Labor Digests - Bes Corp. 105-128

13th MONTH PAY 105 . BROKENSHIRE MEMORIAL HOSPITAL V. NLRC ( G.R. No. L-69741 August 19, 1986) Are employees in a private enterprise entitled to the so called "13th month pay" prescribed by PD 851 "on top of bonuses" already being given by the employer prior to the decree's effectivity on December 16, 1975? Ang hospital nagbibigay ng Christmas bonus, pero ni require sila pursuant to th th PD 851 (13 month pay law) to give 13 month pay on top of the Christmas bonus that they are giving. However, the hospital stopped giving Christmas bonus after 1979 because of poor financial condition. (PD 851 was enacted in 12-16-1975) HELD: Employers already paying their employees a 13th month pay or its equivalent. . . . (Section 2, PD 851) An employer may not be obliged to assume a ―DOUBLE BURDEN‖ of paying the 13th month pay in addition to bonuses or other pecuniary benefits given by way of fringe benefits aside from the employees’ basic salaries or wages. ―In case where an employer already pays 13th month pay or its equivalent prior to the mandate of PD 851, where an employer pays less than one twelfth of the employees’ basic salary, all that said employer is required to do under the law is to pay the difference.‖

The drivers and conductors were entitled to the basic minimum pay mandated by law in case the commissions they earned are less than that their basic minimums for 8 hours work. -

Commission form part of their wage or salary- calculated as a percentage of amount of his transactions or on the profit of the principal Commission as a direct remuneration for services rendered

107.SEVILLA TRADING COMPANY v. AVA SEMANA In the computation of 13th month pay, Sevilla have included the OT, holiday pay, night differential, bereavement leave, union leave, maternity/paternity leave, vacation leave, sick leave, and cash conversion of vacation and sick leave. Eventually the company asserted that the aforementioned inclusions should’ve been excluded, and was accidentally included, for the last 2 years, because of an error in computing payroll. The company asserted that PD 851 defines ―basic salary‖ as all the remunerations or earnings paid by the ER to an EE for services rendered but does not include COLA, profit-sharing payments, and allowances and monetary benefits. The EEs asserted that it had already matured into a right hence this case. (EE won)

PANALO ANG OSPITAL!

DOCTRINE: Basic salary shall include all the remunerations or earnings paid by the ER to an EE for services rendered but does not include COLA, profitsharing payments, and allowances and monetary benefits. (The said benefits shouldn’t have been included in the 13th pay in the first place, but having been included for the past 2 years, it has already matured into a right and cannot be withdrawn by virtue of Art 100 of the LC)

106. PHIL. AGRICULTURAL v. NLRC (GR No. 107994, August 14, 1995)

108. HONDA PHILS., INC., v. SAMAHAN NG MALAYANG MANGGAGAWA SA HONDA (G.R. No. 145561, June 15, 2005)

FACTS: Union, as representatives of bus drivers and conductors, filed a complaint for nonpayment of 13th month pay against Vallacar Transit. Vallacar contended that the drivers and conductors were compensated on a ―purely commission‖ basis and is not entitled to the benefit ISSUE: Whether or not the bus drivers and conductors are entitled to the 13 month pay

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HELD:13th month pay is calculated as 1/12 of the basic salary per year. Commission forms part of basic pay.

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Honda granted 14 month pay computation same as 13 month pay computation via CBA. Then, union wanted to renegotiate for the 4th and 5th years but ended in a deadlock. Nag strike ang mga kupal. 31 days sila nag strike until they were ordered to return to work under the same terms prior to the strike. So, ngayon nag issue ang Honda ng memo na ang bagong th th computation ng 13 and 14 month pay ay PRO RATA. Meaning, yung 31 days na nag strike ang mga kupal di isasali sa ―worked‖ days plus deductions chorba. (so, 11/12 ang base salary for the computation) HELD:PD 851 – 13th Month Pay Law, enacted on 12-16-1975

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The minimum 13 month pay required by law shall not be less than one-twelfth (1/12) of the total basic salary earned by an employee within a calendar year. The BASIC SALARY OF AN EMPLOYEE FOR THE PURPOSE OF TH COMPUTING THE 13 MONTH PAY shall include all remunerations or earnings paid by his employer for services rendered but 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 unused vacation and sick leave credits, overtime premium, night differential and holiday pay, and cost-of-living allowances.

