is illegal. If the position is no longer available for any other valid and justifiable reason, however, the reinstatement of the illegally dismissed employee to his former position would neither be fair nor just. The law itself can not exact compliance with what is impossible. Ad imposible tenetur. The employer’s remedy is to reinstate the employee to a substantially equivalent position without loss of seniority rights as provided for above. G&S Transport Corp v Infante, 533 SCRA 288 (2007) Section 4, Rule I of the Rules Implementing Book VI of the Labor Code provides: SEC. 4. Reinstatement to former position.—(a) An employee who is separated from work without just cause shall be reinstated to his former position, unless such position no longer exists at the time of his reinstatement, in which case he shall be given a substantially equivalent position in the same establishment without loss of seniority rights. The above-quoted rule enunciates reinstatement as the standard relief. However, in this case, seventeen (17) years have elapsed since respondents were illegally dismissed. In Association of Independent Unions in the Philippines v. NLRC, where more than eight (8) years have passed since the petitioners therein staged an illegal strike and were found to have been unlawfully terminated, an award of separation pay equivalent to one (1) month pay for every year of service, in lieu of reinstatement, was deemed more practical and appropriate to all the parties concerned. We adopt the same tack in this case.
187
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Exceptions BUSINESS CONDITIONS Cases Union of Supervisors v Secretary of Labor, 128 SCRA 442 (1981) The reinstatement remedy must always be adapted to economic-business conditions. Espejo v NLRC, 255 SCRA 430 (1996) We sustain the challenged decision insofar as it disallowed reinstatement. The law recognizes as valid any retirement plan, agreement or management policy regarding retirement at an earlier or older age. In the case of petitioner, CISP did not have any retirement plan for its employees. In such situation, Sec. 13, Book IV, of the Omnibus Rules Implementing the Labor Code provides that in the absence of a retirement plan, agreement or policy an employee may be retired upon reaching the age of-sixty (60) years. Construing this provision, we held that an employee may retire, or may be retired by his employer, upon reaching sixty (60). Thus, an employee held to be illegally dismissed cannot be reinstated if he had already reached the age of sixty (60) years at the time of his second complaint (pressing for reinstatement) before the Labor Arbiter's Office. NLRC therefore did not err in denying the reinstatement of Petitioner. STRAINED RELATIONS Cases Pearl S. Buck Foundation v NLRC, 182 SCRA 446 (1990) The parties to a case should not be forced into a situation where a peaceful relationship is not feasible. As the petitioner appears to have lost its trust in private respondent, who in turn is not seeking reinstatement, it would be an act of oppression to compel them to return to the status quo ante. Commercial Motors Corp v NLRC, 192 SCRA 191 (1990) Over time, the following reasons have been advanced by the Court for denying reinstatement under the facts of the case and the law applicable thereto… to an increasing extent, due to the resultant atmosphere of “antipathy and antagonism” or “strained relations” or “irretrievable estrangement” between the employer and the employee. Sentinel Security Agency Inc v NLRC, 295 SCRA 123 (1998) The Agency cannot reassign them to the client, as the former has recruited new security guards; the complainants, on the other hand, refuse to accept other assignments. Verily, complainants do not pray for reinstatement; in fact, they refused to be reinstated. Such refusal is indicative of strained relations. Thus, separation pay is awarded in lieu of reinstatement. Sibal v Notre Dame of Greater Manila, 182 SCRA 538 (1990)
NIKKI HIPOLITO
NOTES
No strained relations should arise from a valid and legal act of asserting ones right, such as in the instant case, for otherwise, an employee who shall assert his/ her right could be easily separated from the service by merely paying his/her separation pay on the pretext that his/her relationship with his/her employer had already become strained. To Our mind, strained relations in order that it may justify the award of separation pay in lieu of reinstatement with backwages, should be such, that they are so compelling and so serious in character, that the continued employment of an employee is so obnoxious to the person or business of the employer, and that the continuation of such employment has become inconsistent with peace and tranquility which is an Ideal atmosphere in every workplace. Naga College Foundation Education Workers Organization v Bose, 289 SCRA 747 (1998) No strained relations should arise from a valid and legal act of asserting one's right; otherwise an employee who shall assert his right could be easily separated from the service, by merely paying his separation pay on the pretext that his relationship with his employer had already become strained. Bascon v CA, 422 SCRA 122 (2004) To protect labor’s security of tenure, we emphasize that the doctrine of "strained relations" should be strictly applied so as not to deprive an illegally dismissed employee of his right to reinstatement. Every labor dispute almost always results in "strained relations," and the phrase cannot be given an overarching interpretation, otherwise, an unjustly dismissed employee can never be reinstated. Cabatulan v Buat, 451 SCRA 234 (2005) Under the existing law, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights. It must be emphasized, though, that the Court has declared that there are specific circumstances obtaining where reinstatement is not a practicable remedy, as when the relations between the employer and employee have been so severely strained that it is no longer fitting to order reinstatement or when the employee decides not to be reinstated. It must be stressed that the petitioner was charged by the respondent spouses with qualified theft and was even coerced into withdrawing the labor case against them. No other conclusion may be deduced other than the categorical fact that antagonism already caused a severe strain in the relationship between the respondent spouses and petitioner. Separation pay is the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal during the period that he is seeking another employment. The grant of separation pay does not impede an award for backwages as the latter represents the amount of earnings lost by reason of unjustified dismissal. A more equitable settlement, therefore,
188
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
