Labor_Velasco_Cases.pdf

Dean’s Circle 2016 University of Santo Tomas Digested by: DC 2016 Members Editors: Tricia Lacuesta Lorenzo Gayya Cristopher Reyes Macky Siazon Janine Arenas Ninna Bonsol Lloyd Javier

Supreme Court decisions penned by Associate Justice Presbitero J. Velasco, Jr.

Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Table of Contents Illegal Recruitment ................................................................................................................................................................ 2 Regulatory and Visitorial Powers of the DOLE Secretary........................................................................................... 3 Labor Standards .................................................................................................................................................................... 4 Wages................................................................................................................................................................................ 4 Minimum Wage...................................................................................................................................................... 5 Non-diminution of Benefits.............................................................................................................................................. 6 Separation Pay .................................................................................................................................................................. 7 Retirement Pay ................................................................................................................................................................. 8 Employer-employee Relationship.................................................................................................................................... 8 Four-fold Test ....................................................................................................................................................... 10 Project-employment ...................................................................................................................................................... 11 Job Contracting ............................................................................................................................................................... 12 Effects of Labor-Only Contracting ....................................................................................................................... 12 Termination of Employment .......................................................................................................................................... 14 Just Causes............................................................................................................................................................ 14 Authorized Causes................................................................................................................................................ 19 Twin-Notice Requirement ................................................................................................................................... 22 Hearing: Meaning of Opportunity to be Heard ................................................................................... 23 Reinstatement ...................................................................................................................................................... 28 Preventive Suspension ......................................................................................................................................... 29 Constructive Dismissal ......................................................................................................................................... 30 Certification Election ...................................................................................................................................................... 31 Union Security Clauses................................................................................................................................................... 32 Unfair Labor Practice of Employers ............................................................................................................................... 33 Illegal Strike..................................................................................................................................................................... 34 Liability of Ordinary Workers............................................................................................................................... 37 Procedure and Jurisdiction ............................................................................................................................................ 38 Appeal to the NLRC .............................................................................................................................................. 39 Jurisdiction of NLRC ............................................................................................................................................. 40 Remedies .............................................................................................................................................................. 41 Original and Appellate Jurisdiction of Med Arbiters .......................................................................................... 42 Social Legislation............................................................................................................................................................. 45 SSS Law ................................................................................................................................................................. 45 Employees Compensation ................................................................................................................................... 46

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016

Recruitment and Placement Illegal Recruitment (Sec. 5, R.A. No. 10022) PEOPLE OF THE PHILIPPINES v. GLORIA BARTOLOME G.R. No. 129486, July 4, 2008, Velasco, Jr., J.

Illegal recruitment is committed when two (2) elements concur: First, the offender does not have the required license or authority to engage in the recruitment and placement of workers. Second, the offender undertook (a) recruitment and placement activity defined under Article 13(b) of the Labor Code or (b) any prohibited practice under Art. 34 of the same code. Illegal recruitment is qualified into large scale, when three or more persons, individually or as group, are victimized. Facts: Gloria Bartolome, without a license for the placement of workers, impressed upon four (4) of her childhood acquaintances that she could send them to Bahrain for overseas employment. For her promise of employment, Gloria asked a fee from all of them to cover all expenses. Upon receiving payment, Gloria sent a photocopied plane ticket to each person. Gloria vanished after her promises did not materialize. The POEA initiated the complaints against Gloria, and the latter was convicted of illegal recruitment in large scale. Issue: Whether Gloria is guilty of illegal recruitment in large scale Ruling: Yes. Gloria lacked the required license as shown by the fact that the POEA no less initiated the filing of the complaints. Gloria also engaged in recruitment activities per Art. 13(b) of the Labor Code when she promised employment for a fee to all four (4) persons. Finally, she recruited more than three (3) persons. Hence, Gloria is guilty of illegal recruitment in large scale.

PEOPLE OF THE PHILIPPINES v. RODOLFO GALLO y GADOT, FIDES PACARDO y JUNGCO and PILAR MANTA DUNGO G.R. No. 187730, June 29, 2010, Velasco, Jr., J.

The elements of syndicated illegal recruitment are: (a) the offender undertakes any activity within the meaning of recruitment and placement as defined under the Labor Code; (b) he has no valid l icense or authority to lawfully engage in recruitment and placement; and (c) the illegal recruitment is committed by a group of three or more persons conspiring or confederating with one another. Facts: The accused were convicted for the crime of syndicated illegal recruitment and estafa based on the complaint of Dela Caza. After having been assured that MPM Agency had already sent many workers abroad and that there are job placements for the complainant and other applicants in Korea, Dela Caza was convinced to part with her money in the amount of P45,000 as placement fee. After a few months of waiting tobe deployed, Dela Caza and the other applicants took action. Thereafter, the accused were arrested.Rodolfo Gallo asserted that he was an errand boy, not an employee of the agency; thus, he could not be held criminally liable.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Issue: Whether accused is guilty of syndicated illegal recruitment Held: Yes. Testimonial evidence presented by the prosecution shows that, in consideration of a promise of foreign employment, accused-appellant received the amount of PHP45,000.00 from Dela Caza. When accusedappellant made misrepresentations concerning the agency’s purported power and authority to recruit for overseas employment and collected money in the guise of placement fees, the former clearly committed illegal recruitment. Accused-appellant cannot argue that the trial court erred in finding that he was indeed an employee of the recruitment agency. His active participation in the illegal recruitment is unmistakable. The fact that he was the one who issued and signed the official receipt belies his profession of innocence.

Regulatory and Visitorial Powers of the DOLE Secretary PEOPLE’S BROADCASTING SERVICE (BOMBO RADYO PHILS., INC.) v. THE SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII, AND JANDELEON JUEZAN G.R. No. 179652, March 6, 2012, Velasco, Jr., J.

The DOLE can make a prima facie determination of the existence of EER, to the exclusion of the NLRC, for purposes of determining if it has jurisdiction over a complaint brought before it. Facts: Jandeleon filed a complaint against Bombo Radyo with the DOLE Regional Office for delayed payment of wages, and non-payment of other benefits. Bombo Radyo disputed the existence of an employer-employee relationship (EER). After summary investigation, the Regional Director, as affirmed by the Acting Secretary of Labor and Employment, found the presence of EER and ruled for Jandeleon. The SC srcinally ruled that the DOLE Secretary has no jurisdiction to determine the presence of EER. The Public Attorney’s Office and the DOLE moved to clarify the srcinal decision as to the extent of the visitorial and enforcement powers of the DOLE. Issue: Whether the DOLE Secretary may determine the existence of an EER to the exclusion of the NLRC Ruling: Yes. (1) The law did not say that the DOLE must first seek the NLRC’s determination of the existence of an EER, or that should the existence of the EER be disputed, the DOLE should refer the matter to the NLRC. (2) The DOLE can use the same test (i.e. the four-fold test) used by the NLRC to determine the existence of EER. (3) The expanded visitorial and enforcement power of the DOLE granted by RA 7730 would be rendered nugatory if the alleged employer could, by the simple expedient of disputing the EER, force the referral of the matter to the NLRC. As to the extent of the findings of EER by the DOLE Secretary, a prima facie determination of the existence of EER is sufficient to determine if the DOLE has jurisdiction over the case. The following are guidelines to determine if the DOLE has jurisdiction should a complaint be brought before the DOLE to give effect to labor standards provision of the Labor Code or other labor legislation: (1)

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The DOLE shall make a prima facie determination of the existence of EER, to the exclusion of the NLRC; (2) If the DOLE finds that there is no EER, the jurisdiction is properly with the NLRC; (3) If the complaint before the DOLE is accompanied by a claim for reinstatement, the jurisdiction belongs with the Labor Arbiter under Art. 217 (3); and (4) The findings of the DOLE may still be questioned through a petition for certiorari under Rule 65 of the Rules of Court. If the complaint is filed with the NLRC while there is still an existing employeremployee relationship, the jurisdiction is properly with the DOLE.

Labor Standards Wages ASSOCIATED LABOR UNIONS(ALU) and DIVINE WORD UNIVERSITY EMPLOYEES UNION-ALU(DWUEUALU) v. CA, THE ROMAN CATHOLIC ARCHBISHOP OF PALO, LEYTE (RCAP) and DIVINE WORD UNIVERSITY OF TACLOBAN (DWUT) G.R. No. 156882, October 31, 2008, Velasco, Jr., J.

Art. 110 of the Labor Code applies only to cases of bankruptcy and liquidation. Likewise, the concurrence and preference of credits properly come into play only in cases of insolvency. Facts: RCAP is a corporation sole which sold toSocietas Verbum Dei (SVD) the subject 13 parcels of land, the last 4 of which were untitled when the sale was concluded. While the conveying document was not notarized, the SVD was able to secure the corresponding TCTs over the subject lots, but the deed conditions, restrictions, and reversionary right of the RCAP were not annotated. Due to labor unrest, DWUT, run by the SVD, and the Union engaged in a protracted legal battle. RCAP filed a petition for annotation. DWUT issued notices to union’s members of the closing of the university and consider themselves dismissed. Prompted by the closure of DWUT and the resulting termination of its members’ services, the Union filed a complaint. The Union alleged in its complaint that the sale of the subject properties over which the DWUT is located was incomplete. What is more, the RCAP did not, despite the sale, sever its employment relations with DWUT which, thus, rendered the RCAP solidarily liable with DWUT for the payment of the benefits of the Union members. RTC dismissed the petition. The parties entered in a Memorandum of Agreement (MOA). CA reversed and granted the petition to annotate.

Issue: Whether Article 110 of the Labor Code in relation to the Civil Code provisions on concurrence and preference of credits apply in the instant case Ruling: No. The judgment lien over the subject properties is really non-existent as it has not been shown that a levy on execution has been imposed over the subject properties. We agree with the RCAP that a judgment lien over the subject properties has not legally attached and that Art. 110 of the LC, in relation to Arts. 2242, 2243, and 2244 of the Civil Code on concurrence and preference of credits, does not cover the subject properties. Art. 110 of the LC applies only to cases of bankruptcy and liquidation. Likewise, the abovementioned articles of the Civil Code on concurrence and preference of credits properly come into play only in cases of insolvency. Since there is no bankruptcy or insolvency proceeding to speak of, much less a liquidation of the assets of DWUT, the Union cannot look to said statutory provisions for support.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Moreover, we note the utter lack of showing that DWUT has no other assets to answer its obligations. DWUT may have liquidity problems hampering its ability to meet its judicially-imposed obligations. The school, however, appears to have other properties it can and in fact did use to settle its obligations as shown in the MOA. A scrutiny of the MOA readily shows that the subject properties were not included in the assets or properties earmarked to settle DWUT’s obligations.

Minimum Wage NASIPIT INTEGRATED ARRASTRE AND STEVEDORING SERVICES, INC. (NIASSI) v. NASIPIT EMPLOYEES LABOR UNION (NELU)-ALU-TUCP G.R. No. 162411 June 30, 2008 Velasco, Jr., J.

Expressio unius est exclusio alterius. The express mention of one person, thing, act, or consequence excludes all others. The beneficent, operative provision of WO RXIII-02 is specific enough to cover only minimum wage earners. Necessarily excluded are those receiving rates above the prescribed minimum wage. Facts: Wage Board of Caraga Region in Northeastern Mindanao issued Wage Order No. (WO) RXIII-02 which granted an additional PhP12 per day cost of living allowance to the minimum wage earners in that region. Owing allegedly to NIASSI’s failure to implement the wage order, the Union filed a complaint before the DOLE for inspection and the enforcement of WO RXIII-02. But the inspection team stated that WO RXIII02 was not applicable to NIASSI’s employees since they were already receiving a wage rate higher than the prescribed minimum wage. ’s prayer for the Voluntary Arbitrator Jesus G. Chavez rendered a decision granting the Union implementation of WO RXIII-02 on the rationale that WO RXIII-02 did not specifically prohibit the grant of wage increase to employees earning above the minimum wage. On the contrary, Chavez said, the wage order specifically enumerated those who are outside its coverage, but did not include in the enumeration those earning above the minimum wage. On appeal, CA affirmed. Issue: ’s employees who, at the time of Whether the WO RXIII-02 may be made to apply and cover Nasipit the issuance and effectivity of the wage order, were receiving a wage higher than the prevailing minimum wage Ruling: No. WO RXIII-02 and its IRR provide that only minimum wage earners are entitled to the wage increase. The only situation when employees receiving a wage rate higher than that prescribed by the WO RXIII-02 may still benefit from the order is, as indicated in Sec. 1 (c) of the IRRs, through the correction of wage distortions. In any case, it would be highly irregular for the Wage Board to issue an across-the-board wage increase, its mandate being limited to determining and fixing the minimum wage rates within its area of concern, in this case the Caraga Region, and to issue the corresponding wage orders and implementing rules. In the same case, the Court held that a RTWPB commits anultra vires act when, instead of setting a minimum wage rate, it prescribes a wage increase cutting across all levels of employment and wage brackets: The RTWPB did not determine or fix the minimum wage rate by the floor-wage method or the salaryceiling method in issuing the Wage Order. The RTWPB did not set a wage level nor a range to which a wage adjustment or increase shall be added. Instead, it granted an across-the-board wage increase of P15.00 to all

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 employees and workers of Region 2. In doing so, the RTWPB exceeded its authority by extending the coverage of the Wage Orders to wage earners receiving more than the prevailing minimum wage rate, without a denominated salary ceiling. Only employees receiving salaries below the prescribed minimum wage are entitled to the wage increase set forth under WO RXIII-02, without prejudice, to the grant of increase to correct wage distortions ’s employees are undisputedly consequent to the implementation of such wage order. Considering that NIASSI already receiving a wage rate higher than that prescribed by the wage order, NIASSI is not legally obliged to grant them wage increase. Decision of the arbitrator is reversed.

Non-diminution of Benefits TSPIC CORPORATIONv. TSPIC EMPLOYEES UNION (FFW) G.R. No. 163419, February 13, 2008, Velasco, Jr., J.

An erroneously granted benefit may be withdrawn without violating the prohibition against nondiminution of benefits. Facts:

Corporation into a Collective with the the increaseTSPI of salary for the entered latter’s members for theBargaining year 2000Agreement to 2002 . Thus, the corporation increase in Union salaryfor was materialized on January 1, 2000. However, on October 6, 2000, the Regional Tripartite Wage and production Board raised daily minimum wage from P223.50 to P250.00 starting November 1, 2000. Conformably, the wages of the 17 probationary employees were increased to P250.00. They therefore became regular employees and received another 10% increase in salary. In January 2001, TSPIC implemented the new wage rates as mandated by the CBA. As a result, the nine employees who were senior to the 17 recently regularized employees, received less wages. On January 19, 2001, TSPIC’s Human Resource Development notified the 24 employees who are private respondents, that due to an error in the automated payroll system, they were overpaid and the overpayment would be deducted from their salaries starting February 2001. The Union asserted that there was no error and the deduction of the alleged overpayment constituted diminution of pay. They brought the issue to the grievance machinery but the TSPIC and the Union failed to reach an agreement. They went to a voluntary arbitration where the arbitrator held that the unilateral deduction made by TSPIC violated Art. 100 of the Labor Code. The decision was affirmed by the CA. Issue: Whether the deduction of the overpayment constitutes diminution of benefits Ruling: No. Diminution of benefits is the unilateral withdrawal by the employer of benefits already enjoyed by the employees. There is diminution of benefits when it is shown that: (1) the grant or benefit is founded on a policy or has ripened into a practice over a long period; (2) the practice is consistent and deliberate; (3) the practice is not due to error in the construction or application of a doubtful or difficult question of law; and (4) the diminution or discontinuance is done unilaterally by the employer.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The overpayment of its employees was a result of an error. This error was immediately rectified by TSPIC upon its discovery. No vested right accrued to individual respondents when TSPIC corrected its error by crediting the salary increase for the year 2001 against the salary increase granted under WO No. 8, all in accordance with the CBA. Hence, any amount given to the employees in excess of what they were entitled to may be legally deducted by TSPIC from the employees’ salaries. It was also fair that TSPIC deducted the overpayment in installments over a period of 12 months starting from the date of the initial deduction to lessen the burden on the overpaid employees. TSPIC must refund to respondents any amount deducted from their salaries which was in excess of what TSPIC is legally allowed to deduct from the salaries. Separation Pay CENTRAL PHILIPPINES BANDAG RETREADERS, INC.v. PRUDENCIO J. DIASNES G.R. No. 163607, July 14, 2008, Velasco, Jr., J.