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JPL provided salaries which were over and above minimum wage as in place of the benefits. The difference between the minimum wage and the actual salary received by the respondents cannot be deemed as their 13 month pay and service incentive leave pay as such difference is not equivalent to or of the same import as the said benefits contemplated by law. th st Computation of the 13 month pay from the 1 day of employment to the last day the employees worker for JPL o No illegal dismissal, they employed themselves to another company

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The computation of the 13 month pay should be based on the length of service and not on the actual wage earned by the worker. In the present case, there being no gap in the service of the workers during the th calendar year in question, the computation of the 13 month pay should not be pro-rated but should be given in full. th

To allow the pro-ration of the 13 month pay in this case is to undermine the wisdom behind the law and the mandate that the workingmans welfare should be the primordial and paramount consideration. What is more, the factual milieu of this case is such that to rule otherwise inevitably results to dissuasion, if not a deterrent, for workers from the free exercise of their constitutional rights to self-organization and to strike in accordance with law. (‘Di pa daw kasi nag ripen into an established th th company policy ang pro-rating ng 13 and 14 month pay. PANALO ANG MGA KUPAL.

110. Esmalin v NLRC Felix Esmalin has been employed by CARE Philippines (non-profit organization) as warehouseman for 6 years. There was an issue with regard to the stocks of soy flour wherein he allegedly labeled the goods that are still fit for human consumption as otherwise. He was given a letter informing him that he is under preventive suspension and was relieved effective immediately. Felix filed for illegal dismissal. According to the courts, the letter sent indicated that Felix was being dismissed immediately without a formal investigation, hence this case. (EE won) DOCTRINE:No employer may dismiss an EE without seeking clearance from Minister of Labor. Dismissal without clearance shall be presumed termination without cause or arbitrary dismissal. The dismissal of an EE must be done with just cause and without abuse of discretion. It must not be done in an arbitrary and despotic manner.

TERMINATION OF EMPLOYMENT GENERAL 109. JPL Marketing v. NLRC (GR No. 151966, July 8, 2005) FACTS: 3 employees of JPL filed a complaint for illegal dismissal and nonpayment of 13 month pay, service incentive leave pay, and payment for moral damages. LA dismissed the complaint, NLRC affirmed but entitled the employees to the benefits HELD: Employees were entitled to 13 month pay and service incentive leave pay – YES. Said benefits are mandated by law and should be given to employees as a matter of right.

111.NAVARRO III v. DAMASCO Navarro bumisita kay Baylas sa girl’s dormitory within company’s premises. Tinaguan ni Baylas si Navarro, upon finding out na nagtago si Baylas maylabs, hinabol at hinila nya si Baylas pabagsak sa floor. Then, XoXo hugs and kisses nangyari. Navarro was put to preventive suspension. The investigation resulted into a recommendation to impose maximum penalty to Navarro for violating par. 3 of Code of Behavior. HELD: The acts of petitioner involved a violation of the Code of Employee Discipline, particularly the provision penalizing the immoral conduct of employees. The harassment of an employee by a co-employee within the company premises EVEN AFTER OFFICE HOURS IS A WORK-RELATED MATTER

considering that the peace of the company is thereby affected. The Code of Employee Discipline is very clear that immoral conduct "within the company premises regardless of whether or not [it is] committed during working time" is punishable. TALO ANG MANYAK.

GROUNDS FOR TERMINATION – JUST CAUSES SERIOUS MISCONDUCT/ GROSS INSUBORDINATION 112. Manebo v. NLRC (GR No. 107721 January 10, 1994) FACTS: Manebo was terminated from employment as bus comptroller from Tritran Bus Co. for alleged serious misconduct committed against the firm’s operation manager and company president. He failed to follow instructions to see the company president at his Caloocan office due to the Grievance Committee hearing being held the same day. HELD: Manebo’s dismissal not justified. ART. 282 Termination of the Employer

