F. Ku
Atty.
Labor Relations
Tips for Finals
Coverage
Procedure
Substantial evidence.
While it is true that quasi-judicial
bodies like the NLRC are not bound by the
technical rules of procedure in the
adjudication of cases, the evidence
presented before it must at least have a
modicum of admissibility for it to be given
probative value. Not only must there be
some evidence to support a finding or
conclusion, but it must also be substantial
evidence.
Substantial evidence is more than a
mere scintilla. It means such relevant
evidence as a reasonable mind might
accept as adequate to support a conclusion.
It is the basic measure in adjudicating cases
before the NLRC.
purpose
of
grievance
Labor Organization
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3) Declared for an unlawful purpose,
such as inducing the employer to
commit ULP against non-union
employees;
4) Employs unlawful means such as
violence
or
harassment
of
nonstrikers;
5) Is declared in violation of an
existing injunction;
6) Contrary to an existing agreement,
such as a no-strike clause or
conclusive arbitration clause.
What
is
slowdown?
strike-on-installment
or
Assumption of jurisdiction/
Certification Order
a) When may the Secretary of Labor
assume jurisdiction over labor
disputes?
b) What is a return-to-work order and
what is its effect?
Alternative Answer:
Before a valid or legal strike may
take place, the following procedure must
be followed:
(a) a notice of strike must be filed with
the DOLE, particularly the National
Conciliation and Mediation Board;
(b) the cooling-off period must be
observed which is 30 days in case of
bargaining deadlock and 15 days in
case of ULP. If there is union
busting, the union need not observe
the cooling off period and
immediately take a strike vote.
(c) A strike vote will be conducted by
secret balloting, provided that the
NCMB was informed of the voting at
least 24 hours before
(d) Finally, the result of the strike vote
(strike vote report) should be
reported to the NCMB at least 7
days before the intended strike.
This 7-day reporting period is
intended to give DOLE the
opportunity to very whether the
intended strike really carries the
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a) Yes, the notice of strike is valid. The law
provides that a strike may be declared in
cases of bargaining deadlocks and unfair
labor practices.
In the instant case, there exists a
bargaining deadlock as Company A and the
employees have reached a stalemate in
negotiations concerning the sick and
vacation leave benefits of the employees
which is considered as part of the economic
provisions of the CBA.
Consequences of concerted
actions
For what reasons is it proper to terminate a
union officer in case of a strike? How about
a union member?
The Labor Code provides that a union
officer who knowingly participates in an
illegal strike or knowingly participates in
the commission of illegal acts during a
strike may be declared to have lost his
employment. Thus, a union officer may be
terminated if he participated in an illegal
strike or if he committed prohibited or
illegal acts in a strike, whether legal or not.
A union member however cannot be
terminated for mere participation in a
strike. To warrant a valid termination, the
union member must have committed illegal
acts during the strike.
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employees to continue working, to its
detriment, or to refuse them work, even if
it had to cease operations which, either
way would disrupt the operations.
The act of the Union was not
merely an expression of their grievance but
a calibrated and calculated act designed to
inflict serious damage to the Hotel and its
reputation. (National Union of Workers in
the Hotel Restaurant and Allied Industries
Dusit Hotel Nikko Chapter v. CA)
Termination of Employment
Security of Tenure
What is security of tenure?
Art. 293 of the Labor Code provides
that In cases of regular employment, the
employer shall not terminate the services
of an employee except for a just cause or
when authorized by the Labor Code.
An employee who is unjustly
dismissed from work shall be entitled to
reinstatement without loss of seniority
rights and other privileges and to his full
backwages, inclusive of allowances, and to
his other benefits or their monetary
equivalent computed from the time his
compensation was withheld from him up to
the time of his actual reinstatement.
Kinds of Employment
Regular Employment
a) What is regular employment?
b) When is a person not considered a
regular employee under the Labor
Code?
c) When can a casual employee
become a regular employee
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a) Rasuls contract is valid. This is a case of
a fixed-term contract or a fixed-period
employment which the Supreme Court
upheld to be valid in the case of Brent
School v. Zamora. The Labor Code does not
proscribe or prohibit an employment
contract with a fixed period, provided the
same is entered into by the parties without
any force, duress or improper pressure
being brought to bear upon the employee
and absent any other circumstances
vitiating consent. As long as it satisfactorily
appears that the employer and employee
dealt with each other in more or less equal
terms and the contract was not entered
into to prevent the employee from
acquiring security of tenure, the fixed-term
employment will be upheld.
In the case at bar, there was no
vitiation of consent when Rasual agreed to
enter into the 3-year contract. He was on
more or less equal terms with the employer
when he signed the contract.