would be an award of separation pay equivalent to at least one month pay for every year of service in addition to his full backwages, allowances and other benefits. Acesite Corp v NLRC, 449 SCRA 360 (2005) In illegal dismissal cases, reinstatement to an illegally dismissed employee’s former position may be excused on the ground of "strained relations." This may be invoked against employees whose positions demand trust and confidence, or whose differences with their employer are of such nature or degree as to preclude reinstatement. In the case at bar, Gonzales was Chief of Security, whose duty was to "manage the operation of the security areas of the hotel to provide and ensure the safety and security of the hotel guests, visitors, management, staff and their properties according to company policies and local laws.” It cannot be gainsaid that Gonzales’ position is one of trust and confidence, he being in charge of the over-all security of said hotel. Thus, reinstatement is no longer possible. In lieu thereof, Acesite is liable to pay separation pay of 1 month for every year of service. BPI Employees Union v BPI, 454 SCRA 357 (2005) Well-entrenched is the rule that an illegally dismissed employee is entitled to reinstatement as a matter of right. Over the years, however, the case law developed that where reinstatement is not feasible, expedient or practical, as where reinstatement would only exacerbate the tension and strained relations between the parties, or where the relationship between the employer and employee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a managerial or key position in the company, it would be more prudent to order payment of separation pay instead of reinstatement. Some unscrupulous employers, however, have taken advantage of the overgrowth of this doctrine of strained relations' by using it as a cover to get rid of its employees and thus defeat their right to job security. To protect labor's security of tenure, we emphasize that the doctrine of 'strained relations' should be strictly applied so as not to deprive an illegally dismissed employee of his right to reinstatement. Every labor dispute almost always results in 'strained relations' and the phrase cannot be given an overarching interpretation, otherwise, an unjustly dismissed employee can never be reinstated. Sagum v CA, 459 SCRA 223 (2005) The existence of strained relations is a factual finding and should be initially raised, argued and proven before the Labor Arbiter. Petitioner is correct that the finding of strained relations does not have any basis on the records. Indeed, nowhere was the issue raised in private respondents' pleadings before the Labor Arbiter and the NLRC. Sieving through the records, private respondents first raised the issue in their Comment to Petitioner's Motion for NIKKI HIPOLITO
NOTES
Partial Reconsideration before the Court of Appeals. In Globe-Mackay Cable and Radio Corporation v. NLRC, we emphasized that the principle of strained relations cannot be applied indiscriminately. Otherwise, an illegally dismissed employee can never be reinstated because invariably, some hostility is engendered between litigants. As a rule, no strained relations should arise from a valid and legal act of asserting one's right; otherwise, an employee who asserts his right could be easily separated from the service by merely paying his separation pay on the pretext that his relationship with his employer had already become strained. IMPLEMENTATION = OPTIONS AND RATIONALE Options and Rationale Cases Jardine Davies Inc v NLRC, 225 SCRA 757 (1993) The order of immediate reinstatement pending appeal, in cases of illegal dismissal is an ancillary relief under R.A. 6715 granted to a dismissed employee to cushion him and his family against the impact of economic dislocation or abrupt loss of earnings. If the employee chooses not to report for work pending resolution of the case appeal, he foregoes such a temporary relief and is not paid of his salary. The final determination of the rights and obligations respectively of the parties is the ultimate and final resolution of this Commission. Pioneer Texturing Corp v NLRC, 280 SCRA 380 (1997) The provision of Article 223 is clear that an award for reinstatement shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. The legislative intent is quite obvious, i.e., to make an award of reinstatement immediately enforceable, even pending appeal. To 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. The reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. International Container Services Inc v NLRC, 300 SCRA 335 (1998) Under Art. 223 as presently construed, the reinstatement aspect of the Labor Arbiter's decision, albeit under appeal, was immediately enforceable as a consequence of which, petitioner, as the employer, was duty-bound to choose forthwith whether to re-admit Tanpiengco or to reinstate him in the payroll and to inform Tanpiengco of its choice to enable the latter to act accordingly. Failing to exercise the options in the alternative, petitioner must pay the salary of Tanpiengco which automatically accrued from notice of the Labor Arbiter's order of reinstatement until its ultimate reversal by the NLRC.
189
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Kiamco v NLRC, 309 SCRA 424 (1999) If in the wisdom of the Court, there may be a ground or grounds for the nonapplication of the above-cited provision (Art. 279, Labor Code) this should be by way of exception, such as when the reinstatement may be inadmissible due to ensuing strained relations between the employer and employee. In such cases, it should be proved that the employee concerned occupies a position where he enjoys the trust and confidence of his employer; and that it is likely that if reinstated, an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee concerned x x x x Obviously, the principle of “strained relations” cannot be applied indiscriminately. Otherwise, reinstatement can never be possible simply because some hostility is invariably engendered between the parties as a result of litigation. That is human nature. Besides, no strained relations should arise from a valid legal act of asserting one’s right; otherwise an employee who shall assert his right could be easily separated from the service, by merely paying his separation pay on the pretext that his relationship with his employer had already become strained. 14.08 Backwages Definition Cases Equitable Banking Corp. v Sadac, 490 SCRA 380 (2006) The term ‘backwages without qualification and deduction’ means that the workers are to be paid their backwages fixed as of the time of the dismissal or strike without deduction for their earnings elsewhere during their layoff and without qualification of their wages as thus fixed; i.e., unqualified by any wage increases or other benefits that may have been received by their co-workers who are not dismissed or did not go on strike. Awards including salary differentials are not allowed. The salary base properly used should, however, include not only the basic salary but also the emergency cost of living allowances and also transportation allowances if the workers are entitled thereto." St. Theresa’s School of Novaliches Foundation v NLRC, 289 SCRA 110 (1998) The term “backwages” has been defined as that for earnings lost by a worker due to his illegal dismissal. Backwages are generally granted on grounds of equity. Payment thereof is a form of relief that restores the income lost by reason of such unlawful dismissal. It is not private compensation or damages, but is awarded in furtherance and effectuation of the public objectives of the Labor Code. Nor is it a redress of a private right but, rather, in the nature of a command to the employer to make public