When dismissal is due tothe employee’s fault, separation pay should not be awarded. Facts: Due to personal problems, Prudencio’s performance as sales manager of Central Philippines Bandag Retreaders, Inc. (Bandag) waned and his absences became more frequent. The Employee Adjudication Committee unanimously agreed to relieve Prudencio for three (3) months to settle his problems, after which Prudencio may either return to work but with another position, or retire and receive his separation pay. Instead of availing either option in the report, Prudencio requested that he be transferred from Tacloban City to Cebu City, to which Bandag agreed. However, Prudencio’s attendance and punctuality were still poor. The company eventually dismissed Prudencio for gross and habitual neglect of duty under Art. 282 of the Labor Code. Prudencio claims that assuming that he was legally separated from his employment, he is still entitled to separation pay. Issue: Whether an employee validly dismissed due to his own fault is entitled to separation pay Ruling: No. When an employee is lawfully dismissed, separation pay may only be awarded if the cause of dismissal was not due to the employee’s fault, but due to: (1) the installation of labor saving devices, (2) redundancy, (3) retrenchment, (4) cessation of employe r’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 health and to the health of his co-employees (Art. 283 & 284, Labor Code). It may also be awarded in case of strained relations. When the case falls under Art. 282, like gross and habitual neglect of duty, separation pay should not be paid to the employee. Although there are cases when social justice may warrant the award of separation pay or financial assistance, the labor adjudicatory officials and the CA must be most judicious and circumspect lest the constitutional policy to provide full protection to labor be at the expense of the employers. In addition, while the company did make an offer of separation pay upon adopting the srcinal recommendation of the Committee, the same offer was superseded when Bandag agreed to Prudencio’s proposal to transfer to Cebu City.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Retirement Pay RICARDO G. PALOMAv. PHILIPPINE AIRLINES, INC. AND THE NATIONAL LABOR RELATIONS COMMISSION G.R. No. 148415, 156764, July 14, 2008, Velasco, Jr., J.

Unlike the public sector, there is no law allowing for commutation of unused or accrued sick leave credits in the private sector. Commutation in the private sector is allowed only by way of voluntary endowment by an employer through company policy or by a Collective Bargaining Agreement (CBA). Facts: Ricardo worked with Philippine Airlines (PAL) for 35 years and retired on March 1992, or 9 months before PAL was privatized. Ricardo was paid his sick leave credits worth in accord with company policy. Ricardo complained, arguing that the sick leave credits paid to him was much lower than that required by Executive Order No. 1077, issued in 1986. The said EO, allows retiring government employees to commute, without limit, all his accrued vacation and sick leave credits. Issue: Whether Ricardo is entitled to the benefits under EO 1077 Ruling: No. PAL never ceased to be operated as a private corporation, and was not subjected to the Civil Service Law. PAL was incorporated as a private corporation. While PAL’s controlling interest was once owned by GSIS for a time, and while during the said period, PAL may be considered as a GOCC, one fact remains: PAL still functioned as a private corporation and for profit. It was the Labor Code and not the Civil Service Law that was applied to PAL through the years, since its incorporation. Since Ricardo was never a government employee covered by the Civil Service Law, he never acquired the benefits accorded by EO 1077. What applies instead is the company policy of PAL.

Employer-employee Relationship RAUL G. LOCSIN and EDDIE B. TOMAQUINv. PHILIPPINE LONG DISTANCE TELEPHONE CO. G.R. No. 185251, October 2, 2009, Velasco, Jr., J.

The power of control is the right to control not only the end to be achieved but also the means to be used in reaching such end. Facts: Philippine Long Distance Telephone Company (PLDT) and the Security and Safety Corporation of the Philippines (SSCP) entered into a Security Services Agreement (Agreement) whereby SSCP would provide armed security guards to PLDT to be assigned to its various offices. Pursuant to such agreement, Raul Locsin and Eddie Tomaquin, among other security guards, were posted at a PLDT office. PLDT issued a Letter terminating the Agreement effective October 1, 2001. Despite the termination of the Agreement, however, petitioners continued to secure the premises of their assigned office. They were allegedly directed to remain at their post by representatives of respondent. In support of their contention, petitioners provided the Labor Arbiter with copies of petitioner Locsin’s pay slips for the period of January to September 2002.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 On September 30, 2002, petitioners’ services were terminated. They filed a complaint before the Labor Arbiter for illegal dismissal and recovery of money claims. Issue: Whether petitioners became employees of PLDT after the Agreement between SSCP and PLDT was terminated Ruling: ’ employer from the termination of the Agreement Yes. Respondent must be considered as petitioners onwards as this was the only time that any evidence of control was exhibited by respondent over petitioners. Respondent, by directing petitioners to remain at their posts and continue with their duties, exercised control over them. This is sufficient to establish the existence of an employer-employee relationship. While respondent and SSCP no longer had any legal relationship with the termination of the Agreement, petitioners remained at their post securing the premises of respondent while receiving their salaries, allegedly from SSCP. With the behest and, presumably, directive of respondent, petitioners continued with their services. Evidently, such are indicia of control that respondent exercised over petitioners.

GREGORIO V. TONGKOv. THE MANUFACTURERS LIFE INSURANCE CO. (PHILS.), INC. and RENATO A. VERGEL DE DIOS G.R. No. 167622, November 7, 2008 , Velasco, Jr., J.

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. Facts: Manufacturers Life Insurance Co. (Phils.), Inc. (Manulife) is a domestic corporation engaged in life insurance business. Petitioner Gregorio Tongko (Tongko) entered into a Career Agent’s Agreement with Manulife. As an agent, his duties consisted of canvassing for applications for group policies and other products of the company. Tongko was named unit manager in Manulife's Sales Agency Organization, branch manager, and sales manager. Tongko failed to comply with policies of Manulife, his Agency Agreement was terminated. Tongko filed a complaint with the NLRC for illegal dismissal. Tongko, in a bid to establish an employer-employee relationship, alleged that De Dios gave him specific directives on how to manage his area of responsibility and also claimed that his dismissal was without basis and that he was not afforded due process. Manulife alleged that Tongko is not its employee, and that it did not exercise "control" over him. Manulife claimed that the NLRC has no jurisdiction over the case. The labor arbiter decreed that no employer-employee relationship existed between the parties. The NLRC reversed the labor arbiter’s decision finding Tongko to have been illegally dismissed. The CA reversed the decision of the NLRC finding the absence of an employer-employee relationship between the parties and deeming the NLRC with no jurisdiction over the case. Issues:

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Whether there was an employer-employee relationship between Manulife and Tongko Ruling: Yes. The NLRC arrived at its conclusion, first, on the basis of the letter dated November 6, 2001 addressed by De Dios to Tongko. According to the NLRC, the letter contained "an abundance of directives or orders that are intended to directly affect complainant's authority and manner of carrying out his functions as Regional Sales Manager." The NLRC further ruled that the different codes of conduct that were applicable to Tongko served as the foundations of the power of control wielded by Manulife over Tongko that is further manifested in the different administrative and other tasks that he was required to perform. The NLRC also found that Tongko was required to render exclusive service to Manulife, further bolstering the existence of an employeremployee relationship. Finally, the NLRC ruled that Tongko was integrated into a management structure over which Manulife exercised control, including the actions of its officers. The NLRC held that such integration added to the fact that Tongko did not have his own agency belied Manulife's claim that Tongko was an independent contractor. Additionally, it must be pointed out that the fact that Tongko was tasked with recruiting a certain number of agents, in addition to his other administrative functions, leads to no other conclusion that he was an employee of Manulife.

Four-fold Test MARIAN B. NAVARETTEv. MANILA INTERNATIONAL FREIGHT FORWARDERS, INC./MIFFI LOGISTICS COMPANY, INC., MR. HARADA, AND MBI MILLENNIUM EXPERTS, INC., G.R. No. 200580, February 11, 2015, Velasco, Jr., J.

The power of control is determinative of the existence of employer-employee relationship. Facts: MIFFI entered into a contract with MBI for the provision of production workers and technical personnel for MIFFI's projects or temporary needs. MBI hired Navarette and assigned her as a temporary project employee to MIFFI's Packaging Department. For a fixed period of three (3) months, she worked amongst MIFFI's regular employees who performed the same tasks as hers. She used MIFFI's equipment and was supervised by employees of MIFFI. Navarette, joined by other employees, filed a complaint for inspection against respondents MIFFI, MLCI, MBI and a certain PAMS with theofDOLE Arbitration IV. Following an inspection of respondents' premises, certain violations labor Regional laws were uncovered,Branch including labor-only contracting by MBI. Several hearings were had and eventually, the parties decided to submit an agreement to be signed by all concerned and to be approved by DOLE officials. Pursuant to said covenant, MBI called a meeting where Navarette and her co-workers were asked to sign a document. However, Navarette found the contents of the document to be erroneous since it stated that the parties had already come to an agreement on the issues and conditions when, in fact, no such agreement was made. This angered Navarette, causing her to throw the document and to say,Hindi " ito ang pinagusapan natin saDOLE! Niloloko niyo lang kami." Her actuations, to MBI, constituted serious misconduct, for which a show-cause memorandum was issued directing her to explain herself. After issuing several memoranda setting conferences on the matter to which Navarette could not attend because of her work schedule, MBI terminated Navarette's employment. Navarette filed a complaint for illegal dismissal before the NLRC against MBI, MIFFI andMCLI. The respondents claimed that since MBI isa legitimate labor contractor, MBI is liable to the petitioner.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Issue: Whether Navarette is MBI's employee Ruling: Yes. A in Philippine labor law is the of the test (2) in determining thefundamental existence of principle an employer-employee relationship, thus:application (1) selection and four-fold engagement; payment of wages; (3) power to dismiss; and (4) power of control over the means and methods by which the work is to be accomplished.There are, however, instances when these elements are not exercised by a single person or entity. There are cases where one or more of the said factors are assumed by another entity, for which reason, the Court made it clear that of the four tests mentioned, it is the power of control that is determinative. One such instance is whenever an employer supplies workers to another pursuant to a contracting agreement, i.e., job contracting. Per DOLE Order No. 3, Series of 2001, there is contracting or subcontracting whenever an employer, referred to as the principal, farms out the performance of a part of its business to another, referred to as the contractor or subcontractor, and for the purpose of undertaking the principal's business that is farmed out, the contractor or subcontractor then employs its own employees. In such an arrangement, the four-fold test must be satisfied by the contractor or subcontractor.Otherwise, it is the principal that shall be considered as the employer.

Project employment

EQUIPMENT TECHNICAL SERVICES (ETS) & JOSEPH JAMES DEQUITO v. CA, ALEX ALBINO, et.al. G.R. No. 157680, October 8, 2008, Velasco, Jr., J.

The principal test for determining whether one is a "project employee," as distinguished from "regular employee," is whether he was assigned to carry out "a specific project or undertaking," the duration and scope of which were specified at the time the employee was engaged for that project. Facts: One of ETS’ clients was Uniwide. Dequito was occupying the position of manager of ETS. ETS hired the services of Albino, as pipe fitters,work plumbers, threaders. ETS experienced when Uniwide failed to pay et.al. for the plumbing being or done at its Coastal Mall. ETS financial was onlydifficulties able to pay its employees 13th monthpay equivalent to two weeks’ salary. Thus, Albino, et. al. filed a case before the LA, which decided in favor of Albino, et. al. and declared that their dismissal was illegal. NLRC reversed but upheld the validity of the monetary award given. The CA reversed and ordered ETS to pay their holiday pay and service incentive leave pay. Issue: Whether Albino, et. al. are project employees Ruling: No. The service of project employees are coterminous with the project and may be terminated upon the end or completion of that project or project phase for which they were hired. Regular employees, in

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 contrast, enjoy security of tenure and are entitled to hold on to their work or position until their services are terminated by any of the modes recognized under the Labor Code. ETS admits hiring Albino, et. al. to perform plumbing works for various projects. Regular employment may reasonably be presumed and it behooves ETS to prove otherwise, that the employment in question was contractual in nature ending upon the expiration of the term fixed in the contract or for a specific project or undertaking. But the categorical finding of the CA is that not a single written contract of employment fixing the terms of employment for the duration of the Uniwide project, or any other project, was submitted by ETS. Records of payroll and other pertinent documents, such as job contracts secured by ETS showing that they were hired for specific projects, were also not submitted by ETS. Moreover, if they were indeed employed as project employees, ETS should have had submitted a report of termination every time their employment was terminated owing to the completion of each plumbing project. ETS’ failure to report the employment termination and file the necessary papers after every project completion tends to support the claim of not being project employees. Also, the constitutionally-protected right of labor to security of tenure covers both regular and project workers. Their termination must be for lawful cause and must be done in a way which affords them proper notice and hearing. Private respondents are regular employees whose services were terminated without lawful cause and effected without the requisite notice and hearing. Job Contracting Effects of Labor-only Contracting FONTERRA BRANDS PHILS., INC.v. LEONARDO LARGADO AND TEOTIMO ESTRELLADO G.R. No. 205300, March 18, 2015, Velasco, Jr., J.

Respondents, by accepting the conditions of the contract, cannot now argue that they were illegally dismissed when their contracts were not renewed after expiration. Facts: Fonterra contracted the services of Zytron for the marketing of its dairy products. Pursuant to the contract, Zytron provided Fonterra with trade merchandising representatives (TMRs), including herein respondents. Subsequently, Fonterra sent Zytron a letter terminating its promotions contract and it soon entered into an agreement for manpower supply with A.C. Sicat Marketing and Promotional Services. Respondents submitted theircontracts job applications with A.C. Sicat, which a termsought of five renewal months. When respondents’ 5-month with A.C. Sicat were about to hired expire,them they for allegedly thereof, but were allegedly refused. Respondents filed complaints for illegal dismissal, regularization, nonpayment of service incentive leave and 13th month pay, and actual and moral damages, against Zytron and A.C. Sicat. Issues: 1. Whether Zytron and A.C. Sicat are labor-only contractors 2. Whether respondents were illegally dismissed Ruling: 1.

Yes. A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur:

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; The contractor or subcontractor has substantial capital or investment; and The agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social and welfare benefits. 2.

No. The termination of respondents’ employment with the latter was simply brought about by the expiration of their employment contracts.

Respondents were employed by A.C. Sicat as project employees. In their employment contract with the latter, it is clearly stated that “[A.C. Sicat is] temporarily employing [respondents] as TMR[s] effective June 6, 2006 under the following terms and conditions: The need for your service being only for a specific project, your temporary employment will be for the duration only of said project of our client, namely to promote FONTERRA BRANDS products xxx which is expected to be finished on or before Nov. 06, 2006.” Non-renewal of their contracts by A.C. Sicat is a management prerogative, and failure of respondents to prove that such was done in bad faith militates against their contention that they were illegally dismissed. The expiration of their contract with A.C. Sicat simply caused the natural cessation of their fixed-term employment thereat.

W.M. M ANUFACTURING, INC. v. RICHARD R. DALAG AND GOLDEN ROCK MANPOWER SERVICES G.R. No. 209418, December 07, 2015, Velasco, Jr., J.