113. Aguilar v NLRC Estrellita Aguilar works for the restaurant of Wack Wack Golf and Country Club. Because the restaurant was suffering losses, the club imposed a patronage fee of Php2000 per month wherein all members must consume at least Php2000 worth of food from the restaurant every month, otherwise the said amount will still be charged to their account. On several occasions, Aguilar consumed food from the restaurant and charged them against the patronage fees of club members who do not consume their patronage fee. She explained that she did not realize that the club rules for members’ guests/visitors also apply to EEs (Club rule: Non-members, guests or visitors cannot sign food chits for and in behalf of members). Aguilar was investigated but still continued the misconduct, so she was terminated. She filed for illegal dismissal, hence this case. (ER won) DOCTRINE:Art 282 (a) of the LC states that am ER may terminate employment when there is a serious misconduct or willful disobedience by the EE of the lawful orders of his ER. Willful disobedience has two requisites: (1) it must have been willful and intentional characterized by wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the EE, and must pertain to the duties, which he had been engaged to discharge.

Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection of his work. 2 requisites in determining willful disobedience: -

Conduct must have been willful or intentional – characterized by a wrongful and perverse attitude Order must be reasonable and lawful, sufficiently known by the employee and must pertain to the duties which the employee has been engaged to discharge

The directive of the petitioner to go to Caloocan city to see the company president is neither a reasonable order nor one connected to his duties. Even willful disobedience thereof cannot be a valid ground for dismissal -

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the purpose of the directive is to extract a whimsical and oppressive condition for the finality of his supposed reinstatement (i.e. to render an apology for his past misdeeds to the president) Unreasonable – difficult to comply since petitioner was attending a conference 50 km away from the office

ABANDONMENT 114. JARDINE DAVIES, INC v. NRLC Salvador Salutin works for Jardine Davies Inc. and was declared having abandoned work considering his continuous absences of more than 3 weeks. NLRC declared Salutin as NOT having abandoned his work by alleged failure to report to work during the pendency of JDI’s appeal before the NLRC. (BTW, LA decision was in favor of Salutin – case: illegal dismissal plus reinstatement) HELD: For abandonment to constitute a valid cause for termination of employment there must be a deliberate unjustified refusal of the employee to resume his employment. This refusal must be clearly shown. Mere absence is not sufficient; it must be accompanied by overt acts pointing to the fact that the employee simply does not want to work anymore.

Abandonment of position is a matter of intention expressed in clearly certain and unequivocal acts. In this instance, however, certain uncontroverted facts show just exactly the opposite. Hence, Salutin did report, as directed, on 24 September 1991, but that he could not stay long because he was ailing at that time; he, although perhaps belatedly made, did seek medical consultation on 7 November 1991, at the Corazon Locsin Montelibano Memorial Regional Hospital, for "peptic ulcer"; and on 11 December 1991, he did, in fact, manifest his desire to assume his work with the petitioner.

115. Jackson Bldg. v. NLRC (GR No, 111515, July 14, 1995) FACTS: Gumagda, a janitor, filed a 45-day leave of absence for his appendectomy. After his leave, Jackson Bldg. refused to accept him contending that he has abandoned work for not submitting a medical report. He then filed a complaint for illegal dismissal, LA and NLRC ruled in his favor. HELD: Private respondent did not abandoned his work.For abandonment to be a valid ground for termination, 2 requisites must be present: 1.) The intention to abandon work 2.) Overt act from which it may be inferred that the employee has no more intentions to resume his work Albeit exceeded from the number of days authorized, Gumagda reported back after 50 days as to ensure his recovery as advised by his doctor. It clearly shows that he is ready to assume his work considering he has fullyrecovered from his operation.

116.Arc-Men Food v NLRC Fabian Alcomendras was employed as a dump truck driver. His job is to haul banana peelings; also, during days where there is no company operation he would do some other work. However, after only two months (December 1, 1989 to Feb 25, 1990), the company had to temporarily lay-off workers because the company had to be temporarily shut down. Eventually he was asked to report back to work but he refused, the ER construed this as his abandonment of work, but the EE filed for illegal dismissal. (ER won) DOCTRINE: Section 12, Rule 1 of Book VI of the Omnibus rules Implementing the LC states that EE-ER relationship shall be deemed suspended in case of suspension of operation of business for a period of not exceeding 6 months. (In this case it was held that the ER never dismissed the EE as the ER even asked the EE to report back to work, to which he

declined. The EE declining to report back to work was construed as abandonment by the court because the ER cannot compel the EE to work.)