NIKKI HIPOLITO
NOTES
reparation for dismissing an employee, either due to the former’s unlawful act or bad faith. General Baptist Bible College v NLRC, 219 SCRA 549 (1993) When the term "backwages" was used in the NLRC Decision, what was actually meant was unpaid salaries, which pertain to compensation due the employee for services actually rendered before termination. Backwages, on the other hand, refer to his supposed earnings had he not been illegally dismissed. Unpaid salaries refer to those earned prior to dismissal whereas backwages refer to those earnings lost after illegal dismissal. Thus, reinstatement would always bring with it payment of backwages but not necessarily payment of unpaid salaries. Payment of unpaid salaries is only ordered if there are still salaries collectible from his employer by reason of services already rendered. We also want to clarify that when there is an award of backwages this actually refers to backwages without qualifications and deductions. Thus, We held that: The term "backwages without qualification and deduction" means that the workers are to be paid their backwages fixed as of the time of the dismissal or strike without deduction for their earnings elsewhere during their layoff and without qualification of their wages as thus fixed; i.e., unqualified by any wage increases or other benefits that may have been received by their co-workers who are not dismissed or did not go on strike. Awards including salary differentials are not allowed. The salary base properly used should, however, include not only the basic salary but also the emergency cost of living allowances and also transportation allowances of the workers are entitled thereto. Viernes v NLRC, 400 SCRA 557 (2003) Backwages are granted on grounds of equity to workers for earnings lost due to their illegal dismissal from work. On the other hand, the award of indemnity, as we have earlier held, is meant to vindicate or recognize the right of an employee to due process which has been violated by the employer. Nature—Purpose Cases Tomas Claudio Memorial College Inc v CA, 423 SCRA 122 (2004) The payment of backwages is generally granted on the ground of equity. It is a form of relief that restores the income that was lost by reason of the unlawful dismissal; the grant thereof is intended to restore the earnings that would have accrued to the dismissed employee during the period of dismissal until it is determined that the termination of employment is for a just cause. It is not private compensation or damages but is awarded in
190
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
furtherance and effectuation of the public objective of the Labor Code. Nor is it a redress of a private right but rather in the nature of a command to the employer to make public reparation for dismissing an employee either due to the former’s unlawful act or bad faith. Effect of Failure to Claim Cases Dela Cruz v NLRC, 299 SCRA 1 (1998) Petitioner would have, likewise, been entitled to reinstatement as a consequence of his illegal dismissal from employment. However, by expressly asking for separation pay, he is deemed to have opted for separation pay in lieu of reinstatement. This is the tenor of the holding in Reformist Union v. NLRC to the effect that separation pay is awarded as an alternative to reinstatement. Effect of Failure to Order Cases Aurora Land v NLRC, 266 SCRA 48 (1997) In this case, the failure of the Labor Arbiter and the public respondent NLRC to award backwages to the private respondent, who is legally entitled thereto having been illegally dismissed, amounts to a "plain error" which we may rectify in this petition, although private respondent Dagui did not bring any appeal regarding the matter, in the interest of substantial justice. The Supreme Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a just decision of the case. Rules of procedure are mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Thus, substantive rights like the award of backwages resulting from illegal dismissal must not be prejudiced by a rigid and technical application of the rules. Period—Computation Cases Itogon Suyoc v Sangilo, 24 SCRA 873 (1968) The judgment below directs petitioner to pay individual respondents back wages from the time of their dismissal to their actual reinstatement without loss of seniority and privileges. Since the dismissal of respondents in 1958, more than ten years had elapsed. It would not seem out of place to restate the guidelines to be observed in the ascertainment of the total back wages payable under the judgment below. These are:
NOTES
employment(s) from the date of dismissal to the date of reinstatement. Should the laborer decide that it is preferable not to return to work, the deduction should be made up to the time judgment becomes final. And these, for the reason that employees should not be permitted to enrich themselves at the expense of their employer. Besides, there is the "law's abhorrence for double compensation." Second. Likewise, in mitigation of the damages that the dismissed respondents are entitled to, account should be taken of whether in the exercise of due diligence respondents might have obtained income from suitable remunerative employment. We are prompted to give out this last reminder because it is really unjust that a discharged employee should, with folded arms, remain inactive in the expectation that a windfall would come to him. A contrary view would breed idleness; it is conducive to lack of initiative on the part of a laborer. Both bear the stamp of undesirability. Feati University v Bautista, 58 SCRA 395 (1974) The computation of such accrued backwages shall be based on the university records and payrolls as directed in the industrial court’s February 7, 1969 execution order (upheld by this Court in L-30484 on May 22, 1969) save that the report of such computation shall be made to the industrial court within thirty (30) days from notice hereof and payment of the three years backwages (based on ten months per year) without qualification or deduction shall be effected immediately thereafter to the faculty club members entitled thereto. Mercury Drug v CIR, 56 SCRA 694 (1974)—ABANDONED An award of back wages equivalent to three years (where the case is not terminated sooner) should serve as the base figure for such awards without deduction, subject to deduction where there are mitigating circumstances in favor of the employer but subject to increase by way of exemplary damages where there are aggravating circumstances (e.g. oppression or dilatory appeals) on the employer's part. Separate Opinion of J. Teehankee Pines City Educational Center v NLRC, 227 SCRA 655 (1993) Thus, the order for their reinstatement and payment of full backwages and other benefits and privileges from the time they were dismissed up to their actual reinstatement is proper, conformably with Article 279 of the Labor Code, as amended by Section 34 of Republic Act No. 6715, which took effect on March 21, 1989. Bustamante v NLRC, 265 SCRA 61 (1996) The law specifically declared that the award of backwages was to be computed from the time compensation was withheld from the employee up to the time of his reinstatement.