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. Facts: Golden Rock contracted a “Service Agreement” with WM MFG. WM MFG engaged the services of Dalag as a factory worker assigned at its factory thus creating a five-month Employment Contract between them. Dalag later on filed a complaint for illegal dismissal as he was not allowed to work and that he was denied due process as to why he is not allowed. He further claimed that he was assigned as a side seal machine operator which was necessary and desirable for WM MFG’s plastic manufacturing business making him a regular employee. He alleged that Golden Rock and WM MFG engaged in labor-only contracting because all equipment for the job were furnished by WM MFG and all jobs were to be done in the vicinity of WM MFG and he was under the control by the supervisors of WM MFG. WM MFG alleged in their position paper that Dalag abandoned his work and was not illegally dismissed.He was sent memos for several faults he has done but never received them and did not report for work anymore. The Labor Arbiter dismissed the complaint of Dalag. The NLRC reversed the decision of the Labor Arbiter agreeing to the fact that WM MFG and Golden Rock engaged in labor-only contracting. A Motion for Reconsideration was later granted and setting aside the previous NLRC decision. The CA ultimately reversed the decision and ruled in favor of Dalag stating that Golden Rock was not able to prove that it was an independent contractor as they were not able to show proof that they had substantial capital and exercise control over Dalag.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Issue: Whether WM MFG and Golden Rock engaged in labor-only contracting Ruling: Yes. It may be that the DOLE Regional Director for the National Capital Region was satisfied by Golden Rock's capitalization as reflected on its financial documents, but the basis for determining the substantiality of a company's "capital" rests not only thereon but also on the tools and equipment it owns in relation to the job, work, or service it provides. DO 18-02 defines "substantial capital or investment" in the context of labor-only contracting as referring not only to a contractor's financial capability, but also encompasses the tools, equipment, implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out. Notwithstanding the contract stipulation leaving Golden Rock the exclusive right to control the working warm bodies it provides WM MFG, evidence shows that it was WM MFG who exercised supervision over Dalag's work performance. Dalag was supervised by WM MFG's employees. WM MFG even furnished Dalag with not less than seven memos directing him to explain within twenty-four hours his alleged work infractions. The company took pains in issuing investigation reports detailing its findings on Dalag's culpability. Clearly, WM MFG disciplined Dalag for violation of company rules, regulations, and policies, validating the presence of the right to control.

Termination of Employment Just Causes

ESTRELLITA G. SALAZAR v. PHILIPPINE DUPLICATORS, INC., and /or LEONORA FONTANILLA G.R. No. 154628, December 6, 2006, Velasco, Jr., J.

The constitutional policy to provide full protection to labor is not meant to oppress employers. The cause of labor does not prevent us from sustaining the employer when the law is clearly on its side. Facts: Salazar was terminated from her employment due to alleged falsification of company records. Salazar denies receiving Duplicator's termination letter. The Labor Arbiter held that the dismissal was for a just cause but the company breached the twin-notice requirement as provided by law. It ordered Duplicators to pay the indemnity of PHP10,000. Issue: Whether Salazar validly dismissed Ruling: Yes. Petitioner was charged with falsifying company records. On this issue, Labor Arbiter Caday made the following findings,viz:

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 A scrutiny of these documentary evidence reveals that on November 20, 1998, at around 3:00 PM complainant Salazar visited Juliet Alvarez of Banco-Filipino-Legal, Paseo de Roxas, Legaspi Village, Makati City (Annex A and A-1 attached to Respondents Rejoinder). This belies complainants claim that she visited the respondent’s customer, D.M. Consunji, Inc. on November 20, 1998 at around 3:00P.M. (Annex C attached to Complainants Reply). Moreover, Mr. Enrique Patag signed the Certification on December 15, 1998 on the date when complainant (Salazar) was no longer reporting for work and filed a case for illegal dismissal against respondents docketed as NLRC Case No. 00-12-10174-98 which was later ordered dismissed by Labor Arbiter Eduardo Carpio for lack of interest to prosecute. Similarly, the certification issued by Mr. Frederick Sison of the D.M. Consunji, Inc. attesting to complainants visit on November 20, 1998, at 2:00 p.m. is confuted [sic] by the fact that on November 20, 1998, complainant [Salazar] visited Fely/Federico and Lilian at the Makati Medical Center as appearing in customer ledger of Makati Medical Center. (Annex B and B-1 attached to Respondents Rejoinder). With the foregoing observations, complainant’s pretensions [are] at once noticeable and [merit] scant consideration. The findings of Arbiter Caday jibe with those of the NLRC, to wit: Specifically, in a report she stated that she made a follow-up with Leny Sambrano of Bengson Law Office on November 20, 1998. However, in her Reply, she admitted that she saw, not Sambrano, who was not around, but his secretary. It appears that [in] the report in question, Sambrano wrote, there was no visit last Friday,11/20 and then affixed [her] signature. In another report, she stated that she made a follow-up with Jun of ICLARM on November 20, 1998, but it appeared that Jun Fedrigon wrote on the same report, which he also signed, that she did not visit his office on the date in question. In a letter dated December 15, 1998, he stated that he had no memory of seeing the complainant on the date in question. x x x The findings of both Arbiter Caday and the NLRC were sustained by the CA, which ruled that there is ample proof to bear out that the petitioner knowingly recorded erroneous entries in her Daily Sales Reports. It is well-settled that the findings of fact of quasi-judicial agencies like the NLRC are accorded not only respect but even finality if the findings are supported by substantial evidence; more so when such findings were affirmed by the CA and such findings are binding and conclusive upon this Court. Petitioner committed fraud or willful breach of the employer’s trust reposed in her under Article 282 of the Labor Code.

EDI-STAFFBUILDERS INTERNATIONAL, INC.v. NATIONAL LABOR RELATIONS COMMISSION and ELEAZAR S. GRAN G.R. No. 145587, October 26, 2007, Velasco, Jr., J.

In termination disputes or illegal dismissal cases, the employer has the burden of proving that the dismissal is for just and valid causes. The employer is bound to adduce clear, accurate, consistent, and convincing evidence to prove that the dismissal is legal. Facts: EDI is engaged in recruitment and placement of OFWs. Eleazar Gran was an OFW recruited by EDI to work Omar Ali Bin Bechr Est. at Riyadh, Saudi Arabia. EDI and OAB entered into an employment contract with Gran whereby the latter will work as a computer specialist for OAB while EDI would process the papers of Gran necessary for his employment at Saudi Arabia. Gran started working for OAB. However, Gran was terminated by OAB on the ground of insubordination against the management of OAB. Gran was given his final pay and was sent back to the Philippines. Gran filed a complaint for underpayment and illegal dismissal against EDI before the LA.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The LA dismissed the complaint. On appeal with the NLRC, the NLRC reversed the decision of the LA and held that there was underpayment and illegal dismissal thus warranting the award of backwages in favor of Gran. The CA affirmed the decision of the NLRC. Hence this petition. Issue: Whether EDI is guilty of underpayment of wages and illegal dismissal Ruling: Yes. EDI claims that Gran was validly dismissed for just cause, due to incompetence and insubordination or disobedience. To prove its allegations, EDI submitted two letters as evidence. The first is the July 9, 1994 termination letter, addressed to Gran, from Andrea E. Nicolaou, Managing Director of OAB. The second is an unsigned April 11, 1995 letter from OAB addressed to EDI and ESI, which outlined the reasons why OAB had terminated Gran’s employment. Petitioner claims that Gran was incompetent for the Computer Specialist position because he had insufficient knowledge in programming and zero knowledge of the ACAD system. Petitioner also claims that Gran was justifiably dismissed due to insubordination or disobedience because he continually failed to submit the required Daily Activity Reports. However, other than the abovementioned letters, no other evidence was presented to show how and why Gran was considered incompetent, insubordinate, or disobedient. EDI failed to overcome the burden of proving that Gran was validly dismissed. An allegation of incompetence should have a factual foundation. Incompetence may be shown by weighing it against a standard, benchmark, or criterion. EDI failed to establish any such bases to show how petitioner found Gran incompetent.

ROLANDO V. AROMINv. NATIONAL LABOR RELATIONS COMMISSION, BANK OF THE PHILIPPINE ISLANDS, XAVIER P. LOINAZ, President, and EDMUNDO A. BARCELON, Senior Vice-President G.R. No. 164824, April 30, 2008, Velasco, Jr., J.

Loss of confidence, as a ground for dismissal, is premised on the fact that the employee concerned holds a position of responsibility or of trust and confidence. Facts: Aromin worked for BPI for 26 years and he was the assistant vice-president when he was terminated. He headed the BPI’s Real Property Management Unit (RPMU) when the botched purchase by Limketkai of a trust asset held by BPI happened. Revilla, authorized by the owner to sell the lot, informed BPI that he has a buyer in Limketkai. The brothers Limketkai met with Aromin to negotiate whether they can pay the purchase price on terms instead of in cash. Limketkai tendered full payment a few days after but BPI refused to receive it. Limketkai, in a bid to consummate the sale, filed a case against BPI. Asked to comment on the material allegations of the said complaint, Aromin sent to the BPI Legal Services Division a September 6, 1988 memorandum. He also received a warning about belated submission ofwork assignments, tardiness, and unexplained absences. In the course of the trial of the civil case filed by Limketkai, specifically on December 3, 1990 hearing, Aromin testified to the surpriseof BPI’s legal counsel. A show-cause memorandum gave Aromin five days to explain why he did so. It appears that Aromin’s testimony, apart from being inimical to BPI’s interests, contradicted what he wrote in the September 6, 1988 memorandum. The RTC found the testimony of Aromin vital in determining a "meeting-of-the-minds" regarding the sale of, and the price for, the Pasig property. The RTC rendered judgment finding for Limketkai. BPI served on Aromin a Notice of

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Termination, citing willful breach of trust and loss of confidence, as grounds for termination. Aromin filed a complaint for illegal dismissal. Issue: Whether Aromin was illegally dismissed Ruling: No. BPI had indeed a valid case for dismissal against Aromin on the ground of loss of confidence. Being an AVP during the period material, Aromin falls under the category of a managerial employee upon whom trust and confidence had been reposed by the employing bank. Violating that trust and confidence is a valid cause for dismissal under Art. 282of the Labor Code. However, the employer must clearly and convincingly establish the charges. Loss of confidence, as a ground for termination, should not be (1) simulated; (2) used as a subterfuge for causes which are improper, illegal, or unjustified; (3) arbitrarily asserted; and (4) a mere afterthought to justify earlier action taken in bad faith. The position assumed and the answers given by Aromin when he testified proved to be adverse to his employer’s interest. The acts committed, inclusive of those done before he took the witness stand to testify falsely against the interest of the employer, adversely reflected on his competence, loyalty, and integrity. Said acts were sufficient for his employer to lose trust and in him.

BLUE ANGEL MANPOWER AND SECURITY SERVICES, INC.v. COURT OF APPEALS, ROMEL CASTILLO, WILSON CIRIACO, GARY GARCES, AND CHESTERFIELD MERCADER G.R. No. 161196, July 28, 2008, Velasco, Jr., J.

To constitute resignation, it must be unconditional with the intent to operate as such. There must be clear intention to relinquish the position. The filing of a complaint for illegal dismissal is inconsistent with resignation. Facts: Blue Angel hired respondents as security guards and detailed them at the National College of Business and Arts (NCBA). On April 20, 1999, respondents filed a complaint for illegal deductions against Blue Angel and later on amended it to be an action for illegal dismissal. The respondents allege that Blue Angel deducted P100 from their salary as a cash bond. Upon being apprised of the srcinal complaint for illegal deductions, Blue Angel terminated their services. In its defense, Blue Angel contended that the respondents committed Insubordination, sleeping on duty, and absence without leave and when told that they will be subjected to investigation, they pleaded that they be allowed to resign instead. They tendered their pro-forma letters of resignation, followed by handwritten resignation letters. Issue: Whether the pro-forma letters of resignation and handwritten resignation letters are indication of respondents’ resignation Ruling: No. The undated, similarly worded resignation letters tended to show that the guards were made to copy the pro-forma letters, in their own hand, to make them appear more convincing that the guards had voluntarily resigned. The element of voluntariness of the resignations is even more suspect considering that

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 the second set of resignation letters were pre-drafted, similarly worded, and with blank spaces filled in with the effectivity dates of the resignations. Respondents claimed being forced to sign and copy theproforma resignation letters on pain that they would not get their remaining compensations. The fact that respondents filed a complaint for illegal dismissal from employment against Blue Angel completely negates the claim that private respondents voluntarily resigned. Respondents actively pursued their illegal dismissal case against Blue Angel such that they cannot be said to have voluntarily resigned from their jobs.

GREGORIO V. TONGKOv. THE MANUFACTURERS LIFE INSURANCE CO. (PHILS.), INC. and RENATO A. VERGEL DE DIOS G.R. No. 167622, November 7, 2008 , Velasco, Jr., J.

The burden of proving the validity of the termination of e mployment rests with the employer. Failure to discharge this evidentiary burden would necessarily mean that the dismissal was illegal. Unsubstantiated suspicions, accusations and conclusions of employers do not provide for legal justification for dismissing employees. In case of doubt, such cases should be resolved in favor of labor, pursuant to the social justice policy o f our labor laws and Constitution. Facts: Manufacturers Life Insurance Co. (Phils.), Inc. (Manulife) is a domestic corporation engaged in life insurance business. Gregorio Tongko entered into a Career Agent’s Agreement with Manulife. As an agent, his duties consisted of canvassing for applications for group policies and other products of the company. Tongko was named unit manager in Manulife's Sales Agency Organization, branch manager, and sales manager. Tongko failed to comply with policies of Manulife; thus, his Agency Agreement was terminated. Tongko filed a complaint with the NLRC against Manulife for illegal dismissal. Tongko, in a bid to establish an employer-employee relationship, alleged that De Dios gave him specific directives on how to manage his area of responsibility and also claimed that his dismissal was without basis and that he was not afforded due process. Manulife alleged that Tongko is not its employee, and that it did not exercise control over him. Manulife claimed that the NLRC has no jurisdiction over the case. The labor arbiter decreed that no employer-employee relationship existed between the parties. The NLRC reversed the labor arbiter’s decision finding Tongko to have been illegally dismissed. The CA reversed the decision of the NLRC finding the absence of an employer-employee relationship between the parties and deeming the NLRC with no jurisdiction over the case. Issues: Whether Manulife is guilty of illegal dismissal Ruling: Yes. Manulife failed to cite evidence to support its claims. Manulife did not point out the specific acts that Tongko was guilty of that would constitute gross and habitual neglect of duty or disobedience. Manulife merely cited Tongko's alleged "laggard performance," without substantiating such claim. Manulife failed to overcome such burden of proof. Manulife even failed to identify the specific acts by which Tongko's employment was terminated much less support the same with substantial evidence. Mere conjectures cannot work to deprive employees of their means of livelihood. Tongko was illegally dismissed. Moreover, as to Manulife's failure to comply with the twin notice rule, it reasons that Tongko not being its

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 employee is not entitled to such notices. Since we have ruled that Tongko is its employee, however, Manulife clearly failed to afford Tongko said notices. Thus, on this ground too, Manulife is guilty of illegal dismissal.

WESLEYAN UNIVERSITY PHILIPPINESv. NOWELLA REYES G.R. No. 208321, July 30, 2014, Velasco, Jr., J.

