Finals

Question 1

Art. 128. Visitorial and Enforcement Power

Answer 1

• Secretary of labor shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken.
• DOLE inspector will check if there’s compliance with minimum wage.
• if there’s violation or non compliance with labor standards, there will be issuance of compliance order by DOLE.
• Can inspect without warrant
• 3 years, the employers will not be inspected provided that there’s certificate of compliance

Question 2

Art. 129. Recovery of wages

Answer 2

• Regional director of DOLE to hear and decide matters that involves the recovery of wages.
• Money claim and still an employee, complaint with the DOLE and NOT the NLRC.
• RD shall resolve within 30 calendar days from the date of filing.

Question 3

Jurisdiction of Money Claim

Answer 3

• even if it is above 5k, DOLE can still exercise its jurisdiction.

Question 4

Regular Employment

Answer 4

• engaged to perform activities that are usually necessary or desirable in the usual business.

Question 5

Casual Employment

Answer 5

• shall be considered regular with respect to the activity the employee is employed and his employment shall continue while such activity exists if he rendered at least 1 year of service

Question 6

Project Employment

Answer 6

• employment has been fixed for a specific project

Question 7

Seasonal Employment

Answer 7

• work or service to be performed is seasonal in nature.

Question 8

Two Kinds of Regular Employees

Answer 8

1. Engaged to perform activities which are necessary or desirable in the usual business or trade of the employer.
2. Who have rendered at least 1 year of service, whether continuous or broken.

Question 9

Employee employed/hired as a “project employee”

Answer 9

• employer should have submitted a report of termination to the NEAREST public employment office EVERYTIME his employment is terminated as required in Policy Instruction No. 20

Question 10

Project employees when it comes to termination pay.

Answer 10

• they are not entitled of separation pay if they are terminated as a result of the termination of the project.

Question 11

Project Employee v. Regular Employee

Answer 11

PE- coterminous with the project and may be terminated upon the completion of the project

RE- entitled to remain in the service of their employer until the service is terminated

Question 12

Two Types of Project Employment

Answer 12

1) A job that is within the regular or usual business of the employer, which is DISTINCT and SEPARATE and IDENTIFIABLE as such, from the other undertakings of the company. Such job begins and ends at determined or determinable times.

2) Particular job not within the regular business of the employer. Such job must be identifiably separate and distinct from the ordinary or regular operations of the employer. The undertaking begins and ends at a determined or determinable times.

Question 13

Employee at least one year to be considered as a regular employee.

A. Casual Employee
B. Project Employee

Answer 13

A. Casual employee. If served more than one year, it will be considered as a regular employee.

Question 14

Indicators of Project Employment

Answer 14

1) Indicate the duration of the specific undertaking which must be reasonably determinable.

2) Duration must be defined in an employment agreement (written agreement)

3) Work must be in connection with a particular project.

4) While not employed, employee is free to offer his services to another

5) Report of the termination to the Department of Labor within 30 DAYS from separation of work.

Question 15

Project Employee to be considered as Regular Employee

Answer 15

1) employee continuously re-hired by the same employer for the same tasks

2) tasks are vital, necessary and indispensable to the usual business or trade of the employer.

Question 16

To be considered as Seasonal Employee

Answer 16

1) They perform services which are seasonal in nature

2) must have been employed for the duration of one season.

Regular Seasonal Employee

1) seasonal employee who performs work or services that are seasonal in nature

2) must be employed for more than one season

Question 17

Amount of separation pay is based on two factors:

Answer 17

1) Amount of monthly salary
2) number of years of service

Question 18

Fixed-period employee (Brent Doctrine)

Answer 18

1) Fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force and duress or vitiation of consent;

2) Employer and employee dealt with each other on more or less equal terms.

Question 19

Probationary employment

Answer 19

• Shall not exceed six months from the date of the employee started unless it is covered in an apprenticeship agreement stipulating a longer period.
• employee allowed to work after probationary period shall be considered a regular employee.

Question 20

To be considered as regular employee in fixed-term employment and casual employment is when:

Answer 20

1) one year period lapsed in casual employment, it becomes regular.

2) in fixed-term, if services were rendered beyond the term and their services were necessary to the business.

Question 21

Are seafarers considered regular employees?

Answer 21

• No. they are contractual employees. It’s the nature of their job. Even if they are continuously rehired and work is necessary in the business, they are still contractual employees because their employment is governed by the contract they signed when they’re hired.

Question 22

Article 282. Termination by employer. An employer may terminate an employment for:

Answer 22

A) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer

B) Gross and habitual neglect by the employee of his duties

C) Fraud or willful breach by the employee of the trust reposed in him by his employer.

D) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family.

E) Other causes analogous to the foregoing.

Question 23

Probationary employee and was illegally dismissed. What is the consequence?

Answer 23

• even if probationary employee, still entitled to security of tenure
• entitled to backwages and separation pay.

PROBATIONARY EMPLOYEE CAN BE VALIDLY DISMISSED IF IT FAILED TO MEET THE STANDARDS TO BECOME A REGULAR EMPLOYEE.