First. To be deducted from the back wages accruing to each of the laborers to be reinstated is the total amount of earnings obtained by him from other NIKKI HIPOLITO
191
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
The Court deems it appropriate, however, to reconsider such earlier ruling on the computation of backwages as enunciated in said Pines City Educational Center case, by now holding that conformably with the evident legislative intent as expressed in Rep. Act No. 6715, above-quoted, backwages to be awarded to an illegally dismissed employee, should not, as a general rule, be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. The underlying reason for this ruling is that the employee, while litigating the legality (illegality) of his dismissal, must still earn a living to support himself and family, while full backwages have to be paid by the employer as part of the price or penalty he has to pay for illegally dismissing his employee. The clear legislative intent of the amendment in Rep. Act No. 6715 is to give more benefits to workers than was previously given them under the Mercury Drug rule or the "deduction of earnings elsewhere" rule. Thus, a closer adherence to the legislative policy behind Rep. Act No. 6715 points to "full backwages" as meaning exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal. In other words, the provision calling for "full backwages" to illegally dismissed employees is clear, plain and free from ambiguity and, therefore, must be applied without attempted or strained interpretation. Index animi sermo est. Romagos v Metro Cebu Water District, 533 SCRA (2007) However, the award of backwages and other monetary benefits should not be limited to 5 years and must therefore be modified in line with the recent case of Civil Service Commission v. Gentallan. We held in said case that an illegally dismissed government employee who is later ordered reinstated is entitled to backwages and other monetary benefits from the time of her illegal dismissal up to her reinstatement. This is only fair and just because an employee who is reinstated after having been illegally dismissed is considered as not having left her office and should be given the corresponding compensation at the time of her reinstatement. G&S Water Transport Corp v Infante, 533 SCRA 288 (2007) Under the circumstances, respondents’ reinstatement without backwages suffices for the appropriate relief. If reinstatement is no longer possible, given the lapse of considerable time from the occurrence of the strike, the award of separation pay of one (1) month salary for each year of service, in lieu of reinstatement, is in order. Del Monte v Saldiar, 504 SCRA 192 (2006) Del Monte cites a jurisprudential rule that an employer who acted in good faith in dismissing employees on the basis of a closed- shop provision may not be penalized even if the dismissal were illegal. Such a doctrine is admittedly supported by the early case of National Labor Union v. Zip Venetian Blind and the later decision in 1989 of Soriano v. Atienza, wherein the Court affirmed the disallowance of backwages or "financial assistance" in NIKKI HIPOLITO
NOTES
dismissals under the aforementioned circumstance. However, the Court now recognizes that this doctrine is inconsistent with Article 279 of the Labor Code, as amended by Republic Act No. 6715, which took effect just five (5) days after Soriano was promulgated. It is now provided in the Labor Code that "[a]n employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement." Thus, where reinstatement is adjudged, the award of backwages and other benefits continues beyond the date of the labor arbiter's decision ordering reinstatement and extends up to the time said order of reinstatement is actually carried out. Torres v NLRC, 330 SCRA 311 (2000) Now, the rule is that back wages awarded to an illegally dismissed employee shall not be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. Kay Products v CA, 464 SCRA 544 (2005) Thus, the said provision provides that illegally dismissed employees are entitled to backwages plus other benefits computed from the time compensation was withheld up to the time of actual reinstatement. An illegally dismissed employee who, in contemplation of the law, never left his office, should be granted the compensation which rightfully belongs to him from the moment he was unduly deprived of it up to the time it was restored to him; the backwages to be awarded should not be diminished or reduced by earnings derived by the illegally dismissed employee elsewhere during the term of his illegal dismissal. Standard Electric Manufacturing Corp v Standard Electric Employees Union, 468 SCRA 316 (2005) Finally, in line with the rulings of this Court in Magtoto and Pedroso on the matter of backwages, respondent Javier is not entitled to any salary during the period of his detention. His entitlement to full backwages commenced from the time the petitioner refused his reinstatement. In the instant case, when respondent Javier was freed on May 24, 1996 by virtue of the judgment of acquittal dated May 17, 1996, he immediately proceeded to the petitioner but was not accepted back to work; hence, the reckoning point for the grant of backwages started therefrom. BPI Employees Union v BPI, 454 SCRA 357 (2005) Verily, the evident legislative intent as expressed in Rep. Act No. 6715, above-quoted, is that the backwages to be awarded to an illegally dismissed employee, should not, as a general rule, be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal.