An employer cannot be compelled to retain an employee who is guilty of acts inimical to the interests of the employer. Facts: Wesleyan University dismissed its University Treasurer Nowella Reyes since it allegedly lost trust and confidence owing to an interplay of the events such as: (1) encashing a check payable to the University Treasurer in the amount 300K; (2) encashing crossed checks payable to the University Treasurer, when the intention of management in this regard was to merely transfer funds from one of petitioner’s accounts to another in the same bank; and (3) spurious duplicate checks bearing her signature were encashed causing damage to petitioner. Respondent post-haste filed a complaint for illegal dismissal. Labor Arbiter ruled in her favor. However, this was reversed by NLRC. On appeal, CA reinstated the Decision of the Labor Arbiter. Hence, this Petition. Issue: Whether there was a valid dismissal on the ground of loss of trust and confidence Ruling: Yes. Petitioner adequately proved respondent’s dismissal was for a just cause, based on a willful breach of trust and founded on clearly established facts as required by jurisprudence. The question of whether she was a managerial or rank-and file employee does not matter in this case because not only is there basis for believing that she breached the trust of her employer, her involvement in the irregularities attending to petitioner’s finances has also been proved. A company has the right to dismiss its employees if only as a measure of self-protection. This is truer in the case of supervisors or personnel occupying positions of responsibility. Respondent was not an ordinary rank-and-file employee as she was the Treasurer who was in charge of the coffers of the University. It would be oppressive to require petitioner to retain in their management an officer who has admitted to knowingly and intentionally committing acts which jeopardized its finances and who was untrustworthy in the handling and custody of University funds.

RUBEN L. ANDRADA, BERNALDO V. DELOS SANTOS, JOVEN M. PABUSTAN, FILAMER ALFONSO, VICENTE A. MANTALA, JR., HARVEY D. CAYETANO, and JOVENCIO L. POBLETE v. NATIONAL LABOR RELATIONS COMMISSION, SUBIC LEGEND RESORTS AND CASINO, INC., and/or MR. HWA PUAY, MS. FLORDELIZA MARIA REYES RAYEL, and its CORPORATE OFFICERS G.R. No. 173231, December 28, 2007, Velasco, Jr., J.

Employment is not merely a lifestyle choice to stave off boredom. Employment to the common man is his very life and blood, which must be protected against concocted causes to legitimize an otherwise irregular

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 termination of employment. Imagined or undocumented business losses present the least propitious scenario to justify retrenchment. Facts: Ruben Andrada, Jovencio Poblete, Filamer Alfonso, Harvey Cayetano, Vicente Mantala, Jr., Bernaldo delos Santos, and Joven Pabustan were hired on various dates as architects, draftsmen, operators, engineers, and surveyors in the Subic Legend Resorts and Casino, Inc. (Legend) Project Development Division on various projects. Legend sent notice to the DOLE of its intention to retrench and terminate the employment of thirtyfour (34) of its employees, which include petitioners, in the Project Development Division. Legend explained that it would be retrenching its employees on a last-in-first-out basis on the strength of the updated status report of its Project Development Division. Legend sent the 34 employees their respective notices of retrenchment, stating the same reasons for their retrenchment. On the same day, the Labor and Employment Center of the Subic Bay Metropolitan Authority advertised that Legend was in need of employees for positions similar to those vacated by petitioners. Subsequently, 14 of the 34 retrenched employees filed before the Labor Arbiter (LA) a complaint for illegal dismissal and money claims which ruled in their favor. On appeal, the NLRC reversedeth LA’s decision. Said employees filed a petition for certiorari before the CA but it was dismissed on the ground that the retrenched employees were validly dismissed from employment due to redundancy and not retrenchment. It also held that the CA held that the NLRC had sufficiently explained that it was not Legend but Gaehin International Inc. (Gaehin) which asked for Subic Bay Metropolitan Authority’s help in recruiting personnel. Hence, this petition was filed.

Issue: Whether the petitioners were validly dismissed based on redundancy and not on retrenchment Ruling: No. Retrenchment and redundancy are two different concepts; they are not synonymous and therefore should not be used interchangeably. This Court explained in detail the difference between the two concepts in Sebuguero v. NLRC (G.R. No. 115394, September 27, 1995 ): 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 over hiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. Retrenchment is used interchangeably with the term lay-off. It 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. It is an act of the employer of dismissing employees because of losses in the operation of a business, lack of work, and considerable reduction on the volume of his business, a right consistently recognized and affirmed by this Court.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Redundancy exists when the number of employees is in excess of what is reasonably necessary to operate the business. The declaration of redundant positions is a management prerogative. The determination that the employees services are no longer sustainable and therefore properly terminable is an exercise of business judgment by the employer. The wisdom or soundness of this judgment is not subject to the discretionary review of the Labor Arbiter and NLRC. However, the pieces of evidence submitted by Legend are mere allegations and conclusions not supported by other evidence. Legend did not even or explain why it considered petitioners’ positions superfluous. The CA puts too much weight on petitioners’ failure to refute Legend’s allegations contained in the document it submitted. However, the employer bears the burden of proving the cause or causes for termination. Its failure to do so would necessarily lead to a judgment of illegal dismissal. Substantial evidence is the question of evidence required to establish a fact in cases before administrative and quasi-judicial bodies. It is that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. The basis for retrenchment was not established by substantial evidence, Legend failed to establish by the same quantum of proof the fact of redundancy; hence, petitioners termination from employment was illegal.

ALFREDO A. MENDROS, JR. v. MITSUBISHI MOTORS PHILS. CORPORATION (MMPC) G.R. No. 169780, February 16, 2009 , Velasco, Jr., J.

Decisional law teaches that the requirements for a valid retrenchment 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, and real, or only if expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) that the employer serves written notice both to the employees concerned and the DOLE at least a month before the intended date of retrenchment; (3) that the employer pays the retrenched employee separation pay in an amount prescribed by the Code; (4) that the employer exercises its prerogative to retrench in good faith; and (5) that it uses fair and reasonable criteria in ascertaining who would be retrenched or retained. Facts: Mitsubishi Motors Philippines Corporation (MMPC) hired Alfredo A. Mendros, Jr. as regular body prepman, he was problems, then promoted as an assembler major inlosses. the company’s manufacturi ng division. Due to some economic MMPC sustained financial MMPC implemented various cost-cutting measures, such as but not limited to: cost reduction on the use office supplies and energy, curtailment of representation and travel expenses, employment-hiring freeze, separation of casuals and trainees, manpower services reduction, intermittent plant shutdowns, and reduced work week for managerial and other monthlysalaried personnel. Eventually MMPC instituted a series of retrenchment program, one of those who were affected is Petitioner. The temporary lay-off move was not enough to avert the losses; thus, petitioner and other personnel received notices of their permanent lay-off. Alfredo filed a case for illegal dismissal and damages. Issues: Whether Alfredo’s temporary lay-off and eventual retrenchment is legal and valid. Ruling:

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Yes. The right of management to retrench or to lay-off workers to meet clear and continuing economic threats or during periods of economic recession to prevent losses is recognized by Article 283 of the Labor Code. First, MMPC suffered substantial losses in FY 1997 and continued to bleed in 1998. Second, Alfredo cannot feign ignorance that MMPC was in dire straits in 1997 and 1998. Neither can he impugn the bona fides of MMPC’s retrenchment strategy. Third, Art. 283 uses the phrase "retrenchment to prevent losses." The phrase implies that retrenchment may be effected even in the event only of expected losses. The employer need not wait for substantial losses to materialize before preventing such losses. MMPC was already financially hemorrhaging before finally resorting to retrenchment. Fourth, MMPC had complied with the prior written notice and separation pay requirements. Finally, as the Court sees it, the merit rating system MMPC adopted as one of the criteria for selecting who are to be eased out was fair and reasonable under the premises.

ROSALES v. NEW A.N.J.H. ENTERPRISES G.R. No. 203355, August 18, 2015, Velasco, Jr., J.

Mere ownership by a single stockholder of all or nearly all of the capital stock of the corporation does not by itself justify piercing the corporate veil. Facts: Due to alleged dwindling capital, respondent wrote the Director of the DOLE Region IV-A a letter regarding New ANJH’s impending cessation of operations and the sale of its assets to respondent NH Oil Mill Corporation (NH Oil), as well as the termination of thirty-three (33) employees by reason thereof. Petitioners received their respective separation pays, signed the corresponding check vouchers and executed Quitclaims and Release before Labor Arbiter Melchisedek A. Guan (LA Guan). LA Guan then declared the “labor dispute” between New ANJH and petitioners as “dismissed with prejudice on ground of settlement.” Petitioners however, filed a complaint for illegal dismissal, with NLRC Regional Arbitration alleging in their complaint that while New ANJH stopped its operations, it resumed its operations as NH Oil using the same machineries and with the same owners and management, thus, in circumvention of their security of tenure. Petitioners advance the application of the doctrine because they were terminated from employment on the pretext that there will be an impending permanent closure of the business as a result of an intended sale of its assets to an undisclosed corporation, and that there will be a change in the management. Issue: Whether the cessation of the operations and subsequent sale of ANJH constitutes illegal dismissal Ruling: Yes. The application of the doctrine of piercing the veil of corporate fiction is frowned upon. However, the Court may disregard the corporate fiction if it is used to such an extent that injustice, fraud, or crime is committed against another. Subsequent events revealed that the buyer of the assets of their employer was a corporation owned by the same employer and members of his family. Furthermore, the business re-opened in less than a month under the same management. Mere ownership by a single stockholder of all or nearly all of the capital stock of the corporation does not by itself justify piercing the corporate veil. Nonetheless, in this case, other circumstances show that the buyer of the assets of petitioners’ employer is none other than his alter ego.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 ALEX Q. NARANJO, DONNALYN DE GUZMAN, RONALD V. CRUZ, ROSEMARIE P. PIMENTEL, and ROWENA B. BARDAJE v. BIOMEDICA HEALTH CARE, INC. and CARINA "KAREN" J. MOTOL G.R. No. 193789, September 19, 2012, Velasco, Jr., J.

The termination of employment must be based on a just or authorized cause of dismissal and the dismissal must be effected after due notice and hearing. Facts: Petitioners are employees of Biomedica Health Care, Inc. with Carina J. Motol as its president. On November 7, 2006, petitioners were all absent for various personal reasons. Later that day, the petitioners went to Biomedica to report to work after having received a text message requiring them to proceed to Biomedica. However, they were refused entry and told to start looking for another workplace. The next day, petitioners came to work but were not allowed to enter the premises. Carina J. Motol ordered them to look for another employer. On November 9, 2006 Biomedica sent notices to petitioners accusing them of having conducted an illegal strike. On November 20, 2006 petitioners filed a case for illegal dismissal with the NLRC. On November 29, 2006 Biomedica sent notices of termination to petitioners. In its decision, the Labor Arbiter found that petitioners indeed conducted a mass leave akin to an illegal strike. On appeal, the NLRC reversed the Labor Arbiter decision saying that petitioners were indeed illegally dismissed. Biomedica then appealed the case to the CA which reversed the NLRC decision nd a reinstated the Labor Arbiter’s decision. The CA ruled that petitioners staged a mass leave, and such act constitutes serious misconduct. Issue: Whether the petitioners were illegally dismissed Ruling: Yes. Petitioners were not afforded procedural due process because the notice given to them did not specify the exact acts that the company considers as constituting an illegal strike. A mere general description of the charges against the employee by the employer is insufficient. Secondly, petitioners were not afforded substantive due process. The dismissal of an employee must be based on Just and Authorized causes as provided under the Labor Code. Serious misconduct is one of the just causes of dismissal under the said code. However, to justify the dismissal of an employee on the ground of serious misconduct, the employer must first establish that the employee is guilty of improper conduct, that the employee violated an existing and valid company rule or regulation, or that the employee is guilty of a wrongdoing. Biomedica failed to establish that petitioners indeed violated any company rules.

KING OF KINGS TRANSPORT, INC., et al. v. SANTIAGO MAMAC G.R. No. 170083, June 29, 2007, Velasco, Jr., J.

The following should be considered in terminating an employee: (1) first written notice to be served on the employees should contain the specific causes or grounds for termination, (2) hearing or conference, and (3) written notice of termination. Facts: Santiago Mamac was hired as bus conductor of Don Mariano Transit Corporation (DMTC). Most DMTC employees were transferred to KKTI and were not able to participate in the certification election in

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 DMTC. Mamac was required to accomplish a "Conductor's Trip Report" which indicates the ticket opening and closing for that day of duty and to submit it to the company after each trip for auditing. An "Irregularity Report" against the employee is issued once irregularity is discovered and the employee is asked to explain the incident. Upon audit of Mamac’s report, KKTI discovered that he declared some sold tickets as returned tickets causing KKTI to lose income. Although no irregularity report was made, KKTI asked Mamac to explain the discrepancy as part of its procedure. Mamac said that it was unintentional and that during that day's trip, the windshield of the bus assigned to them was smashed and they had to cut short the trip. Hence, he got confused in making the report. Later, he received a letterterminating his employment alleging that the irregularity which occurred was an act of fraud against the company and also cited other offenses he allegedly made. Mamac filed a complaint but was dismissed by the labor arbiter. Upon appeal to the NLRC, it ruled that KKTI shall indemnify Mamac for failure to comply with due process. Mamac filed a Petition for Certiorari before the CA which affirmed the NLRC but modified its decision by awarding full backwages and further ruled that there was just cause for his dismissal. Issue: Whether KKTI complied with the due process requirements in terminating Mamac Ruling: No. The following should be considered in terminating the services of employees: (1) The first written noticeto 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. This should be construed as a period of at least five (5) 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 awritten notice of terminationindicating 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. After a finding that petitioners failed to comply with the due process requirements, the CA awarded full backwages in favor of respondent in accordance with the doctrine in Serrano v. NLRC (G.R. No. 117040, January 27, 2000). However, the doctrine inSerrano had already been abandoned inAgabon v. NLRC (G.R. No. 158693, November 17, 2004)by ruling that if the dismissal is done without due process, the employer should indemnify the employee with nominal damages. Thus, for non-compliance with the due process requirements

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 in the termination of respondent's employment, petitioner KKTI is sanctioned to pay respondent the amount of PhP30,000 as damages.

MARILOU S. GENUINO v. NATIONAL LABOR RELATIONS COMMISSION, CITIBANK, N.A., WILLIAM FERGUSON, and AZIZ RAJKOTWALA G.R. Nos. 142732-33, December 4, 2007, Velasco, Jr., J.

In dismissing an employee, the Labor Code mandates that the requirement of twin-notices must be met. The first written noticeto 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. 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. 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. 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. Facts: Marilou Genuino, an employee of Citibank, received a letter from the latter charging her with "knowledge and/or involvement" in transactions "which were irregular or even fraudulent." In the same letter, Genuino was informed that she was under preventive suspension. Genuino in turn wrote Citibank asking for a bill of particulars regarding the charges against her. Citibank replied that it had no intention of converting the case into a full blown trial, as such, Citibank informed Genuino that what it can only give her is an opportunity to explain her side on the issue of whether she violated the conflict of interest rule, either in writing or in person during the administrative investigation. Genuino failed to submit a written explanation. Genuino likewise failed to appear during the administrative investigation. Consequently, Genuino's employment was terminated by Citibank on grounds of (1) serious misconduct, (2) willful breach of the trust reposed upon her by the bank, and (3) commission of a crime against the bank. Issue: Whether the dismissal of Genuino was made in accordance with procedural due process Ruling: No. The letters dated August 23, September 13 and 20, 1993 sent by Citibank did not identify the particular acts or omissionsallegedly committed by Genuino. The August 23, 1993 letter charged Genuino with having "some knowledge and/or involvement" in some transactions "which have the appearance of being irregular at the least and may even be fraudulent." The September 13, 1993 letter, on the other hand, mentioned "irregular transactions" involving Global Pacific and/or Citibank and 12 bank clients. Lastly, the September 20, 1993 letter stated that Genuino and "Mr. Dante Santos, using the facilities of their family corporations appear to have participated in the diversion of bank clients' funds from Citibank to, and investment thereof in, other companies and that they made money in the process, in violation of the conflict of law rule [sic]." The extent of Genuino's alleged knowledge and participation in the diversion of bank's clients' funds, manner of diversion, and amounts involved; the acts attributed to Genuino that conflicted with the bank's interests; and the circumstances surrounding the alleged irregular transactions, were not specified in the notices/letters. While the bank gave Genuino an opportunity to deny the truth of the allegations in writing and participate in the administrative investigation, the fact remains that the charges were too general to enable Genuino to intelligently and adequately prepare her defense.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 While we hold that Citibank failed to observe procedural due process, we nevertheless find Genuino's dismissal justified. Art. 282(c) of the Labor Code provides that an employer may terminate an employment for fraud or willful breach by the employee of the trust reposed in him/her by his/her employer or duly authorized representative. In order to constitute as just cause for dismissal, loss of confidence should relate to acts inimical to the interests of the employer.Also, the act complained of should have arisen from the performance of the employee's duties.For loss of trust and confidence to be a valid ground for an employee's dismissal, it must be substantial and not arbitrary, and must be founded on clearly established facts sufficient to warrant the employee's separation from work. As Assistant Vice-President of Citibank's Treasury Department, Genuino was tasked to solicit investments, and peso and dollar deposits for, and keep them in Citibank; and to sell and/or push for the sale of Citibank's financial products, such as the MBS, for the account and benefit of Citibank. She held a position of trust and confidence. There is no way she could deny any knowledge of the bank's policies nor her understanding of these policies as reflected in the survey done by the bank. She could not likewise feign ignorance of the businesses of Citibank, and of Global and Torrance. Assuming that Citibank did not engage in the same securities dealt with by Global and Torrance; nevertheless, it is to the interests of Citibank to retain its clients and continue investing in Citibank. Curiously, Genuino did not even dissuade the depositors from withdrawing their monies from Citibank, and was even instrumental in the transfers of monies from Citibank to a competing bank through Global and Torrance, the corporations under Genuino's control.