Question 24

General Rule of period of time in probationary period is 6 months. Unless…

Answer 24

1) Established by company policy (more than 6 mos but still probationary)

2) required by the nature of work to be performed by the employee.

Question 25

One of the ground for termination is Serious Misconduct. What are its requisites?

Answer 25

Serious misconduct- improper conduct, transgression of some established and definite rule of action.

Requisites: (SRUW)
1. Serious
2. Relate to the performance of employee’s duties
3. Employee has become unfit to continue to work
4. Performed with wrongful intent

Question 26

Willful disobedience as ground for termination has requisites of:

Answer 26

1. Employee’s conduct must have been willful that is characterized by wrongful attitude.
2. Order violated must be reasonable and lawful, and must made known to the employee and must pertain to the duties which he had been engaged to discharge.

Question 27

Gross negligence and habitual negligence should be together for a valid dismissal of an employee. It is not enough that there’s only gross negligence.

Answer 27

Gross- failure to exercise slight care
Habitual- repeated failure to perform one’s duties

Question 28

Attitude problem as a ground for termination? True or false?

Answer 28

True. It is analogous to loss of trust of confidence.

Question 29

Abandonment description

Answer 29

• form of neglect of duty on the part of the employee.

Question 30

Requisites of abandonment:

Answer 30

1. Failure to report for work or absence without valid or justifiable reason
2. Clear intention to sever the employer-employee relationship.

Question 31

Loss of trust and confidence as a valid cause of dismissal, must have:

Answer 31

1. In cases of employees occupying positions of trust and confidence (managerial and supervisory employees)
2. Must exist an act justifying the loss of trust and confidence— an act that betrays the employer’s trust— which must be real and founded on established facts
3. Breach of trust must be willful or intentional and knowingly and purposely done without justifiable excuse.

Question 32

AUTHORIZED CAUSE

Art. 298. Closure of establishment and reduction of personnel.

Answer 32

(Divided provis)

Employer may terminate employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or cessation of operation.

Serve written notice on the workers and DOLE at least one month before the intended date thereof.

In case of labor-saving devices or redundancy, employee is ENTITLED to at least ONE MONTH PAY or at least ONE MONTH PAY FOR EVERY YEAR OF SERVICE whichever is higher.

In case of retrenchment to prevent losses, separation pay shall be one month pay or at least 1/2 month pay for every year of service.

Question 33

When is there a redundancy?

Answer 33

• redundancy exists when the service capability of the work force is in excess of what is reasonably needed to meet the demands of the enterprise.

Question 34

Valid implementation of the employer’s redundancy program:

Answer 34

1. Written notice required given to the affected employees to the DOLE at least a month before the intended date of retrenchment
2. Employer must pay the separation pay equivalent to at least one month pay or at least one month pay for every year of service whichever is higher
3. Abolishment of the redundant position must be in good faith
4. Employer must set fair and reasonable criteria in ascertaining which positions are redundant and may be abolished.

Question 35

Retrenchment to be a valid cause:

Answer 35

1. Necessary to prevent losses, and such losses are proven
2. Requirement of written notice to the employee and to DOLE one month before the intended date of retrenchment
3. Payment of separation pay

Question 36

What is constructive dismissal?

Answer 36

Quitting because continued employment is rendered impossible, unreasonable as an offer involving a demotion rank and diminution in pay.

An act of clear discrimination or disdain by an employer may become so unbearable on the part of employee.

Question 37

Article 299. Disease as ground for termination.

Employer may terminate the services of an employee who has been suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.

Disease as authorized cause. What are the elements?

Answer 37

1. Employee is suffering from any disease
2. Continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees
3. Competent public health authority certifies that the disease is at the stage that cannot be cured within a period of 6 months with proper medical treatment.

Question 38

PROCEDURAL DUE PROCESS
Standard of due process; requirement of notice.

Answer 38

A. Written notice specifying the ground or reasons of termination given to the employee and employee must have an opportunity to explain his side

B. Hearing which the employee is given opportunity to respond to the charge and present evidence.

C. Written notice of termination served on the employee indicating that despite the consideration, there’s a justifiable reason for the termination.

There is just cause so there’s a substantive due process but failure to comply with the procedural due process entitles the employe for NOMINAL DAMAGES in the amount of 30,000.
- 15,000 each notice.

Question 39

IF THERE IS ILLEGAL DISMISSAL, EMPLOYEE IS ENTITLED OF?

Answer 39

Backwages and separation pay. No 30,000 because it is only awarded to the employee in a valid dismissal but no procedural due process.

Question 40

Article 300. Termination by the employee

Answer 40

A. Employee may terminate without just cause the em-rel by serving a written notice on the employer at least one month in advance.

B. Employee may put to an end to the relationship without any notice on the employer for any of the ff causes:
1. Serious insult by the employer
2. Inhuman and unbearable treatment
3. Commission of a crime or offense by the employer.