192
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
The underlying reason for this ruling is that the employee, while litigating the legality (illegality) of his dismissal, must still earn a living to support himself and his family. Corollary thereto, full backwages have to be paid by the employer as part of the price or penalty he has to pay for illegally dismissing his employee. Thus, a closer adherence to the legislative policy behind Rep. Act. No. 6715 points to 'full backwages' as meaning exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal. In other words, the provision calling for 'full backwages' to illegally dismissed employees is clear, plain and free from ambiguity and, therefore, must be applied without attempted or strained interpretation. Consequently, in accordance with Section 34, Rep. Act No. 6715, employees illegally dismissed after 21 March 1989 are entitled to their 'full backwages, inclusive of other benefits or their monetary equivalent, from the time their actual compensation was withheld from them up to the time of their actual reinstatement. Filipinas Pre-Fabricated Building Systems v Puente, 453 SCRA 820 (2005) Without a valid cause, the employment of project employees cannot be terminated prior to expiration. Otherwise, they shall be entitled to reinstatement with full back wages. However, if the project or work is completed during the pendency of the ensuing suit for illegal dismissal, the employees shall be entitled only to full back wages from the date of the termination of their employment until the actual completion of the project or work. Intercontinental Broadcasting Corp v Benedicto, 495 SCRA 561 (2006) -- NO RELATION TO COMPUTATION OF BACKWAGES TPI Cement Corp v Cajucom, 483 SCRA 494 (2006) It bears reiterating that under Article 283, in case of retrenchment to prevent losses, respondent is entitled to an award of separation pay equivalent to one-half (1/2) month’s pay for every year of service (with a fraction of at least six [6 months considered one [1 whole year). Since he was employed by petitioners for four (4) years, or from June 1, 1995 to December 30, 1998, with a monthly salary of P80,000.00, he should be paid P160,000.00 as separation pay. Effect of Inflation Cases Lantion v NLRC, 181 SCRA 513 (1990) In respect of the argument that the inflation that has supervened justifies the imposition of interest, this Court has held that the effects of extraordinary inflation are not to be applied without an agreement between NIKKI HIPOLITO
NOTES
the parties and without an official declaration thereof by competent authorities. 14.10 Financial Assistance Allowed Financial Assistance Cases PLDT v NLRC, 164 SCRA 671 (1988) We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice. Salavarria v Letran College, 296 SCRA 184 (1998) As a general rule, an employee who is dismissed for cause is not entitled to any financial assistance. However, equity considerations provide an exception. In PLDT v. NLRC, equity has been defined as justice outside law, being ethical rather than jural and belonging to the sphere of morals than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. Further, it was held that the grant of separation pay is not merely based on equity but on the provisions of the Constitution regarding the promotion of social justice and protection of the rights of the workers. Gustilo v Wyeth Phils, 440 SCRA 67 (2004) We are of course aware that financial assistance may be allowed as a measure of social justice in exceptional circumstances and as an equitable concession. We are likewise mindful that financial assistance is allowed only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Pinero v NLRC, 437 SCRA 112 (2004) An employee who is dismissed for cause is generally not entitled to any financial assistance. Equity considerations, however, provide an exception. Equity has been defined as justice outside law, being ethical rather than jural and belonging to the sphere of morals than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. Eastern Shipping Lines v Sedan, 486 SCRA 565 (2006) We are not unmindful of the rule that financial assistance is allowed only in instances where the employee is validly dismissed for causes other than
193
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
serious misconduct or those reflecting on his moral character. Neither are we unmindful of this Court’s pronouncements in Arc- Corporation v. NLRC, Lemery Savings and Loan Bank v. NLRC, where the Court ruled that when there is no dismissal to speak of, an award of financial assistance is not in order. But we must stress that this Court did allow, in several instances, the grant of financial assistance. In the words of Justice Sabino de Leon, Jr., now deceased, financial assistance may be allowed as a measure of social justice and exceptional circumstances, and as an equitable concession. The instant case equally calls for balancing the interests of the employer with those of the worker, if only to approximate what Justice Laurel calls justice in its secular sense. Pangasinan Electric Coop. v NLRC, 528 SCRA 146 (2007) Although long years of service might generally be considered for the award of separation benefits or some form of financial assistance to mitigate the effects of termination, this case is not the appropriate instance for generosity under the Labor Code nor under our prior decisions. The fact that private respondent served petitioner for more than twenty years with no negative record prior to his dismissal, in our view of this case, does not call for such award of benefits, since his violation reflects a regrettable lack of loyalty and worse, betrayal of the company. If an employee’s length of service is to be regarded as a justification for moderating the penalty of dismissal, such gesture will actually become a prize for disloyalty, distorting the meaning of social justice and undermining the efforts of labor to cleanse its ranks of undesirables. Not Allowed Cases Phil. Construction Corp v NLRC, 170 SCRA 207 (1989) Henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice. Eastern Paper Mills v NLRC, 170 SCRA 595 (1989) The only cases when separation pay shall be paid, although the employee was lawfully dismissed, are when the cause of termination was not attributable to the employee's fault but due to: (1) the installation of laborsaving devices, (2) redundancy (3) retrenchment, (4) cessation of the employer's business, or (5) when the employee is suffering from a disease and his continued employment is prohibited by law or is prejudicial to his NIKKI HIPOLITO
NOTES
health and to the health of his co- employees. (Articles 283 and 284, Labor Code.) Other than these cases, an employee who is dismissed for a just and lawful cause is not entitled to separation pay even if the award were to be called by another name. Chua v NLRC, 218 SCRA 545 (1993) This Court has several times ruled that "financial assistance", whatever form it might assume, is permissible where the employee has been validly dismissed, only in those instances where the cause of dismissal was something other than serious misconduct on the part of the employee or other cause reflecting adversely on the employee's moral character. 14.11 Separation Pay When –Alternative—WHEN REINSTATEMENT IMPOSSIBLE Cases Coca-Cola Bottlers Phil. v Vital, 438 SCRA 278 (2004) However, the circumstances obtaining in this case do not warrant the reinstatement of respondent. Antagonism caused a severe strain in the relationship between him and petitioner company. A more equitable disposition would be an award of separation pay equivalent to at least one month pay, or one month pay for every year of service, whichever is higher, (with a fraction of at least six (6) months being considered as one (1) whole year), in addition to his full backwages, allowances and other benefits. Gustilo v Wyeth Phils., 440 SCRA 67 (2004) "x x x henceforth, separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, x x x an offense involving moral turpitude x x x, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice." National Federation of Labor v CA, 440 SCRA 604 (2004) --case cannot be located Pheschem Industrial Corp v Moldez, 458 SCRA 339 (2005) The legal consequences of an illegal dismissal are reinstatement of the employee without loss of seniority rights and other privileges, and payment of his full backwages, inclusive of allowances, and other benefits or their monetary equivalent. Clearly, the law intended reinstatement to be the general rule. It is only when reinstatement is no longer feasible that payment of separation pay is awarded to an illegally dismissed employee.