LOSS OF CONFIDENCE/ BREACH OF TRUST 117. PCIB v. NLRC G.R. No. 114920 August 23, 1995 Si Maturan ay isang teller na nag incur ng P10, 000 cash shortage and failed to return a cash withdrawal of P 8, 000 to a client. PCIB via loss of confidence/breach of trust dismissed Maturan. Maturan filed for illegal dismissal. LA favored Maturan. NLRC favored Maturan but modified it by removing backwages chorba. So Supreme Court na mga bes. HELD: Petitioner cites the ruling in Allied Banking Corporation vs. Castro, et al. which held that "(a) bank teller is entrusted with considerable sums of money. The teller as trustee is expected to possess a high degree of fidelity and trust. The repeated and numerous infractions committed by the private respondents in handling the moneys entrusted to them as tellers cannot be considered minor. Taking into account the nature of a teller's job, the infractions are too numerous to be ignored or treated lightly. The repeated acts of misconduct and willful breach of trust forfeited the respondent's right to security of tenure. Court said - "(i)n (t)ellering, (r)egardless of how long one has been in the trade, and how careful one is, there is no guarantee that one can never incur cash shortage or overage. No teller for that matter can testify that in his stint as such, everyday his actual cash on hand always tallies with the figure appearing in the teller's validating machine tape as the 'should be cash on hand'. Cash shortages and overages are but ordinary and normal banking activities." As a matter of fact, it is not disputed that there were other shortages or overages incurred by the other tellers in petitioner's General Santos City branch at about the same time that this particular infraction of private respondent occurred. (Exceptions – Gravity and Amount involved) To be a valid ground for dismissal, loss of trust and confidence must be based on a willful breach of trust. And, as realistically stressed by the Solicitor General, unless based on a ground provided by law and supported by substantial evidence, dismissal will be disallowed, for what is at stake is not only the employee's position, but also his means of livelihood. Considering that private respondent was acting in good faith, his dismissal would run counter to such established doctrinal rulings. PANALO PO ANG TELLER.

118. Concorde Hotel v. CA (GR No. 144089, August 9, 2001) FACTS: Roberto Parado, an assistant cook of Concorde Hotel was dismissed from work due to his alleged involvement on the pilferage on hotel supplies. He was not primarily suspected for the crime, but was later on added on the list of suspected due to his refusal to stand as witness against his coworkers. HELD:Parado’s termination is not valid. For an employee’s termination to be valid, 2 requisites must be met: 1.) Employee is afforded due process 2.) There is valid cause of dismissal  Burden of proof rests on the employer Art. 282 of the Labor Code states that an employer may terminate the services of the employee for loss of trust and confidence Guidelines for the doctrine of loss of trust and confidence: 1.) Loss of confidence not simulated 2.) It is not used as a subterfuge for causes which are improper, illegal or unjustified 3.) Should not be arbitrarily asserted in face of overwhelming evidence to the contrary 4.) Must be genuine, not a mere afterthought While an employer is at liberty to dismiss as employee for loss of trust and confidence, he cannot use the same to feign what would otherwise be an illegal dismissal. Loss of confidence only applied to cases involving employees who occupy positions of trust and confidence. -

However, evidence must be clearly established for liability to be accorded

Parado was not accorded with due process - Failure of the hotel to furnish 2 notice of his dismissal, a condition sine qua non

Petitioner started as a clinical instructor in the college of nursing in Northwestern College. She was eventually appointed Dean. She was then promoted to VP for admin while still serving as dean of the college of nursing. She was gradually demoted and her salary was also gradually decreased. The circumstance happened because the board members found out that the college was financially distressed and unable to meet obligations to the bank; hence the administrative restructuring. It was also found that she collected Php25 from every student in the college, did not liquidate other sums of money, and drew salaries for teaching event though she did not have any teaching load. She was terminated and eventually filed for illegal dismissal; hence this case (ER won but did not observe due process) DOCTRINE: Rules of dismissal of managerial EEs are different from those governing ordinary EEs for it would be unjust and equitable to compel an ER to continue with the employment who occupies a managerial and sensitive position despite loss of trust and confidence. Loss of trust and confidence is a valid ground for dismissing an EE and does not require proof beyond reasonable doubt. Sufficient basis for the loss of trust and confidence is sufficient. (However, the ER did not accord notice and hearing prior to the termination, hence they were asked to pay an amount for non-observance of due process)

