JLo cases

Question 1

What are the elements of large scale illegal recruitment?

Answer 1

(1) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers;

(2) the offender undertakes any of the activities within the meaning of “recruitment and placement” under Article 13 (b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the Labor Code (now Section 6 of RA 8042);

(3) the offender commits any of the acts of recruitment and placement against three (3) or more persons, individually or as a group.

Question 2

Can an erroneous judgment be corrected, if the judgment of conviction has become final and executory?

Answer 2

No.

The penalties in the three (3) counts of estafa can no longer be corrected, even if erroneous, because the judgment of conviction has become final and executory after Regina chose not to appeal these cases. (P vs Rogero G.R. No. 251150. March 16, 2022)

An erroneous judgment, as thus understood, is a valid judgment. Whatever mistake the trial court committed in the computation of penalties was merely an error of judgment and not of jurisdiction. The mistake did not affect the intrinsic validity of the decision and can no longer be rectified on appeal no matter how obvious the error may be.

Question 3

When does employment relationship exists (4-Fold Test of employment)?

Answer 3

To determine whether an employment relationship exists, the following elements are considered:

(1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer’s power to control the employee’s conduct.

Question 4

What is the most important element in an employment relationship?

Answer 4

The most important element is the employer’s control of the employee’s conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it.

However, the power of control refers merely to the existence of the power, and not to the actual exercise thereof.

No particular form of evidence is required to prove the existence of an employer-employee relationship. Any competent and relevant evidence to prove the relationship may be admitted. However, a finding that such relationship exists must still rest on some substantial evidence.

(Dusol vs. Lazo G.R. No. 200555, January 20, 2021)

Question 5

What are ‘wages’?

Answer 5

‘WAGES’ encompasses “the remuneration or earnings, however designated, capable of being expressed in terms of money, **whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same,

**which is payable by an employer to an employee

**under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered.”

Question 6

What is an example of power to control as an important element in employment relationship?

Answer 6

The existence of control is manifestly shown by Emmarck’s express admission that he left the entire business operation of the Resort to Pedro and Maricel. While Pedro and Maricel are to a large extent allowed to carry out their respective duties as caretaker and store keeper on their own, this does not negate the existence of control. It was Emmarck himself, who gave Pedro and Maricel immense flexibility in the performance of their duties. This, alone, clearly shows that Emmarck had control over the conduct of Pedro and Maricel in performing their duties.

(Dusol vs. Lazo G.R. No. 200555, January 20, 2021)

Question 7

What is an authorized cause for the dismissal of employees?

Answer 7

Article 298 of the Labor Code considers closure of business as an authorized cause for the dismissal of employees, whether or not the closure is due to serious business losses.

However, if the closure is NOT due to serious business losses, the employer is REQUIRED to pay its employees separation pay equivalent to
**one (1) month pay or

** at least one-half (1/2) month pay for every year of service, whichever is higher.

Question 8

When can a dismissed employee entitled to a separation pay when the closure of the business is an authorized cause?

Answer 8

While closure of the business is an authorized cause, there must be PROOF that it was due to serious business losses. Otherwise, the employee is entitled to a separation pay.

Question 9

When is a dismissed employee entitled to nominal damages?

Answer 9

When the employer failed to comply with the required notices.

Question 10

What are the criteria of a valid fixed-term employment?

Answer 10

The criteria of a valid fixed-term employment are:

1. The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or
2. It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter

Question 11

Is there a prohibition in the fixing of employment for a definite period?

Answer 11

It does not necessarily follow that where the duties of the employee consist of activities usually necessary or desirable in the usual business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is thus nothing essentially contradictory between a definite period of employment and the nature of the employee’s duties.

(Ramos vs. LBP Services Corporation G.R. No. 228407, June 10, 2020

Question 12

When does a contracts of employment for a fixed period terminate?

Answer 12

Contracts of employment for a fixed period terminate on their own at the end of such period.

Question 13

Is there a need for a notice of termination in Contracts of employment for a fixed period?

Answer 13

No. There is no need for a notice of termination because parties knew exactly when their contracts would end based on their fixed-term contract.

Question 14

When does Contracts of employment for a fixed term becomes unlawful?

Answer 14

Contracts of employment for a fixed term are not unlawful unless it is apparent from the circumstances that the periods have been imposed to circumvent the laws on security of tenure.

Question 15

How is the right to appeal exercised on Labor Cases?

Answer 15

In Labor Cases, Article 223 of the Labor Code set forth the Rules on Appeal to the NLRC from the Decisions, Awards or Orders of the Labor Arbiter.

The rules specifically provide that “[i]n case of a judgment involving a monetary award, an appeal by the employer may be perfected only UPON the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.