194
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Etcuban v Sulpicio Liners, 448 SCRA 516 (2005) Well-settled is the rule that separation pay shall be allowed only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Inasmuch as reason for which the petitioner was validly separated involves his integrity, which is especially required for the position of purser, he is not worthy of compassion as to deserve at least separation pay for his length of service. Hanford Phils v Joseph, 454 SCRA 786 (2005) It is well to note that there is no provision in the Labor Code which grants separation pay to employees who voluntarily resign. Under the Code, separation pay may be awarded only in cases when the termination of employment is due to: (a) installation of labor saving devices, (b) redundancy, (c) retrenchment, (d) closing or cessation of business operations, (e) disease of an employee and his continued employment is prejudicial to himself or his co-employees, or (f) when an employee is illegally dismissed but reinstatement is no longer feasible.
NOTES
not been dismissed and had not stopped working. 20 The same holds true in case of retrenched employees. And thus we applied Insular and Soriano in Planters in the computation of separation pay of retrenched employees. Songco likewise involved retrenchment and was relied upon in Planters, Soriano and Santos in determining the proper amount of separation pay. As culled from the foregoing jurisprudence, separation pay when awarded to an illegally dismissed employee in lieu of reinstatement or to a retrenched employee should be computed based not only on the basic salary but also on the regular allowances that the employee had been receiving. But in view of the previous discussion that the disputed allowances were not regularly received by petitioners herein, there was no reason at all for petitioners to resort to the above cases. Effect of Acceptance Cases Anino v NLRC, 290 SCRA 489 (1998) The recognized and accepted doctrine is that a dismissed employee who has accepted separation pay is not necessarily estopped from challenging the validity of his or her dismissal. Neither does it relieve the employer of legal obligations. LIABILITY OF CORPORATE OFFICERS
When not Allowed Cases North Davao Mining Corp v NLRC, 254 SCRA 721 (1996) The underscored portion of Art. 283 governs the grant of separation benefits "in case of closures or cessation of operation" of business establishments "NOT due to serious business losses or financial reverses . . . ". Where, however, the closure was due to business losses — as in the instant case, in which the aggregate losses amounted to over P20 billion — the Labor Code does not impose any obligation upon the employer to pay separation benefits, for obvious reasons. Computation Cases Millares v NLRC, 305 SCRA 500 (1999) In Santos, the Court decreed that in the computation of separation pay awarded in lieu of reinstatement, account must be taken not only of the basic salary but also of transportation and emergency living allowances. Later, the Court in Soriano, citing Santos, was general in its holding that the salary base properly used in computing separation pay where reinstatement was no longer feasible should include not just the basic salary but also the regular allowances that the employee had been receiving. Insular merely reiterated the aforementioned rulings. The rationale is not difficult to discern. It is the obligation of the employer to pay an illegally dismissed employee the whole amount of his salaries plus all other benefits, bonuses and general increases to which he would have been normally entitled had he NIKKI HIPOLITO
Liability Rule Cases Bogo-Medellin Sugarcane Planters Assn. v NLRC, 296 SCRA 108 (1998) Unless they have exceeded their authority, corporate officers are, as a general rule, not personally liable for their official acts, because a corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders and members. However, this fictional veil may be pierced whenever the corporate personality is used as a means of perpetuating fraud or an illegal act, evading an existing obligation, or confusing a legitimate issue. In cases of illegal dismissal, corporate directors and officers are solidarily liable with the corporation, where terminations of employment are done with malice or in bad faith. NYK International v NLRC, 397 SCRA 607 (2003) In this case Cathy Ng, admittedly, is the manager of NYK. Conformably with our ruling in A. C. Ransom, she falls within the meaning of an "employer" as contemplated by the Labor Code, who may be held jointly and severally liable for the obligations of the corporation to its dismissed employees. Pursuant to prevailing jurisprudence, Cathy Ng, in her capacity as manager and responsible officer of NYK, cannot be exonerated from her joint and several liability in the payment of monetary award to private respondent.
195
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
NOTES
Tan v Timbal, Jr., 434 SCRA 381 (2004) In labor cases, corporate directors and officers are solidarily liable with the corporation for the termination of employment of corporate employees committed with malice or bad faith. The ruling applies in a case where a corporate officer acts with malice or bad faith in suspending an employee. Whether or not the petitioner acted with malice or bad faith in ordering the suspension of the respondent is a question of fact submitted by the parties to the Labor Arbiter for resolution.
Viernes v NLRC, 400 SCRA 557 (2003) The indemnity is in the form of nominal damages intended not to penalize the employer but to vindicate or recognize the employee’s right to procedural due process which was violated by the employer. Under Article 2221 of the Civil Code, nominal damages are 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.
Acesite Corp v NLRC, 449 SCRA 360 (2005) In holding Angerbauer and Kennedy solidarily liable, the NLRC intended "to deter other foreign employer[s] from repeating the inhuman treatment of their Filipino employees who should be treated with equal respect especially in their own land and prevent further violation of their human rights as employees."
Tolosa v NLRC, G.R. No. 149578. April 10, 2003 “Claims for damages under paragraph 4 of Article 217 must have a reasonable causal connection with any of the claims provided for in the article in order to be cognizable by the labor arbiter. Only if there is such a connection with the other claims can the claim for damages be considered as arising from employer-employee relations.”