120.ETCUBAN, JR. v. SULPICIO LINES, INC. (G.R. No. 148410, January 17, 2005) Etcuban is a Chief Purser, who was dismissed by reason of loss of trust/breach of confidence. (There was tampering of unissued tickets) He argues that the penalty was too harsh for an unproved and petty infraction. However, his employer argues that it acted well within its rights in terminating Etcuban after the investigation revealed that the latter failed to live up to the trust and confidence expected of him as Chief Purser. HELD: The office of a purser involves a high degree of trust and confidence. In cases of dismissal for loss of trust and confidence, it is not required that there is proof beyond reasonable doubt. It is sufficient that there is sufficient basis for loss of trust and confidence. APPLICATION of the DOCTRINE of loss of trust and confidence:

119.Jean Aurelio v NLRC

For rank and file employees – loss of trust and confidence as ground for valid dismissal requires proof of involvement in the alleged events in question, and that mere uncorroborated assertions and accusations by the employer will not be sufficient.

For Managerial employees – the mere existence of a basis for believing that such employee has breached the trust of his employer would suffice for his dismissal.

HABITUAL ABSENCES/ TARDINESS 121. Worldwide Papermills v. NLRC (GR No. 113081, May 12, 1995) FACTS: Edwin Sabuya, a packer for Worldwide Papermills, incurred numerous absences from 1986-1989. He was given warnings and was sanctioned with suspension, but to no avail. Petitioner terminated his employment, Sabuya filed for illegal dismissal. ISSUE: Is Sabuya’s termination justified?

regard to remittance of church tithes and offerings collected by his wife to which the head of SDA authorized. Because of the malicious allegations and accusations, in the meeting that was called, a commotion transpired inside one of their offices where Pastor Dionisio attempted to overturn a table, scattered books, and threw a phone. No one was physically hurt in the incident and there was no intent or attempt to do so. Pastor Austria eventually received a letter for dismissal due to lost of trust and confidence. He filed for illegal dismissal, hence this case. (EE won) DOCTRINE: Art 282 (c) of the LC states that the 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. It must rest on substantial grounds and not on the ER’s arbitrariness, whims, caprices or suspicion. For misconduct to be serious, it must be of such grave and aggravated character and not merely trivial or unimportant. (Also, the misconduct for the commotion was considered a non-serious one for the was no intention to hurt and no physical assault transpired)

HELD: YES. Art. 282 of the Labor Code provide the grounds for which an employer may validly dismiss an employee, among which is gross and habitual neglect of employee of his duties.

123.FELIX v. ENERTECH SYSTEMS INDUSTRIES, INC (G.R. No. 142007, March 28, 2001)

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.

One of the responsibilities of an employee is to observe the proper decorum within the employer’s work premises. He must follow company rules and regulations. Failure to observe company rules and regulations constitutes a ground for suspension or dismissal from employment.

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There may be cases where the circumstances warrant favoring labor over the interests of the management but never should the scales be so tilted if the result is an injustice to the employer. Justicia nemini neganda est (Justice is to be denied to none.)

On violation of Sabuya’s right to procedural due process – Right was clearly violated. Petitioner was indemnified to pay the amount of P5,000 to private respondent and separation pay.

FRAUD/ SERIOUS MISCONDUCT

The elements of a valid dismissal due to serious misconduct are as follows: 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. 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;

122.Austria V NLRC

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

Pastor Dionisio Austria has been working for the Seventh-Day Adventist for 28 years. He started as a literature evangelist and worked his way up the ladder and eventually became a pastor. One day, there was an issue with

FALSIFYING TIME CARDS OR ANY OTHER TIMEKEEPING RECORDS OR DRAWING SALARY/ALLOWANCE BY VIRTUE OF FALSIFIED TIME CARDS – constitutes serious misconduct.