R.B. MICHAEL PRESS and ANNALENE REYES ESCOBIAv. NICASIO C. GALIT G.R. No. 153510, February 13, 2008, Velasco, Jr., J.

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. This should be construed as a period of at least five (5) 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. “

Facts: R.B. Michael Press hired Nicasio Galitas its offset machine operator. Due to the latter’s tardiness, absences, discourtesy to his superiors and unwillingness to render overtime work. Michael Press sent an office memorandum warning Galit of his dismissal from work and informing him that a hearing shall be held in the afternoon of the same day to determine the status of his employment. Consequently, Galit was dismissed. Issue: Whether Michael Press complied with the two-notice rule Ruling: No. Under the twin notice requirement, the employees must be given two (2) notices before his employment could be terminated: (1) a first notice to apprise the employees of their fault, and (2) a second notice to communicate to the employees that their employment is being terminated. Not to be taken lightly of course is the hearing or opportunity for the employee to defend himself personally or by counsel of his choice.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The undue haste in effecting respondent’s termination shows that the termination process was a mere simulation that the required notices were given, a hearing was even scheduled and held, but respondent was not really given a real opportunity to defend himself; and it seems that petitioners had already decided to dismiss respondent from service, even before the first notice had been given. Anent the written notice of charges and hearing, there was merely a general description of the claimed offenses of respondent. The hearing was immediately set in the afternoon of February 23, 1999the day respondent received the first notice. Therefore, he was not given any opportunity at all to consult a union official or lawyer, and, worse, to prepare for his defense. Regarding the February 23, 1999 afternoon hearing, respondent, without any lawyer or friend to counsel him, was not given any chance at all to adduce evidence in his defense. At most, he was asked if he did not agree to render overtime work on February 22, 1999 and if he was late for work for 197 days. He was never given any real opportunity to justify his inability to perform work on those days. This is the only explanation why petitioners assert that respondentadmitted all the charges. In the February 24, 1999 notice of dismissal, petitioners simply justified respondent ’s dismissal by citing his admission of the offenses charged. It did not specify the details surrounding the offenses and the specific company rule or Labor Code provision upon which the dismissal was grounded. In view of the infirmities in the proceedings, we conclude that termination of respondent was railroaded in serious breach of his right to due process.

ARMANDO ALILING v. JOSE B. FELICIANO, MANUEL F. SAN MATEO, JOSEPH R. LARIOSA, AND WIDE WIDE WORLD EXPRESS CORPORATION G.R. No. 185819, April 25, 2012, Velasco, Jr., J.

To justify the dismissal of an employee, the employer must prove that the dismissal was for just cause and that the employee was afforded due process prior to dismissal. The employer has the onus of proving with clear, accurate, consistent, and convincing evidence the validity of the dismissal. Facts: Armando Aliling and Wide Wide World Express Corporation (WWWEC) entered into an employment contract. Under the terms of the contract, Aliling’s regular status shall be determined on the basis of his performance. Barely a month after, Manuel F. San Mateo e-mailed Aliling to express dissatisfaction with the latter’s work performance. Joseph R. Lariosa sent a letter to Aliling to report to the Human Resources Department and explain his absence from September 20 to 25. Aliling responded two days after and denied being absent on such days, he presented his timesheet to prove his claim. Aliling’s explanation came with a query regarding the withholding of his salary from September 11 to 25. Later on, in a letter dated September 27, Aliling expressed his resignation. However, WWWEC failed to take action so Aliling requested for reinstatement. Lariosa replied on October 1 informing Aliling that his case is still in the process of being evaluated. Lariosa again wrote Aliling to advise him of the termination of his services due to non-satisfactory performance during his probation period. Aliling filed a case for illegal dismissal. The Labor Aribiter, NLRC, and CA ruled that Aliling was illegally dismissed because he was not informed, at the time of his engagement, of the reasonable standards under which he will qualify as a regular employee. Issue: Whether Armando Aliling was illegally dismissed Ruling:

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Yes. Lariosa’s letter betrayed management’s intention to dismiss the petitioner for alleged unauthorized absences. Aliling was in fact made to explain and he did so satisfactorily. But WWWEC nonetheless proceeded with its plan to dismiss the petitioner for non-satisfactory performance, although the ’s non-satisfactory performance, or that corresponding termination letter did not even specifically state Aliling Aliling’s termination was by reason of his failure to achieve his set quota. In order for the quota imposed to be ’s prerogative of fixing considered a valid productivity standard and thereby validate a dismissal, management the quota must be exercised in good faith for the advancement of its interest. The duty to prove good faith, however, rests with WWWEC as part of its burden to show that the dismissal was for a just cause. WWWEC must show that such quota was imposed in good faith. This WWWEC failed to do. WWWEC also failed to comply with procedural due process. The adverted memo dated September 20, 2004 of WWWEC supposedly informing Aliling of the likelihood of his termination and directing him to account for his failure to meet the expected job performance would have had constituted the charge sheet, sufficient to answer for the first notice requirement, but for the fact that there is no proof such letter had been sent to and received by him.

ALEXANDER B. BANARES v. TABACO WOMEN'S TRANSPORT SERVICE COOPERATIVE (TAWTRASCO), represented by DIR. RENOL BARCEBAL, ET AL. G.R. No. 197353, April 1, 2013, Velasco, Jr., J.

Reinstatement presupposes that there shall be no demotion in rank and/or diminution of salary, benefits and other privileges. If the position previously occupied no longer exists, the restoration shall be to a substantially equivalent position in terms of salary, benefits and other privileges. Facts: Banares was the general manager of Tabaco Women's Transport Service Cooperative (TAWTRASCO) until its management terminated his services. Banares filed a complaint for illegal dismissal and payment of monetary claims before the Labor Arbiter. Judgment is rendered declaring Banares to have been illegally dismissed. Eventually, the parties entered into a Compromise Agreement, in which petitioner waived a portion of his monetary claim, specifically his backwages. In turn, TAWTRASCO reinstated the petitioner. However, barely a week into his new assignment in Virac terminal, Banares has not reported for work. Banares in a letter-reply to management, stated that the reason for not reporting for work is that the reinstatement effected is an artificial kind of return-to-work order. Banares filed a complaint against TAWTRASCO for non-payment of salaries and withholding of privileges before the LA which was granted. TAWTRASCO appealed to the NLRC which dismissed the appeal. The CA on the other hand found TAWTRASCO to have fully reinstated Banares to his former post and that he abandoned his work when he stopped reporting to his Virac terminal assignment. Issue: 1.

Whether there is a genuine reinstatement of petitioner to his former position

2.

Whether petitioner’s refusal to report to work at the Virac terminal constitutes abandonment

Ruling: 1.

No. Management has a prerogative to transfer an employee from one office or station to another within the business establishment, as long as there is no resulting demotion or diminution of salary and other benefits and/or the action is not motivated by consideration less than fair or effected as a punishment or to get back at the reinstated employee. In this case, the "reinstatement" of Banares as

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 general manager of TAWTRASCO, was not a real,bona fide reinstatement in the context of the Labor Code and pertinent decisional law. First, TAWTRASCO directed Banares to report to the Virac terminal with duties and responsibilities not befitting a general manager of a transport company. Second, TAWTRASCO did not even provide him with a formal office space. 2.

No. For abandonment to exist, it is essential (1) that the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) that there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts. As reflected above, the reinstatement order has not been faithfully complied with. And varied but justifiable reasons obtain which made Banares’s work at the Virac terminal untenable. To reiterate, there was a lack of a viable office: no proper office space, no office furniture and equipment, no office supplies. This is not to mention Banares’s board and lodging privilege which he was d eprived of without explanation.

SMART COMMUNICATIONS, INC, MR. NAPOLEON L. NAZARENO, AND MR. RICKY P. ISLA v. JOSE LENI Z. SOLIDUM and JOSE LENI Z. SOLIDUMv. SMART COMMUNICATIONS, INC., MR. NAPOLEON L. NAZARENO, AND MR. RICKY P. ISLA G.R. Nos. 197836 and 197763, December 07, 2015, Velasco, Jr., J.

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. FACTS: Smart hired Solidum as Department Head of Smart Prepaid/Buddy Activations. Solidum later on received a Notice to Explain charging him with acts of dishonesty and breach of trust and confidence stating that he violated various company policies. He was charged with several offenses and was placed in preventive suspension for 30 days. In a letter, Soldium denied the charges against him. The continued audit investigation found that he was guilty for more offenses and thus, he was placed under preventive suspension again for 10 days. He was given an opportunity to present his stand as Smart sent the documents he requested so he can prepare an explanation but then he refused to accept them, thus, he was placed under an additional 10 days of preventive suspension. The company wished to remove him for breach and trust and confidence. A Notice of Termination was served on him. Solidum filed a complaint for illegal suspension and dismissal with money claims before the NLRC claiming his suspension and termination were without just cause and due process. The labor arbiter declared that the extended period of suspension without pay was illegal and that Solidum was unjustly dismissed from work without observance of procedural due process. He stated that the ground for his dismissal is untenable as Solidum is not a managerial employee. Smart appealed to the NLRC but it was denied for having been filed out of time. Smart, in its MR, claimed that they filed it on time as they received the Labor Arbiter’s decision at a later date. The NLRC granted the motion. The NLRC reversed the labor arbiter’s decision which the CA affirmed. ISSUE: (1) Whether Solidum’s 2nd preventive suspesion is valid (2) Whether Solidum is a managerial employee and can be validly dismissed for loss of trust and confidence. RULING: (1) Yes. The 2nd preventive suspension is valid

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 While the Omnibus Rules limits the period of preventive suspension to thirty (30) days, such time frame pertains only to one offense by the employee. However, if the employee is charged with another offense, then the employer is entitled to impose a preventive suspension not to exceed 30 days specifically for the new infraction. A fresh preventive suspension can be imposed for a separate or distinct offense. An employer is well within its rights to preventively suspend an employee for other wrongdoings that may be later discovered while the first investigation is ongoing. (2) Yes. Solidum is a managerial employee. Solidum denies that he is a managerial employee by stating that just because he directed subordinates and had a large salary, it does not mean that he was a managerial employee. Solidum denies having the power to lay down and execute management policies. However, Solidum does not deny having "the authority to devise, implement and control strategic and operational policies of the Department he was then heading." This is clearly the authority to lay down and execute management policies. The CA affirmed these findings. Thus, the NLRC and the CA correctly found that Solidum was a managerial employee. As such, he may be validly dismissed for loss of trust and confidence.

EXOCET SECURITY AND ALLIED SERVICES CORPORATION AND/OR MA. TERESA MARCELO v. ARMANDO D. SERRANO G.R. No. 198538, S eptember 29, 2014, Velasco Jr., J. Temporary “off-detail” or the period of time security guards are made to wait until they are transferred or assigned to a new post or client does not constitute constructive dismissal, so long as such status does not exceed six months. Facts: Exocet is engaged in providing security personnel to its clients. By virtue of its contract with JG Summit, Exocet assigned Armando Serrano as close-in security for various officers. 11 years after, Serrano was relieved by JG Summit. For more than six months after he reported back to Exocet, Serrano was without any re-assignment. Serrano then filed a complaint for illegal dismissal against Exocet with the NLRC. The Labor Arbiter found that Serrano, while not actually dismissed, was placed on a floating status for more than six months and so, was deemed constructively dismissed. Acting on Exocet’s motion for reconsideration, the NLRC deviated, finding that Serrano’s termination was due to his own fault and failure to accept a re-assignment. The NLRC removed the award for backwages but proceeded to affirm in toto the decision of the Labor Arbiter. The CA however, found Serrano to have been constructively dismissed. Issue: Whether Serrano was constructively dismissed Ruling: No. The floating status situation was considered by this Court as a form of temporary retrenchment or lay-off. It is that period when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The Court has applied Article 292 of the Labor Code by analogy to set the period of temporary lay-off to a maximum of six months. Consequently, the DOLE issued DO 14-01, providing in Section 6.5 in relation to Sec. 9.3, that the lack of service assignment for a continuous period of six months is an authorized cause for the termination of the employee, who is then entitled to a separation pay equivalent to half month pay for every year of service. The Employer shall still serve a written notice on Serrano and the DOLE one month before the intended date of termination. However, Serrano’s lack of assignment for more than six months cannot be attributed to Exocet because the latter had already offered Serrano a position in the general security service since there were no available clients requiring positions for VIP security. It was only Serrano who declined the position because it was not the post that suited his preference.

S.S. VENTURES INTERNATIONAL, INC.v. S.S. VENTURES LABOR UNION AND DIRECTOR HANS LEO CACDAC, IN HIS CAPACITY AS DIRECTOR OF THE BUREAU OF LABOR RELATIONS G.R. No. 161690, July 23, 2008, Velasco, Jr., J.

To decertify a union, it is not enough to show that the union includes ineligible employees in its membership. It must also be shown that there was misrepresentation, false statement, or fraud in connection with the application for registration and the supporting documents, such as the adoption or ratification of the constitution and by-laws or amendments thereto and the minutes of ratification of the constitution or by-laws, among other documents. Facts: On March 21, 2000, S.S. Ventures Labor Union (Union) filed a petition for certification election in behalf of the rank-and-file employees of S.S. Ventures with the DOLE. Of the 542 signatures, 82 of which belong to terminated SS Ventures employees on the basic documents supporting the petition. The certification election was successful and the Union obtained a Certificate of Registration. On August 21, 2000, SS Ventures sought to cancel the Union’s Certificate of Registration alleging that the 82 signatures belonging to terminated employees were obtained through fraud, and misrepresentation. Issue: Whether the Union’s Certificate of Registration must be cancelled Ruling: No. According to Art. 239(a) of the Labor Code, the grounds for cancellation of Certificate of Registration of a Union is the commission of Fraud and Misrepresentation in connection with the adoption or ratification of the Union’s constitution and like documents. After a labor organization has filed the necessary registration documents, it becomes mandatory for the Bureau of Labor Relations to check if the requirements under Art. 234 of the Labor Code have been complied with. The issuance to the Union of Certificate of Registration necessarily implies that its application for registration and the supporting documents thereof areprima facie free from any vitiating irregularities.