The records of the case do not, however, show any inhuman treatment of Gonzales. His superiors just happen to be foreigners. Moreover, as previously discussed, bad faith or malice was not proven. Angerbauer, acting on behalf of Acesite, was, like Gonzales, perhaps also too presumptuous in thinking that the telegrams ordering the latter to report for work were all received on time, drawing him to hastily conclude that Gonzales intentionally disobeyed the orders contained therein.
Maquiling v Phil. Tuberculosis Society, 450 SCRA 465 (2005) It may be also argued that actual or compensatory damages may be recovered in employment termination cases. Actual or compensatory damages are not available as a matter of right to an employee dismissed for just cause but denied statutory due process. The award must be based on clear factual and legal bases and correspond to such pecuniary loss suffered by the employee as duly proven. Evidently, there is less degree of discretion to award actual or compensatory damages.
14.12 Damages Moral/Exemplary Cases Colegio de San Juan Letran-Calamba v Villas, 399 SCRA 550 (2003) Moral damages are recoverable only where the dismissal is attended by bad faith or fraud, or constitutes an act oppressive to labor, or is done in a manner contrary to morals, good customs or public policy. A dismissal may be contrary to law but, by itself alone, it does not necessarily establish bad faith. Asia Pacific Chartering (Phils) v Farolan, 393 SCRA To warrant award of moral damages, it must be shown that the dismissal of the employee was attended to by bad faith, or constituted an act opposite to labor, or was done in a manner contrary to morals, good customs or public policy. Award of moral and exemplary damages for an illegally dismissed employee is proper where the employee had been harassed and arbitrarily terminated by the employer. In determining the amount of moral damages recoverable, however, the business, social and financial position of the offended party and the business or financial position of the offender are taken into account. NIKKI HIPOLITO
Kay Products v CA, 464 SCRA 644 (2005) Indeed, moral damages are recoverable when the dismissal of an employee 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 customs or public policy. Exemplary damages may be awarded if the dismissal is effected in a wanton, oppressive or malevolent manner. Bad faith on the part of petitioners may be gleaned from the fact that they transferred the private respondents to two (2) employment agencies just so they could evade their legal responsibility as employers to accord them the status and benefits of regular employees under the Labor Code. The dismissal, no doubt, was effected in a wanton, oppressive or malevolent manner as the private respondents were deprived of due process. Acuna v CA, 489 SCRA 658 (2006) Moral and exemplary damages are recoverable only where the dismissal of an employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy. The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence, for the law always presumes good faith.
196
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Acesite Corp v NLRC, 449 SCRA 360 (2005) Moral damages are recoverable only where the dismissal of the employees was attended by bad faith or fraud or constituted an act oppressive to labor or was done in a manner contrary to morals, good customs or public policy. Exemplary damages on the other hand may be awarded only if the dismissal was effected in a wanton, oppressive or malevolent manner. Sagum v CA, 459 SCRA 223 (2005) The award of moral and exemplary damages is proper when an illegally dismissed employee had been harassed and arbitrarily terminated by the employer, as when the latter committed an anti-social and oppressive abuse of its right to investigate and dismiss an employee. The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish or serious anxiety as the result of the actuations of the other party. Nominal Damages Cases Central Luzon Conference v CA, 466 SCRA 711 (2005) The violation of the petitioners’ right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances.
SECTION 15. RETIREMENT 15.01 Retirement ART. 287: Retirement. - Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided, however, That an employee’s retirement benefits under any collective bargaining and other agreements shall not be less than those provided therein. In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.
NIKKI HIPOLITO
NOTES
Unless the parties provide for broader inclusions, the term ‘one-half (1/2) month salary’ shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. Retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted from the coverage of this provision. Violation of this provision is hereby declared unlawful and subject to the penal provisions under Article 288 of this Code. Definition Cases Ariola v Philex Mining Corp, 446 SCRA 152 (2005) Retirement results from a voluntary agreement between the employer and the employee where the latter, after reaching a certain age, agrees to sever his employment with the former. Jaculbe v Silliman University, 518 SCRA 445 (2007) Retirement is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age agrees to sever his or her employment with the former. Types Cases Gerlach v Reuters Ltd Phils, 448 SCRA 335 (2005) There are three kinds of retirement schemes. The first type is compulsory and contributory in character. The second type is one set up by agreement between the employer and the employees in collective bargaining agreements or other agreements between them. The third type is one that is voluntarily given by the employer, expressly as in an announced company policy or impliedly as in a failure to contest the employee's claim for retirement benefits. It is this third type of retirement scheme which covers respondent’s Plan. Basis Cases Aquino v NLRC, 206 SCRA 118 (1992) Retirement benefits, where not mandated by law, may be granted by agreement of the employees and their employer or as a voluntary act on the part of the employer. Retirement benefits are intended to help the employee enjoy the remaining years of his life, lessening the burden of worrying for his financial support, and are a form of reward for his loyalty and service to the employer.