HELD:Termination of an employee's services because of redundancy is governed by Article 283 of the Labor Code which provides as follows:

ANALOGOUS CASES 124. PAL v. NLRC (GR No. L-62961, September 2, 1983) FACTS: Salvador Gempis, a pilot of PAL, was charged with serious misconduct and violating the liquor ban and company policies.He allegedly forced 2 other lower-ranking pilots with initial assignments the following day to drink liquor. PAL filed a clearance for termination ISSUE: W/N Gempis is dismissed for a just and valid cause HELD: YES.The nature of employment of herein private respondent necessitates that he should not violate the liquor ban as provided for in the Basic Operations Manual in order to protect not only the interest of the company but the public as well. Private respondent is a risk and liability rather than an asset to petitioner PAL. -

Extraordinary measures and diligence should be exercised by it for the safety of its passengers and their belongings. A pilot must be sober all the time for he may be called upon to fly a plane even before his regular scheduled hours, otherwise so many lives will be in danger if he is drunk.

It would be unjust for an employer like herein petitioner PAL to be compelled to continue with the employment of a person whose continuance in the service is obviously inimical to its interests.

125. JPL MARKETING v. NLRC (see previous entry)

REDUNDANCY 126. ALMODIEL v. NLRC Almodiel is a CPA, and was employed by Raytheon Phils as Cost accounting manager. Nagkaroon ng installation ng cost accounting system na nag echapwera kay Almodiel – he now only submits periodical reports. So, in the end, nangyare ang kinatatakutan ni bes, he was informed that his position is going to be abolished on the ground of redundancy. Syempre lumaban si bes. LA favored Almodiel. NLRC reversed. So, ngayon Supreme Court na mga bes.

Art. 283. Closure of establishment and reduction of personnel. — The employer may also terminate the employment of any employee due to 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 Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to installation of laborsaving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent 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 closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to at least 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. Court said - 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. The characterization of an employee's services as no longer necessary or sustainable, and therefore, properly terminable, was an exercise of business judgment on the part of the employer. The wisdom or soundness of such characterization or decision was not subject to discretionary review on the part of the Labor Arbiter nor of the NLRC so long, of course, as violation of law or merely arbitrary and malicious action is not shown. An employer has no legal obligation to keep more employees than are NECESSARY for the operation of its business.

127. ASIA WORLD PUBLISHING HOUSE INC. v. OPLE (GR NO. L-56398, July 23, 1987) FACTS: Concepcion Joaquin was dismissed from her position as Vice President for marketing due to continued losses of the company. Both regional director and minister of Department of labor ruled in her favor, arguing that there is no fair and reasonable standards and substantial justification for her dismissal and should therefore be reinstated. Held: Severance pay equivalent of 12 months’ salary was ordered in lieu of reinstatement. As regards the order of reinstatement, we have to take into account that antagonism between the petitioner and the private

respondent has been brought about by the filing of this case plus the fact that a new employee had been hired to take over the place of the respondent. There is no showing that an equivalent position is available to Ms. Joaquin. All of these militate against the propriety of reinstating the respondent. If the respondent had been a laborer, clerk, or other rank and file employee, there would be no problem in ordering her reinstatement with facility. But she was Vice President for Marketing of Asiaworld. An officer in such a key position can work effectively only if she enjoys the full trust and confidence of top management. *side note: There must be fair and reasonable criteria to be used in selecting employees to be dismissed, such as: (a) less preferred status (e.g. temporary employee); (b) efficiency rating, and (c) seniority. Petitioner denied the fact that respondent was performing her job satisfactorily.

128.Sebuguero V NLRC

38 EEs were given temporary lay-offs by the GTI Company, who manufactures sports wear, due to lack of work and heavy losses due to the cancellation of orders from abroad. The EEs filed for illegal dismissal to which the ER denied that it was its prerogative to lay-off it’s EEs not exceeding 6 months. 22 EEs eventually accepted separation pay, while the other 12 pursued with the case, hence this case. (ER won) DOCTRINE: Art 286 of the LC states that a suspension of a business not exceeding 6 months shall not terminate employment. Redundancy exists where the services on an EE are in excess of what is reasonably demanded by the 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 over hiring of workers, decreased volume of business or dropping of a particular product line or service.