EAGLE RIDGE GOLF & COUNTRY CLUBv. COURT OF APPEALS and EAGLE RIDGE EMPLOYEES UNION (EREU) G.R. No. 178989, March 18, 2010, Velasco, Jr., J.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Any seeming infirmity in the application and admission of union membership, most especially in cases of independent labor unions, must be viewed in favor of valid membership. Facts: Eagle Ridge Employees Union (EREU) filed a petition for certification election. The employer opposed the petition on the ground of misrepresentation and fraud in connection with the adoption of its constitution and the numerical composition of the union. The employer alleges that EREU declared having 30 members in the application when the minutes only show 26 members. It also alleged that one signature in the ratified constitution was forged. The employer further contended that five employees already withdrew from the union. EREU, on the other hand, asserts bona fide compliance with the registration requirements. Issue: Whether there was fraud in the application of the union Ruling: No. The members of the EREU totaled 30 employees when it applied on December 19, 2005 for registration. The Union complied with the mandatory minimum 20% membership requirement under Art. 234(c). The Union has sufficiently explained the discrepancy between the number of those who attended the organizational meeting showing 26 employees and the list of union members showing 30. The difference is due to the additional four members admitted two days after the organizational meeting as attested to by their duly accomplished Union Membership forms. Consequently, the total number of union members, as of December 8, 2005, was 30, which was truthfully indicated in its application for registration on December 19, 2005. As aptly found by the BLR Director, the Union already had 30 members when it applied for registration, for the admission of new members is neither prohibited by law nor was it concealed in its application for registration.Eagle Ridge’s contention is flawed when it equated the requirements under Art. 234(b) and (c) of the Labor Code. Par. (b) clearly required the submission of the minutes of the organizational meetings and the list of workers who participated in the meetings, while par. (c) merely required the list of names of all the union members comprising at least 20% of the bargaining unit. The fact that EREU had 30 members when it applied for registration on December 19, 2005 while only 26 actually participated in the organizational meeting is borne by the records. The right of employees to self-organization and membership in a union must not be trammeled by undue difficulties. When the Union said that the four employee-applicants had been admitted as union members, it is enough to establish the fact of admission of the four that they had duly signified such desire by accomplishing the membership form. The fact that the Union owing to its scant membership, had not yet fully organized its different committees evidently shows the direct and valid acceptance of the four employee applicants rather than deter their admission as erroneously asserted by Eagle Ridge.

ALABANG COUNTRY CLUB, INC. v. NATIONAL LABOR RELATIONS COMMISSION, ALABANG COUNTRY CLUB INDEPENDENT EMPLOYEES UNION, CHRISTOPHER PIZARRO, MICHAEL BRAZA, and NOLASCO CASTUERAS G.R. No. 170287, February 14, 2008, J. Velasco, Jr.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: (1) the union security clause is applicable; (2) the union is requesting for the enforcement of the union security provision in the CBA; and (3) there is sufficient evidence to support the union’s decision to expel the employee from the union. These requisites constitute just cause for terminating an employee based on the CBA’s union security provision. Facts: Pizarro, Braza and Castueras were officers of Alabang Country Club Union. They were expelled from the union for alleged malversation of union funds. The union invoked the Security Clause of the CBA which provided for a maintenance of membership shop, and demanded that the Club dismiss private respondents. The Club required the three respondents to show cause in writing, and called private respondents for an informal conference inquiring about the charges against them. Nonetheless, after weighing the verbal and written explanations, the Club dismissed private respondents. Private respondents challenged their dismissal in an illegal dismissal complaint. Issue: Whether respondents were illegally dismissed Ruling: No The three respondents were expelled from the after due investigation for malversation of Union funds. The Union properly requested the Club to terminate respondents.n Icompliance with the Union’s request, the Club reviewed the documents submitted by the Union, requested said respondents to submit written explanations, and afforded them reasonable opportunity to present their side. After it had determined that there was sufficient evidence, the Club dismissed them from their employment.

UNIVERSITY OF SANTO TOMAS FACULTY UNIONv. UNIVERSITY OF SANTO TOMAS, REV. FR. ROLANDO DE LA ROSA, REV. FR. RODELIO ALIGAN, DOMINGO LEGASPI, and MERCEDES HINAYON G.R. No. 180892, April 7, 2009, Velasco, Jr., J.

Whether the employee or employer alleges that the other party committed ULP, it is the burden of the alleging party to prove such allegation with substantial evidence. Such principle finds justification in the fact that ULP is punishable with both civil and/or criminal sanctions. Facts: Two groups were claiming to be the University of Santo Tomas Faculty Union (USTFU): the Gamilla Group and Mariño Group. The latter is led by Atty. Eduardo J. Mariño, Jr., the incumbent president of the union while the former is led by Gil Gamilla who was elected as its president during a convocation held on October 4, 1996. The Mariño Group filed a complaint for ULP against the UST with the Arbitration Branch of the NLRC. It also filed a complaint with the Office of the Med-Arbiter of the DOLE praying for the nullification of the election of the Gamilla Group as officers of the USTFU. The said election was declared null and void. On the other hand, the Arbitration Branch of the NLRC issued a decision dismissing the complaint on the ground that USTFU failed to establish with clear and convincing evidence that indeed UST was guilty of ULP. The acts of UST which USTFU complained of as ULP were the following: (1) allegedly calling for a convocation of faculty members which turned out to be an election of officers for the faculty union; (2) subsequently dealing with the Gamilla Group in establishing a new CBA; and (3) the assistance to the Gamilla Group in padlocking the USTFU office.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Issue: Whether UST is guilty of unfair labor practice Ruling: No. Whether the employee or employer alleges that the other party committed ULP, it is the burden of the alleging party to prove such allegation with substantial evidence. Such principle finds justification in the fact that ULP is punishable with both civil and/or criminal sanctions. The Memorandum issued by the Secretary General of UST does not support a claim that UST organized the convocation in connivance with the Gamilla Group. In no way can the contents of this memorandum be interpreted to mean that faculty members were required to attend the convocation. Respondents could not have been expected to stop dealing with the Gamilla Group on the mere accusation of the Mariño Group that the former was not validly elected into office. As the CA ruled correctly, until the validity of the election of the Gamilla Group is resolved with finality, respondents could not be faulted for negotiating with said group. As to the padlocking of the USTFU office, the mere presence of Justino Cardenas, Detachment Commander of the security agency contracted by the UST, cannot be equated to a positive act of "aiding" the Gamilla Group in securing the USTFU office. Petitioner makes several allegations that UST committed ULP. Theonus probandi falls on the shoulders of petitioner to establish or substantiate such claims by the requisite quantum of evidence. In labor cases as in other administrative proceedings, substantial evidence or such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion is required. In the petition at bar, petitioner miserably failed to adduce substantial evidence as basis for the grant of relief.

TOYOTA MOTOR PHILS. CORP. WORKERS ASSOCIATION (TMPCWA)v. NATIONAL LABOR RELATIONS COMMISSION, (NLRC-2ND DIVISION), HON. COMMISSIONERS: VICTORINO CALAYCAY, ANGELITA GACUTAN, and RAUL AQUINO, TOYOTA MOTOR PHILIPPINES CORPORATION, TAKESHI FUKUDA, and DAVID GO G.R. Nos. 158798-99, October 19, 2007, Velasco, Jr., J.

Noted authority on labor law, Ludwig Teller, lists six (6) categories of an illegal strike, viz: (1) [when it] is contrary to a specific prohibition of law, such as strike by employees performing governmental functions; or (2) [when it] violates a specific requirement of law[, such as Article 263 of the Labor Code on the requisites of a valid strike]; or (3) [when it] is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; or (4) [when it] employs unlawful means in the pursuit of its objective, such as a widespread terrorism of non-strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or (5) [when it] is declared in violation of an existing injunction[, such as injunction, prohibition, or order issued by the DOLE Secretary and the NLRC under Art. 263 of the Labor Code]; or (6) [when it] is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause. Facts: TMPCWA filed a petition for certificate election among the rank-and-file employees of Toyota Motor Phil. Corp (TMPC), herein private respondent with the National Conciliation and Mediation Board (NCMB) to be considered its sole and legitimate Union of TMPC. The NCMB decided in favor of TMPCWA. TMPC appealed to the DOLE Secretary. During the pendency of the appeal, TMPCWA submitted its CBA proposals to TMPC but the latter refused to negotiate on the ground that there is a pending appeal as regards the legality of being the

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 sole and legitimate union of TMPCWA on behalf of TMPC’s employees. This prompted TMPCWA to ho ld numerous strikes which resulted to huge losses on the part of TMPC. This prompted TMPC to file a petition to declare the strike illegal against TMPCWA with the NLRC praying that the erring Union members be dismissed from employment. The NLRC held for TMPC. On appeal with the CA, the CA affirmed the decision of the NLRC. Now, TMPCWA assails the decision of the CA on the ground that the strikes and protest undertaken by TMPCWA was an exercise of their constitutional right to peaceably assemble and to petition the government for redress of grievances. Hence this petition. Issue: Whether the strikes undertaken by TMPCWA were legal Ruling: No. The Union’s position is weakened by the lack of permit from the City of Manila to hold rallies. Shrouded as demonstrations, they were in reality temporary stoppages of work perpetrated through the concerted action of the employees who deliberately failed to report for work on the excuse that they will hold a rally at the BLR and DOLE offices. The purported reason for these protest actions was to safeguard their rights against any abuse which the med-arbiter may commit against their cause. However, the Union failed to advance proof that the med-arbiter was biased against them. The acts of the med-arbiter in the performance of his duties are presumed regular. The decision not to work for two days was calculated to cripple the manufacturing arm of Toyota. The ultimate goal of the Union is to coerce Toyota to acknowledge the Union as the sole bargaining agent of the company. The Union failed to comply with the following requirements: (1) a notice of strike filed with the DOLE 30 days before the intended date of strike, or 15 days in case of unfair labor practice; (2) strike vote approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose; and (3) notice given to the DOLE of the results of the voting at least seven days before the intended strike. These requirements are mandatory and the failure of a union to comply with them renders the strike illegal. The intention of the law in requiring the strike notice and the strike-vote report is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law. NATIONAL UNION OF WORKERS IN THE HOTEL RESTAURANT AND ALLIED INDUSTRIES (NUWHRAINAPL-IUF) DUSIT HOTEL NIKKO CHAPTER v. THE HONORABLE COURT OF APPEALS (Former Eighth Division), THE NATIONAL LABOR RELATIONS COMMISSION (NLRC), PHILIPPINE HOTELIERS INC., owner and operator of DUSIT HOTEL NIKKO and/or CHIYUKI FUJIMOTO, and ESPERANZA V. ALVEZ G.R. No. 163942, November 11, 2008 , Velasco, Jr., J.

Public officials entrusted with specific jurisdictions enjoy great confidence from this Court. The Secretary surely meant only to ensure industrial peace as she assumed jurisdiction over the labor dispute. In this case, we are not ready to substitute our own findings in the absence of a clear showing of grave abuse of discretion on her part. Facts: National Union of Workers in the Hotel Restaurant and Allied Industries Dusit Hotel Nikko Chapter (Union) is the certified bargaining agent of the regular rank-and-file employees of Dusit Hotel Nikko (Hotel). The Union submitted its CBA negotiation proposals to the Hotel but the parties failed to arrive at mutually acceptable terms and conditions. Due to the bargaining deadlock and unsuccessful conciliation, a strike vote was conducted by the Union on which it decided that it would wage a strike.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The Union held a general assembly where some members sported closely cropped hair or cleanly shaven heads. The next day more male Union members came to work sporting the same hair style. The Hotel prevented these workers from entering the premises claiming that they violated the Hotel's Grooming Standards. In view of the Hotel's action, the Union staged a picket outside the Hotel premises. For this reason the Hotel experienced a severe lack of manpower which forced them to temporarily cease operations in three restaurants. The Hotel issued notices to Union members, preventively suspending them and subsequently dismissing them for violation of the duty to bargain in good faith and violation of the Hotel's Grooming Standards and commission of illegal acts during the illegal strike. The Union filed with the NCMB a Notice of Strike on the ground of unfair labor practice and union-busting. The Secretary assumed jurisdiction over the labor dispute and certified the case to the NLRC for compulsory arbitration. The NLRC held that the concerted action was an illegal strike in which illegal acts were committed by the Union. The CA affirmed the rulings of the NLRC. Issue: Whether the Union conducted an illegal strike Ruling: Yes. Art. 212(o) of the Labor Code defines a strike as "any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute." In Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commission (G.R. Nos. 158798-99, October 19, 2007), we cited the various categories of an illegal strike, to wit: (1) when it is contrary to a specific prohibition of law, such as strike by employees performing governmental functions; or (2) when it violates a specific requirement of law, [such as Article 263 of the Labor Code on the requisites of a valid strike]; or (3) when it is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; or (4) when it employs unlawful means in the pursuit of its objective, such as a widespread terrorism of non-strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or (5) when it is declared in violation of an existing injunction, [such as injunction, prohibition, or order issued by the DOLE Secretary and the NLRC under Art. 263 of the Labor Code]; or (6) when it is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause. With the foregoing parameters as guide and the following grounds as basis, we hold that the Union is liable for conducting an illegal strike for the following reasons:

First, the Union's violation of the Hotel's Grooming Standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the Hotel and was, therefore, not a protected action. The appearances of the Hotel employees directly reflect the character and well-being of the Hotel, being a five-star hotel that provides service to top-notch clients. In view of the Union's collaborative effort to violate the Hotel's Grooming Standards, it succeeded in forcing the Hotel to choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments or service units, which in either way would disrupt the operations of the Hotel. The act of the Union was not merely an expression of their grievance or displeasure but, indeed, a calibrated and calculated act designed to inflict serious damage to the Hotel's finances or its reputation. The Union's concerted violation of the Hotel's Grooming Standards which resulted in the temporary cessation and disruption of the Hotel's operations is an unprotected act and should be considered as an illegal strike.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Second, the Union's concerted action which disrupted the Hotel's operations clearly violated the CBA's "No Strike, No Lockout" provision. The facts are clear that the strike arose out of a bargaining deadlock in the CBA negotiations with the Hotel. The concerted action is an economic strike upon which the aforequoted "no strike/work stoppage and lockout" prohibition is squarely applicable and legally binding. Third, the Union officers and members' concerted action to shave their heads and crop their hair not only violated the Hotel's Grooming Standards but also violated the Union's duty and responsibility to bargain in good faith.

MADGALA MULTIPURPOSE & LIVELIHOOD COOPERATIVEv. KILUSANG MANGGAGAWA NG LGS G.R. No. 191138-39, October 19, 2011 Velasco, Jr., J.