197
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
Gamogamo v PNOC Shipping and Transport Corp, 381 SCRA 742 (2002) Retirement results from a voluntary agreement between the employer and the employee whereby the latter after reaching a certain age agrees to sever his employment with the former. Interpretation Cases Lopez v National Steel Corp, 423 SCRA 109 (2004) While it is axiomatic that retirement laws are liberally construed in favor of the persons intended to be benefited, however, such interpretation cannot be made in this case in light of the clear lack of consensual and statutory basis of the grant of retirement benefits to petitioner. Salomon v Assn of International Shipping Lines, 457 SCRA 254 (2005) While it is axiomatic that retirement laws are liberally construed in favor of the persons intended to be benefited, however, such interpretation cannot be made in this case in light of the clear lack of consensual and statutory basis of the grant of retirement benefits to petitioner. Age Cases MAI Phils. Inc v NLRC, 151 SCRA 196 (1988) Yet a third serious mistake, amounting to grave abuse of discretion, too, may be ascribed to the Commission; and that is, its refusal, or neglect to consider the fact-again quite plain from the record and to which MAI had adverted more than once-that the matter of Nolasco's reinstatement had become moot and academic at the time that he filed his second action before the labor arbiters' office against MAI on August 16, 1982; for as of that day, he had already reached the age of 60 years, which is the retirement age fixed by the Labor Code. Rationale Cases Producers Bank of the Phils v NLRC, 298 SCRA 517 (1998) Hence, the retirement of an employee does not, in itself, affect his employment status especially when it involves all rights and benefits due to him, since these must be protected as though there had been no interruption of service. It must be borne in mind that the retirement scheme was part of the employment package and the benefits to be derived therefrom constituted, as it were, a continuing consideration for services rendered, as well as an effective inducement for remaining with the corporation. It is intended to help the employee enjoy the remaining years of his life, releasing him from the burden of worrying for his financial support, and are a form of reward for his loyalty.
NIKKI HIPOLITO
NOTES
Eligibility Cases Reyes v NLRC, 529 SCRA 487 (2007) The article provides for two types of retirement: (a) compulsory and (b) optional. The first takes place at age 65, while the second is primarily determined by the collective bargaining agreement or other employment contract or employer’s retirement plan. In the absence of any provision on optional retirement in a collective bargaining agreement, other employment contract, or employer’s retirement plan, an employee may optionally retire upon reaching the age of 60 years or more, but not beyond 65 years, provided he has served at least five years in the establishment concerned. Brion v South Phil. Union Mission of the Seventh Day Adventist Church, 307 SCRA 497 (1999) Again, it has been held that "pension and retirement plans create a contractual obligation in which the promise to pay benefits is made in consideration of the continued faithful service of the employee for the requisite period. In other words, before a right to retirement benefits or pension vests in an employee, he must have met the stated conditions of eligibility with respect to the nature of employment, age, and length of service. This is a condition precedent to his acquisition of rights thereunder. We rule that the conditions of eligibility for retirement must be met at the time of retirement at which juncture the right to retirement benefits or pension, if the employee is eligible, vests in him. Ground Termination Cases Cainta Catholic School v Cainta Catholic School Employees Union, 489 SCRA 468 (2006) Retirement is a different specie of termination of employment from dismissal for just or authorized causes under Articles 282 and 283 of the Labor Code. While in all three cases, the employee to be terminated may be unwilling to part from service, there are eminently higher standards to be met by the employer validly exercising the prerogative to dismiss for just or authorized causes. In those two instances, it is indispensable that the employer establish the existence of just or authorized causes for dismissal as spelled out in the Labor Code. Retirement, on the other hand, is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter after reaching a certain age agrees and/or consents to sever his employment with the former.
198
LABOR LAW 1 | ATTY. DISINI | 3A 2010-2011
15.02 Accrual of Benefits Accrual Cases Cruz v Phil. Global Communications, Inc, 430 SCRA 185 (2004) Thus, petitioners are entitled only to either the separation pay provided under Article 283 of the Labor Code, as amended, or retirement benefits prescribed by the Retirement Plan, whichever is higher. The employees’ right to payment of retirement benefits and/or separation pay is governed by the Retirement Plan of the parties. Under the Retirement Plan before us, petitioners are not entitled to both separation pay and retirement benefits. Llora Motors Inc v Drilon, 179 SCRA 175 (1989) Examination of Article 287 above shows that entitlement to retirement benefits may accrue either (a) under existing laws or (b) under a collective bargaining agreement or other employment contract. It is at once apparent that Article 287 does not itself purport to impose any obligation upon employers to set up a retirement scheme for their employees over and above that already established under existing laws. In other words, Article 287 recognizes that existing laws already provide for a scheme by which retirement benefits may be earned or accrue in favor of employees, as part of a broader social security system that provides not only for retirement benefits but also death and funeral benefits, permanent disability benefits, sickness benefits and maternity leave benefits. As is commonplace knowledge, the Social Security Act provides for retirement benefits which essentially consist of the right to receive a monthly pension for the rest of the covered employee's life provided that: (1) such employee had paid at least one hundred twenty (120) monthly contributions prior to retirement; and (2) has reached the age of sixty (60) years (if his salary is less than P300.00 a month) or 65 years. The retirement scheme here 'established is compulsory and contributory in character on the part of both the employer and the employee, backed up by criminal sanctions and administered by a large and elaborate bureaucracy.
NOTES
15.04 Benefits and Gratuity Cases Sta. Catalina College v NLRC, 416 SCRA 233 (2004) Gratuity pay x x x is paid to the beneficiary for the past services or favor rendered purely out of the generosity of the giver or grantor. Gratuity, therefore, is not intended to pay a worker for actual services rendered or for actual performance. It is a money benefit or bounty given to the worker, the purpose of which is to reward employees who have rendered satisfactory service to the company.
FOR SOCIAL LEGISLATION, PLEASE REFER TO NOTES GIVEN BY SIR.
15.03 Private Plan Employer Obligation Cases GVM Security and Protective Agency v NLRC, 224 SCRA 734 (1993) As stressed in Llora Motors, Inc., Article 287 does not in itself purport to impose any obligation upon employers to set up a retirement scheme for their employees over and above that already established under existing laws, like the Social Security Act.
NIKKI HIPOLITO
199
View more...
Comments