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imminent threat to the life or property of
the employer or his co-workers.
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in him by his employer or duly
authorized representative;
d) Commission of a crime or
offense by the employee
against the person of his
employer or any immediate
member of his family or duly
authorized representative; and
e) Other analogous causes.
causes
a)
b)
c)
d)
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d) Before closure, Joseph must first serve a
written notice on the worker and the DOLE
at least one month before the intended
date of closure.
Authorized Causes
Although Josephs business is not suffering
any serious business losses, Joseph wants to
close his business already.
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penalty and must only be imposed as a last
recourse.
Consequences of Termination
What is/are the consequences of illegal
dismissal? Define each.
Art. 293 of the Labor Code provides
that an employee who is unjustly dismissed
from work is entitled to reinstatement
without loss of seniority rights and other
privileges and to his full backwages,
inclusive of allowances, and to his other
benefits and other monetary equivalent
computed from the time his compensation
was withheld from him up to the time of his
actual reinstatement.
The consequences of dismissal then
are:
separation
pay,
backwages,
reinstatement, damages and attorneys
fees.
Separation pay may be given either
as a legal obligation for termination due to
authorized causes, as a form of financial
assistance at the courts discretion, as
payment in lieu of reinstatement when
reinstatement is no longer feasible or as an
employment benefit granted in the CBA or
company policy.
Backwages along with allowances
and benefits or their monetary equivalent
is granted on grounds of equity for earnings
which a worker or employee has lost due to
his illegal dismissal. This is computed from
the time compensation was withheld up to
the time of his actual reinstatement.
Reinstatement
restores
the
employee who was unjustly dismissed to
the position from which he was removed or
to his status quo ante dismissal.
Moral damages are awarded to
compensate for diverse injuries such as
mental anguish, besmirched reputation, etc.
that sprung from a wrongful act or omission
of the employer. Exemplary damages are
awarded if the dismissal was shown to have
been effected in a wanton, oppressive or
malevolent manner. Nominal damage is
awarded if the dismissal was with just or
authorized cause but there was a violation
of the employees right to due process.
Attorneys fees is awarded when
the employee was compelled to litigate to
protect his interest by reason of the illegal
dismissal.
grounds
for
preventive
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him directly and personally in the absence
of a showing that he acted without or in
excess of his authority or was motivated by
personal ill-will against the employee. His
acts were official acts done in his capacity
as Vice President of the company and on its
behalf.
(2) Inhuman
and
unbearable
treatment
accorded
the
employee;
(3) Commission of a crime or
offense by the employer or his
representative
against
the
person of the employee or any
of the immediate members of
his family;
(4) Other causes analogous.
Retirement
What is retirement? How much is an
employee entitled to receive upon
retirement?
Retirement has been defined as a
withdrawal from office, public station,
business, occupation or public duty. It is a
bilateral act of the parties, a voluntary
agreement between the employer and the
employee whereby the latter, after
reaching a certain age, agrees or consents
to sever his employment with the former.
Termination by Employee
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b) What is the prescriptive period for
the filing of unfair labor practices
cases and the reckoning point of
such period?
c) What is the prescriptive period for
the filing of all money claims
arising from employer-employee
relations accruing during the
effectivity of the Labor Code and
the reckoning point of such period?
a) Actions for illegal dismissal must be
brought within 4 years from the time the
cause of action accrued.
b) Unfair labor practices cases shall be filed
within 1 year from the accrual of such
unfair labor practice.
c) All money claims arising from employer
employee relations during the effectivity of
the Labor Code shall be filed within 3 years
form the time the cause of action accrued.
What is promissory estoppel?
Promissory estoppel may arise from
the making of a promise, even though
without consideration, if it was intended
that the promise should be relied upon, as
in fact it was relied upon, and if a refusal
to enforce it would virtually sanction the
perpetuation of fraud or would result in
other injustice.
The
elements
of
promissory
estoppel are:
(a) a promise was reasonably
expected to induce action or
forbearance;
(b) such promise did in fact
induce
such
action
or
forbearance
(c) the party suffered detriment
as a result. (Accessories
Specialist v. Alabanza)
What constitutes illegal recruitment? When
does illegal recruitment become large-scale
or qualified?
Illegal recruitment means any act of
canvassing,
enlisting,
contracting,
transporting, utilizing, hiring or procuring
workers and includes referring contract
services, promising or advertising for
employment abroad, whether for profit or
not, when undertaken by a non-licensee or
non-holder of authority. (Sec. 5 as amended
by RA 10022)
Illegal recruitment is considered
large scale or qualified when it is
committed against three or more persons
individually or as a group. It is committed
by a syndicate if it is committed by three
or more persons conspiring and conferating
with one another.
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