For union officers, knowingly participating in a n illegal strike is a valid ground for termination of their employment. But for union members who participated in a strike, their employment may be terminated only if they committed illegal acts during the strike and there is substantial proof of their participation. Facts: Kilusang Manggagawa ng LGS, Magdala Multipurpose and Livelihood Cooperative (KMLMS) is the union operating in Magdala Multipurpose & Livelihood Cooperative and Sanlor Motors Corp. KMLMS filed a notice of strike on March 5, 2002 and conducted its strike-vote on April 8, 2002. However, KMLMS only acquired legal personality when its registration as an independent labor organization was granted on April 9, 2002. Thereafter, on May 6, 2002, KMLMS, now a legitimate labor organization (LLO) staged a strike where several prohibited and illegal acts were committed by its participating members. On the ground of lack of valid notice of strike, ineffective conduct of a strike-vote and commission of prohibited and illegal acts, petitioners filed their Petition to Declare the Strike of May 6, 2002 Illegal before the NLRC Regional Arbitration Board (RAB) and prayed that the officers and members of respondent KMLMS who participated in the illegal strike and who knowingly committed prohibited and illegal activities, respectively, be declared to have lost or forfeited their employment status. LA, NLRC, and CA ruled in favor of petitioners but ruled that only 34 workers to have lost their employment status. Issue: Whether the CA erred in refusing to declare as having lost their employment status the rest of the union strikers who have participated in the illegal strike and committed illegal acts Ruling: Yes. The May 6, 2002 strike was illegal,first, because when KMLMS filed the notice of strike on March 5 or 14, 2002, it had not yet acquired legal personality and, thus, could not legally represent the eventual union and its members. Andsecond, similarly when KMLMS conducted the strike-vote on April 8, 2002, there was still no union to speak of, since KMLMS only acquired legal personality as an independent LLO only on April 9, 2002 or the day after it conducted the strike-vote. In refusing to declare the other strikers as dismissed, the appellate court found that not all of the photographs in evidence sufficiently show the strikers committing illegal acts and that the identification of said strikers is questionable considering that some were still identified even when their faces were

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 indiscernible from the photographs. We, however, cannot agree with the appellate court ’s view that there is no substantial proof of the identity of the other 72 striking union members who committed prohibited and illegal activities. The prohibited and illegal acts are undisputed. It is only the identity of the striking union workers who committed said acts that is the crux of the partial modification prayed for by petitioners. The petitioners have substantially proved the identity of 72 other union members who committed prohibited and illegal acts during the May 6, 2002 illegal strike, thus:

First, the photographs submitted by petitioners show the identities of the union members who committed prohibited and illegal acts. Second, the identities of these union members were substantially proved through the eyewitness of petitioners who personally knew and recognized them. Thus, the identities of these 72 other union members who participated in the strike and committed prohibited and illegal acts are not only shown through the photographs, but are also sufficiently supported, as earlier cited, by police blotter certifications, a criminal complaint for grave coercion, and affidavits of several workers and a proprietor. Absent any exculpating circumstance, they must all suffer the same fate with the statutorily provided consequence of termination of employment.

MARTICIO SEMBLANTE and DUBRICK PILARv. COURT OF APPEALS, 19th DIVISION, now SPECIAL FORMER 19th DIVISION, GALLERA DE MANDAUE / SPOUSES VICENTE and MARIA LUISA LOOT G.R. No. 196426, August 15, 2011, Velasco, Jr., J.

The posting of a bond is indispensable to the perfection of an appeal in cases involving monetary awards from the Labor Arbiter’s decision. However, the rule may be relaxed considering the substantial merits of the case and to prevent miscarriage of justice. Facts: Marticio Semblante and Dubrick Pilar filed a complaint for illegal dismissal against Spouses Vicente and Maria Luisa Loot. They alleged that they were hired as the official masiador and sentenciador of the cockpit in 1993. However, in 2003, they were denied entry. Respondents denied that petitioners were their employees and alleged that they were associates of respondents’ independent contractor, Tomas Vega. They claimed that petitioners have no regular working time or day and that they are free to decide for themselves whether to report for work or not. They were only issued identification cards to indicate that they were free from the normal entrance fee. On June 16, 2004, the Labor Arbiter ruled that petitioners were illegally dismissed. Respondents’ counsel received the decision on September 14, 2004 and within the 10 -day appeal period, he filed the respondents’ appeal with the NLRC, but without posting a cash or surety bond. It was only on October 11, 2004 that respondents filed an appeal bond. NLRC initially denied but subsequently reversed itself on the postulate that the appeal was meritorious and the filing of an appeal bond, although belated, is a substantial compliance with the law. The CA ruled that an exceptional circumstance obtains in the case at bench which warrants a relaxation of the bond requirement as a condition for perfecting the appeal. Issue: Whether the CA correctly entertained the appeal although the appeal bond was filed late Ruling: Yes. While respondents had failed to post their bond within the 10-day period, it is evident that petitioners are NOT employees of respondents. Respondents could never have dismissed petitioners, legally

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 or illegally, since respondents were without power or prerogative to do so because they are not petitioners’ employers. The rule on the posting of an appeal bond cannot defeat the substantive rights of respondents to be free from an unwarranted burden of answering for an illegal dismissal for which they were never responsible.

ROSALES v. NEW A.N.J.H. ENTERPRISES G.R. No. 203355, August 18, 2015, Velasco Jr., J.

The NLRC has wide discretion in determining the reasonableness of the bond for purposes of perfecting an appeal. Facts: Petitioners filed a complaint for illegal dismissal, with NLRC Regional Arbitration alleging in their complaint that while New ANJH stopped its operations, it resumed its operations as NH Oil using the same machineries and with the same owners and management, thus, in circumvention of their security of tenure. Executive Labor Arbiter Santos (ELA Santos) found that petitioners had been illegally dismissed and ordered their reinstatement and the payment of PHP1,006,045.87 corresponding to the petitioners’ full backwages less the amount paid to them as their respective “separation pay.” Respondents filed their Notice of Appeal with Appeal Memorandum along with a Verified Motion to Reduce Bond with the NLRC and posted 60% of the award ordered by the LA, or PHP 603,627.52, as their appeal bond. The NLRC denied respondents’ Verified Motion to Reduce Bond for lack of merit and so dismissing their appeal for non-perfection, prompting respondents to file a Motion for Reconsideration with Motion to Admit Additional Appeal Cash Bond with corresponding payment of additional cash bond but the same was denied. Hence, petitioners filed a petition for certiorari with the CA. The CA held that private respondents had substantially complied with the rule requiring the posting of an appeal bond equivalent to the total award given to the employees. Issue: Whether there was substantial compliance with the rule requiring the posting of an appeal bond Ruling: Yes. On the issue of perfecting the appeal, the CA was correct when it pointed out that Rule VI of the New Rules of Procedure of the NLRC provides that a motion to reduce bond shall be entertained “upon the posting of a bond in a reasonable amount in relation to the monetary award.” In Garcia v. KJ Commercial (G.R. No. 196830, February 29, 2012),the SC explained: The NLRC has full discretion to grant or deny the motion to reduce bond, and it may rule on the motion beyond the 10-day period within which to perfect an appeal. In order to give full effect to the provisions on motion to reduce bond, the appellant must be allowed to wait for the ruling of the NLRC on the motion even beyond the 10-day period to perfect an appeal. If the NLRC grants the motion and rules that there is indeed meritorious ground and that the amount of the bond posted is reasonable, then the appeal is perfected. If the NLRC denies the motion, the appellant may still file a motion for reconsideration as provided under Section 15, Rule VII of the Rules. If the NLRC grants the motion for reconsideration and rules that there is indeed meritorious ground and that the amount of the bond posted is reasonable, then the appeal is perfected. If the NLRC denies the motion, then the decision of the labor arbiter becomes final and executory. In any case, the rule that the filing of a motion to reduce bond shall not stop the running of the period to perfect an appeal is not absolute.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The Court may relax the rule under certain exceptional circumstances in order to resolve controversies on their merits. These circumstances include: (1) fundamental consideration of substantial justice; (2) prevention of miscarriage of justice or of unjust enrichment; and (3) special circumstances of the case combined with its legal merits, and the amount and the issue involved.” In this case, the NLRC had reconsidered its srcinal position and declared that the 60% bond was reasonable given the merits of the justification provided by respondents in their Motion to Reduce Bond, as supplemented by their Motion for Reconsideration with Motion to Admit Additional Appeal Cash Bond. The CA affirmed the merits of the grounds cited by respondents in their motions and the reasonableness of the bond srcinally posted by respondents. This is in accord with the guidelines established in McBurnie v. Ganzon (G.R. Nos. 178034 & 178117 G R. Nos. 186984-85, October 17, 2013)where this Court declared that the posting of a provisional cash or surety bond equivalent to ten percent (10%) of the monetary award subject of the appeal is sufficient provided that there is meritorious ground therefor.

ESTRELLITA G. SALAZAR v. PHILIPPINE DUPLICATORS, INC., and /or LEONORA FONTANILLA G.R. No. 154628, December 6, 2006, Velasco, Jr., J.

The NLRC, in aid of its exclusive appellate jurisdiction, has the authority under Article 218 (d) of the Labor Code to correct or amend any error committed by a labor arbiter. Facts: Salazar was terminated from her employment due to alleged falsification of company records. Salazar denies receiving Duplicators’ termination letter. The Labor Arbiter held that the dismissal was for a just cause but the company breached the twin-notice requirement as provided by law. It ordered Duplicators to pay the indemnity of PhP10,000. However, on appeal, the NLRC ruled that there was no dismissal but due to strained relationship, Duplicators is liable to pay separation pay instead of paying the indemnity imposed by the LA. Salazar now questions the deletion of the indemnity. Salazar claims that the NLRC should not have deleted the award of indemnity in her favor since both Duplicators and Fontanilla did not interpose any appeal from the Decision of Labor Arbiter Caday and hence, no affirmative relief could be granted to said respondents. Issue: Whether the NLRC violated the rule in labor cases that an appellee cannot be awarded any affirmative relief Ruling: No. Petitioner's first ground in her Memorandum of Appeal before the NLRC stated that Labor Arbiter Caday's ruling that she was not illegally dismissed was erroneous. In resolving this issue, the NLRC overturned Caday's finding of petitioner’s valid dismissal, and instead concluded that there was no termination of petitioner’s employment. As a consequence, the NLRC had to recall the award of PhP10,000.00 indemnity imposed by Arbiter Caday although not prayed for by Duplicators since the said award was inconsistent with the finding that petitioner’s employment subsisted. Without petitioner’s dismissal, there can be no legal basis for the indemnity; hence, Duplicators is not obliged to comply with the two-notice requirement. Petitioner has no reason to complain that she was deprived of monetary benefits since the NLRC’s Decision did not actually benefit Duplicators as the PhP14,095.76 separation pay granted to petitioner is certainly greater than the PhP10,000.00 indemnity deleted by the NLRC.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016

ROSALES v. NEW A.N.J.H. ENTERPRISES G.R. No. 203355, August 18, 2015, Velasco Jr. J.

Res Judicata does not bar the filing of complaints for illegal dismissal. Facts: Due to alleged dwindling capital, respondent wrote the Director of the DOLE Region IV-A a letter regarding New ANJH’s impending cessation of operations and the sale of its assets to respondent NH Oil Mill Corporation, as well as the termination of thirty-three (33) employees by reason thereof. Petitioners received their respective separation pays, signed the corresponding check vouchers and executed Quitclaims and Release before Labor Arbiter Melchisedek A. Guan(LA Guan). LA Guan then declared the “labor dispute” between New ANJH and petitioners as “dismissed with prejudice on ground of settlement.” Petitioners however, filed a complaint for illegal dismissal, with NLRC Regional Arbitration alleging in their complaint that while New ANJH stopped its operations, it resumed its operations as NH Oil using the same machineries and with the same owners and management, thus, in circumvention of their security of tenure. Executive Labor Arbiter Generoso V. Santos (ELA Santos) found that petitioners had been illegally dismissed and ordered their reinstatement and payment of full backwages less the amount paid to them as their respective “separation pay.” In a Resolution, the NLRC reversed its earlier Decision and ordered the dismissal of petitioners’ complaint on the ground that it was barred by the Orders issued by LA Guan under the doctrine of res judicata. Hence, petitioners filed a petition for certiorari with the CA.The CA declared that the petitioners’ complaint f or illegal dismissal was already barred byres judicata. Issue: Whether the complaint for illegal dismissal was already barred by res judicata Ruling: No. For res judicata to apply, the concurrence of the following requisites must be verified: (1) the former judgment is final; (2) it is rendered by a court having jurisdiction over the subject matter and the parties; (3) it is a judgment or an order on the merits; (4) there —between is the first and the second actions—identity of parties, of subject matter, and of causes of action. The third requisite is not present. The Orders rendered by LA Guan cannot be considered as constituting a judgment on the merits. The Orders simply manifest that petitioners “are amenable to the computations made by the company respecting their separation pay.” Nothing more. They do not clearly state the petitioners’ right or New ANJH’s corresponding duty as a result of the termination. The fourth requisite is also absent. While there may be substantial identity of the parties, there is no identity of subject matter or cause of action. In SME Bank, Inc. v. De Guzman (G.R. No. 184517, October 8, 2013), the SC held that the acceptance of separation pay is an issue distinct from the nformity of the employees to the corporation’s act of legality of the dismissal of the employees. The co considering them as terminated and their subsequent acceptance of separation pay does not remove the taint of illegal dismissal. Acceptance of separation pay does not bar the employees from subsequently contesting the legality of their dismissal, nor does it bar them from challenging the legality of their separation from the service. In the absence of the third and fourth requisites, the appellate court should have proceede d to rule on the validity of petitioners’ termination.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 DAIKOKU ELECTRONICS PHILS., INCv. ALBERTO J. RAZA G.R. No. 181688, June 5, 2009, Velasco, Jr., J.

Motions for reconsideration of any decision, resolution or order of the NLRC should be filed within ten calendar days from receipt of decision. Facts: Daikoku hired respondent Alberto J. Raza as company driver, eventually assigning him to serve as personal driver to its president, Mamuro Ono. Alberto, after being let off by Ono, took the company vehicle to his own place in Makati City. When asked where he parked the car the night before Alberto lied. Alberto thereafter received a show-cause notice. He submitted his written explanation of the incident, apologizing and expressing his regret. Daikoku’s General Affairs Manager ordered Alberto dismissed from the service. Dishonesty and other work related performance offenses appeared in the corresponding notice of termination as grounds for the dismissal action. The Labor Arbiter ordered Daikoku to reinstate Alberto and to pay backwages. On appeal, the NLRC dismissed Daikoku ’s appeal for failure to perfect it in the manner and formalities prescribed by law but reinstated the same on Daikoku’s motion for reconsideration on May 31, 2006. However, for Daikoku’s failure to reinstate Alberto pending appeal, the NLRC ordered the payment of Alberto’s backwages. The CA denied Daikoku’s appeal. Issue: Whether Daikoku’s motion for reconsideration was belatedly filed Ruling: Yes. Daikoku admitted receiving a copy of the May 31, 2006 NLRC resolution on June 16, 2006, however he only filed its motion for reconsideration on July 3, 2006, or 17 days after the receipt. As provided in Section 15, Rule VII of the NLRC 2005 Rules of Procedure, motions for reconsideration of any decision, resolution or order of the Commission should be filed within ten calendar days from receipt of decision. Procedural rules may be relaxed but only on valid and compelling reasons. The bare invocation of the interest of substantial justice line is not some magic wand that will automatically compel the Court to suspend the procedural rules. Procedural rules are not to be belittled, let alone dismissed simply because their nonobservance may have resulted in prejudice to a party’s substantial rights. Utter d isregard of the rules cannot be justly rationalized by harping on the policy of liberal construction.

TEMIC SEMICONDUCTORS, INC. EMPLOYEES UNION-FFW,et al. v. FEDERATION OF FREE WORKERS,et al. G.R. No. 160993, May 20, 2008, Velasco, Jr., J.

TSIEU and Dimaano never raised the issue of any monetary or property claims before the Office of the NCR-RD and before the proceedings with the Hearing Officer. Much less did they raise this issue on appeal before the BLR when such was not granted. TSIEU and Dimaano's failure to do so is fatal to its claims insofar as the enforcement of the appealed order is concerned. They cannot now assert such claims in the enforcement of said final and executory order. FACTS: TSIEU is the accredited bargaining agent for rank-and-file employees of Temic Telefunken Microelectronics (Phils.), Inc. and is an affiliate of the Federation of Free Workers (FFW). During the

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 incumbency of Dimaano as president of TSIEU, the collective bargaining negotiations resulted in a deadlock which prompted the Dimaano-led union to hold a strike. The Secretary of DOLE issued a return-to-work order, leading to a split between employee-union members who returned to work and those who continued to strike, as led by Olivia Robles and Dimaano, respectively. The two groups of TSIEU conducted separate elections where in Robles and Dimaano were elected by their respective factions. The result of both elections were communicated to the National Capital Region Regional Director (NCR-RD) of the Bureau of Labor Relations (BLR), but only the election result of TSIEUDimaano were noted and certified by the Vice President for Political Affairs of FFW. The governing board of FFW, in an emergency meeting, decided to place TSIEU under its receivership, despite Dimaano’s objection as a member of the same and on the ground that the twin elections resulted in a crisis of leadership. Dimaano resigned from all of her positions in the FFW. TSIEU and Dimaano filed the instant case against FFW before the NCR-RD of the BLR for Declaration of Nullity of Receivership. The RD granted the same on the ground that FFW had noauthority to put TSIEU under receivership. The appeal before the BLR was dismissed. The BLR’s res olution became final and executory and a writ of execution was issued on September 18, 2000. The NCR RD of BLR issued an order directing the sheriffs to lift the notices of garnishment on the ground that there was a need for prior determination of the actual amounts due to TSIEU. Later on, the BLR voided its prior writ of execution and notices of garnishment. The CA affirmed the BLR resolution. ISSUE: Whether the writ of execution granting the turnover of properties and remittance of monetary claims was within the terms of the final and executory order sought to be enforced RULING: No. The receivership of TSIEU ordered by private respondents has been duly nullified. The bone of contention is: What level does the declaration of nullity of receivership extend? A scrutiny of the March 24, 1998 Order of the NCR RD clearly bears out that what had been granted thereat was the nullification of the receivership of TSIEU by FFW, no more and no less. The fallo of the March 24, 1998 Order unequivocally granted merely the nullification of the receivership. The disquisitive part, body, or ratio decidendi of the March 24, 1998 Order--as distinguished from thefallo or dispositive portion--where the findings of fact and law, the reasons, and evidence to support such findings including the discussions of the issues leading to their determination are drawn from, likewise obviously did not include the claim for properties and the remittance of any monetary claim. ST. MARTIN FUNERAL HOMES v. NATIONAL LABOR RELATIONS COMMISSION, AND BIENVENIDO ARICAYOS G.R. NO. 142351, November 22, 2006 , Velasco, Jr. J.

While a formal trial or hearing is discretionary on the part of the Labor Arbiter, when there are factual issues that require a formal presentation of evidence in a hearing, the Labor Arbiter cannot simply rely on the position papers, more so, on mere unsubstantiated claims of parties. Facts: Bienvenido Aricayos assisted in managing St. Martin Funeral Homes without compensation. When Amelita took over as manager of the company, she found out that St. Martin had arrearages in the payment of taxes, but company records show that payments were made. Because of this, Amelita dismissed Aricayos from managing St. Martin's business.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Aricayos filed a case for illegal dismissal. The NLRC remanded the case to the LA to determine if there is an employer-employee relationship. St. Martin insists that the Labor Arbiter actually concluded that there was no employer-employee relationship between the parties considering the memoranda, position papers, and the documentary evidence presented in support of their respective positions. Issue: Whether the Supreme Court can make a determination of the presence of an employer-employee relationship between St. Martin and Aricayos based on the evidence on record Ruling: No. The issue submitted for resolution is a question of fact which is proscribed by the rule disallowing factual issues in appeal by certiorari to the Supreme Court under Rule 45. This is explicit in Rule 45, Section 1 that petitions of this nature shall raise only questions of law which must be distinctly set forth. St. Martin would like the Court to examine the pleadings and documentary evidence extant on the records of the Labor Arbiter to determine if said official indeed made a finding on the existence of the alleged employer-employee nexus between the parties based on the facts contained in said pleadings and evidence. Evidently, this issue is embraced by the circumscription. Even if we would like to relax the rule and allow the examination of the documentary evidence as an exception to the general rule, we are precluded by the abject failure of petitioner to attach to the petition important and material portions of the records as would support the petition prescribed by Rule 45, Section 4. St. Martin asks us to find out if the Labor Arbiter was correct in concluding that respondent Aricayos was not in its employ; but committed the blunder of not attaching to the petition even the Decision of the Labor Arbiter sought to be reviewed, the NLRC Decision, the position papers and memoranda of the parties filed ’s employees, and other pieces of evidence that we can with the Labor Arbiter, the affidavits of petitioner consider in resolving the factual issue on employment. Without these documents, petitioner cannot be given the relief prayed for. Even with the inadequate information and few documents on hand, one thing is clear that the Labor Arbiter did not set the labor case for hearing to be able to determine the veracity of the conflicting positions of the parties. On this point alone, a remand is needed. There are certain admissions by petitioner St. Martin that should have prodded the Labor Arbiter to conduct a hearing for a more in-depth examination of the contrasting positions of the parties, namely; that respondent helped Amelita’s mother manage the funeral parlor business by running errands for her, overseeing the business from 1995 up to January 1996 when the mother died, and that after Amelita made changes in the business operation, private respondent and his wife were no longer allowed to participate in the management of St. Martin. These facts could have been examined more in detail by the Labor Arbiter in a hearing to convince himself that there was indeed no employment relationship between the parties as he srcinally found.

DANILO OGALISCOv. HOLY TRINITY COLLEGE OF GENERAL SANTOS CITY, INC. G.R. No. 172913, August 9, 2007, Velasco, Jr., J.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Factual findings of the labor arbiter and the NLRC are accorded respect and finality when supported by substantial evidence, which means such evidence as that which a reasonable mind might accept as adequate to support a conclusion. Facts: Danilo Ogalisco was employed by respondent Holy Trinity College as a regular faculty member. In 1997, the school through its vice president, called his attention to a widespread rumor that he was having an illicit affair with Mrs. Crisanta Hitalia, a married co-teacher. In 1998, he received an invitation to attend an investigation to be conducted by a panel appointed by the school president. He attended the investigation, but was deeply surprised when instead of having an investigation regarding the complaints against the school, it became an investigation against him. He received a copy of the minutes of the investigation and was given until 7:30 p.m. the next day to answer the charges against him. Petitioner timely submitted his comment. Nevertheless, the panel recommended his termination. Consequently, Holy Trinity College terminated his services. Petitioner filed a complaint for illegal dismissal with the NLRC. The labor arbiter dismissed the complaint but nevertheless awarded PhP 17,460 to petitioneras indemnity for the school’s failure to afford petitioner due process. Upon appeal to the NLRC, the NLRC likewise affirmed theDecision of the labor arbiter and denied petitioner’s Motion for Reconsideration. Petitioner then filed a petition for certiorari with the CA. However, the CA also dismissed the petition and denied petitioner’s Motion for Reconsideration. Hence, this petition. Issue: Whether the petitioner was validly dismissed Ruling: Yes. The labor arbiter, NLRC, and CA unanimously found that petitioner was validly dismissed. Petitioner, however, failed to show any extraordinary circumstance why this Court should disturb the factual findings of the labor arbiter which were affirmed by the NLRC and the CA. Indeed, substantial evidence is extant on record that showed convincingly the extra-marital affair of petitioner with his co-teacher, Hitalia. Hence, petitioner’s termination is valid and legal under Article 282 of the Labor Code.

BERNARDINA P. BARTOLOMEv. SOCIAL S ECURITY SYSTEM and SCANMAR MARITIME SERVICES, INC. G.R. No. 192531, November 12, 2014, Velasco, Jr., J.

The term "parents" in the phrase "dependent parents" in Article 167 (j) of the Labor Code is used and ought to be taken in its general sense and cannot be unduly limited to "legitimate parents." Facts: Due to the death of John Colcol, an employee of Scanmar Maritime Services, Inc., Bernardina P. Bartolome, John’s biological mother filed a claim for death benefit s with the Social Security System (SSS). However, the SSS La Union office denied the claim and ruled that Bartolome is not entitled to death benefits of

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Colcol because she is no longer considered as the parent of John Colcol as he was legally adopted by Cornelio Colcol. On appeal, the Employees’ Compensation Commission (ECC) affirmed the decision of SSS. The ECC ruled that the legal parent referred to by P.D. 626, as amended, as the beneficiary, who has the right to file the claim, is the adoptive father of the deceased and not herein appellant. Hence, this petition. Issue: Whether the biological mother is entitled to receive the benefits Ruling: Yes. The rule limiting death benefits claims to the legitimate parents is contrary to law. Rule XV, Sec. 1(c)(1) of the Amended Rules on Employees’ Compensation deviated from the clear language of Art. 167 (j) of the Labor Code when it interpreted the phrase "dependent parents" as "legitimate parents." When the law does not distinguish, one should not distinguish. Plainly, "dependent parents" are parents, whether legitimate or illegitimate, biological or by adoption, who are in need of support or assistance. Article 167 (j), as couched, clearly shows that Congress did not intend to limit the phrase "dependent parents" to solely legitimate parents. Article 167 provides that "in their absence, the dependent parents and subject to the restrictions imposed on dependent children, the illegitimate children and legitimate descendants who are secondary beneficiaries." Had the lawmakers contemplated "dependent parents" to mean legitimate parents, it would have simply said descendants and not "legitimate descendants."

JESSIE V. DAVID, represented by his wife, MA. THERESA S. DAVID, and children, KATHERINE and KRISTINA DAVID v. OSG SHIP MANAGEMENT MANILA, INC., and/or MICHAELMAR SHIPPING SERVICES G.R. No. 197205, September 26, 2012, Velasco, Jr., J.

It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre -existing condition he might have had. Facts: Jessie David entered into a Contract of Employment with OSG Manila for its principal Michaelmar as Third Officer of its crude tanker. Prior to embarkation, David was declared “fit for further sea duty.” While onboard the ship, he suffered intolerable pains on his left foot. He was diagnosed with “lipoma on the upper left leg with a possible calcaneus spur on the left foot.”, but found to be fit for work. After his return to the country, David was referred to Dr. Lim, OSG Manila’s company-designated physician. The MRI showed a mass on his left foot. Reports from Dr. Lim and Dr. Pena of Metropolitan Medical Center showed that the soft tissue sarcoma was caused by exposure to certain chemicals. Despite the non-conclusive findings of both doctors, OSG Manila issued a certification stating that David has been given a permanent disability Grade 1 by the Marine Medical Services of the hospital. David underwent chemotherapy but the company refused to shoulder his expenses. He filed a complaint for total and permanent disability benefits and damages. The Labor Arbiter and NLRC ruled in his favor, finding the certification binding on the company. The CA reversed the ruling. David argues that the illness was presumed work-related and it is up to the company to overcome such presumption. Issue:

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 Whether the illness was work-related, thus entitling David to disability benefits Ruling: Yes. Deemed incorporated into the contract of employment are the provisions of the 2000 POEAStandard Employment Contract. Sec. 20(B) provides that illnesses not listed in Sec. 32 are disputably presumed as work-related. David suffered from malignant fibrous histiocytoma (MFH) in his left thigh. MFH is not one of the diseases enumerated under Sec. 32 of the POEA-SEC. This disputable presumption works in favor of the employee pursuant to the mandate under EO 247 under which the POEA-SEC was created: "to secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith" and "to promote and protect the well-being of Filipino workers overseas." Hence, unless contrary evidence is presented by the seafarer’s employer/s, this disputable presumption stands. David showed that part of his duties as a Third Officer of the crude tanker M/T Raphael involved "overseeing the loading, stowage, securing and unloading of cargoes." As a necessary corollary, David was frequently exposed to the crude oil that M/T Raphael was carrying.It has been regarded that the hazardous chemicals in crude oil can possibly contribute to the formation of cancerous masses. David has provided more than a reasonable nexus between the nature of his job and the disease that manifested itself on the sixth month of his last contract with respondents. This reasonable connection has not been convincingly refuted by respondents. On the contrary, respondents do not deny the functions performed by David on board M/T Raphael or the cargo transported by the tanker in which he was assigned. The quantum of evidence required in labor cases to determine the liability of an employer for the illness suffered by an employee under the POEA-SEC is not proof beyond reasonable doubt but mere substantial evidence or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” TRANSOCEAN SHIP MANAGEMENT (PHILS.), INC., CARLOS S. SALINAS, and GENERAL MARINE SERVICES CORPORATION v. INOCENCIO B. VEDAD G.R. Nos. 194490-91, March 20, 2013, Velasco, Jr., J.

Where the evidence may be reasonably interpreted in two divergent ways, one prejudicial and the other favorable to the overseas workers, the balance must be tilted in their favor consistent with the principle of social justice. Facts: Inocencio B. Vedad was a seafarer employed by Transocean. Inocencio's employment under the POEA-SEC was for a 10-month period and he was deployed and went on board M/V Invicta after the required pre-employment medical examination (PEME) which gave him a clean bill of health. Before the expiry of his 10-month contract, Inocencio was repatriated for medical reasons because while on board M/V lnvicta he fell ill and experienced fever, sore throat and pain in his right ear. He underwent medical examination with the finding of ''chronic suppurative otitis media right CSOM(R) with acute pharyngitis, with mild maxillary sinusitis," for which he was prescribed antibiotics and ear drops with the recommendation of a follow-up examination of the CSOM(R). He underwent tonsillectomy but was later found by a histopathology report to be suffering from cancer of the right tonsil. Inocencio was advised to undergo chemotherapy and linear treatment at a cost of P500, 000, which Transocean and General Marine promised to shoulder. Inocencio started with the procedure but could not continue due to the failure of Transocean and General Marine to provide the necessary amount. Inocencio filed a complaint before the Labor Arbiter praying for total permanent disability benefits and sickness allowance.

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Labor Law (Cases Penned by J. Velasco Dean’s Circle 2016 The Labor Arbiter awarded permanent total disability benefits plus attorney’s fees while dismissing all other claims. The Labor Arbiter, applying Section 20 of the POEA-SEC, ruled Inocencio's tonsil cancer to be presumptively work-related. The NLRC vacated that of the Labor Arbiter and awarded sickness allowance equivalent to 120 days salary and reimbursement of Inocencio's medical expenses. The CA modified the NLRC’s decision by setting aside the award of sickness allowance but affirming the grant of reimbursement of medical expenses. Issues: 1.

Whether Inocencio is entitled to sickness allowance and reimbursement of his medical expenses

2.

Whether Inocencio is entitled to permanent total disability benefits

Ruling: 1. Yes. Inocencio got ill with what appeared to be tonsillitis while on board M/V lnvicta, for which he was treated at a foreign port where the ship docked. His malady still continued despite the treatment as he was, in fact, repatriated before the end of his 10-month contract on medical grounds. Inocencio is entitled to receive sickness allowance from his repatriation for medical treatment, which is equivalent to his basic wage for a period not exceeding 120 days or four months. The fact that Inocencio's sickness was later medically declared as not work-related does not prejudice his right to receive sickness allowance, considering that he got ill while on board the ship and was repatriated for medical treatment before the end of his 10-month employment contract. He is entitled to sickness allowance pending assessment and declaration by the company-designated physician on the work-relatedness of his ailment. When the assessment of the company physician is that the ailment is not work-related but such assessment is duly contested by the second opinion from a physician of the seafarer's choice, then pending the final determination by a third opinion pursuant to the mechanism provided under the third paragraph of Sec. 20(B) (3), the seafarer is still entitled to sickness allowance but not to exceed 120 days. 2. No. Tonsil cancer or tonsillar carcinoma is not work-related. The NLRC and the CA correctly ruled on this issue. It is not included in the list of occupational diseases. Inocencio carried the burden of showing by substantial evidence that his cancer developed or was aggravated from work-related causes. As both the NLRC and the CA found, he had nothing to support his claim other than his bare allegations. In determining whether or not a given illness is work-related, it is understandable that a companydesignated physician would be more positive and in favor of the company than, say, the physician of the seafarer's choice. It is on this account that a seafarer is given the option by the POEA-SEC to seek a second opinion from his preferred physician. And the law has anticipated the possibility of divergence in the medical findings and assessments by incorporating a mechanism for its resolution wherein a third doctor selected by both parties decides the dispute with finality, as provided by Sec. 20(B) (3) of the POEA-SEC. Inocencio, however, failed to seek a second opinion from a physician of his choice. The companydesignated doctor's certification must prevail. In the absence of any duly medically proven work-relatedness, Inocencio cannot be accorded permanent total disability benefits.

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