Question 16

What are the requisites on perfection of Appeal in Labor Cases

Answer 16

Sections 4 and 6 of Rule VI of the 2005 Revised Rules of Procedure of the NLRC:

SECTION 4. Requisites for Perfection of Appeal. - a) The appeal shall be:

1) filed within the reglementary period provided in Section 1 of this Rule;
2) verified by the appellant himself in accordance with Section 4, Rule 7 of the Rules or Court, as amended;
3) in the form of a Memorandum of Appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the appealed [D]ecision, resolution or order;
4) in three (3) legibly typewritten or printed copies; and
5) accompanied by:
i) proof of payment of the required appeal fee;
ii) posting of a cash or surety bond as provided in Section 6 of this Rule;
iii) a certificate of non-forum shopping; and iv) proof of service upon the other parties.

Question 17

When are Appeals involving monetary awards perfected?

Answer 17

Appeals involving monetary awards are perfected only upon compliance with the following mandatory requisites, namely:
(1) payment of the appeal fees;
(2) filing of the Memorandum of Appeal; and
(3) payment of the required cash or surety bond.[1

Question 18

What is the purpose of posting of cash or surety bond in Appealed labor cases?

Answer 18

Its purpose is to assure the employees that they will receive the monetary award granted them if they finally prevail in the case.

The bond also serves to discourage employers from using the Appeal to delay, or even evade, their obligation to satisfy the judgment.

Notably, the posting of Appeal Bond is NOT ONLY MANDATORY BUT ALSO JURISDICTIONAL as well.

Question 19

When can the bond requirement on appeals involving monetary awards has been and may be relaxed?

Answer 19

These cases include instances in which

(1) there was substantial compliance with the Rules, (2) surrounding facts and circumstances constitute meritorious grounds to reduce the bond,
(3) a liberal interpretation of the requirement of an appeal bond would serve the desired objective of resolving controversies on the merits, or

(4) the appellants, at the very least, exhibited their willingness and/or good faith by posting a partial bond during the reglementary period.

Question 20

What is the quantum of proof in Labor Cases?

Answer 20

The quantum of proof in Labor Cases is SUBSTANTIAL EVIDENCE or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

The burden of proof rests upon the party who asserts the affirmative of an issue.

Question 21

What needs to be proven in an Illegal Dismissal case?

Answer 21

The presence of employment relationship.

A case for Illegal Dismissal cannot prosper absent employment relationship between the parties.

Question 22

Does a Certificate of Registration as an Independent Contractor conclusive evidence of such status?

Answer 22

No. In the case of San Miguel Corporation v. Semillano case, the High Court elucidated:

Petitioner cannot rely either on AMPCO’s Certificate of Registration as an Independent Contractor issued by the proper Regional Office of the DOLE to prove its claim.

It is not conclusive evidence of such status. The fact of registration simply prevents the legal presumption of being a mere labor-only contractor from arising.

Question 23

What is the nature of legitimate job contracting?

Answer 23

The law creates an employer-employee relationship for a limited purpose, i.e., to ensure that the employees are paid their wages.

The principal employer becomes jointly and severally liable with the job contractor ONLY FOR THE PAYMENT OF THE EMPLOYEES WAGES whenever the contractor fails to pay the same. Other than that, the principal employer is not responsible for any claim made by the employees.

Question 24

What is the nature of labor-only contracting?

Answer 24

Creates an employer-employee relationship for a comprehensive purpose: to prevent a circumvention of labor laws.

The contractor is considered merely an agent of the principal employer and the latter is responsible to the employees of the labor-only contractor as if such employees had been directly employed by the principal employer. The principal employer therefore becomes solidarity liable with the labor-only contractor for ALL THE RIGHTFUL CLAIMS of the employees.

Question 25

What is the role of the principal in either job contractor vs labor-only contractor?

Answer 25

The distinction distinction between job contractor and labor-only contractor x x x will not discharge [the principal] from paying the separation benefits of the workers, inasmuch as [the contractor] was shown to be a labor-only contractor; in which case, [the principal’s] liability is that of a direct employer and thus solidarity liable with [the contractor].

Question 26

What is labor-only contracting?

Answer 26

Article 106 of the Labor Code, defines labor-only contracting
- as an arrangement where a person, who does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, supplies workers to an employer to perform activities which are directly related to the principal business of the employer.

Question 27

When is contracting or subcontracting legitimate?

Answer 27

Contracting or subcontracting shall be legitimate if all the following circumstances concur:

a. The contractor must be registered in accordance with the rule and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected

b. with the performance of the work except as to the results thereof;

c. The contractor has substantial capital and/or investment; and

Question 28

What is Right of control ?

Answer 28

Right of control refers to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end.[5

Question 29

what is the nature of the existence of registration in favor of a contractor?c

Answer 29

While the existence of registration in favor of a contractor is a strong badge of legitimacy, the elements of substantial capital, or investment and control over the workers may be examined to rebut the presumption of regularity to prove that a contractor is not a legitimate one.

Question 30

When can a regular employees be validly terminated?

Answer 30

Regular employees may only be terminated for just or authorized cause. (Article 279 of the Labor Code)

In the case of, Ortiz vs. Forever Richsons, Oscar is a regular employee and his dismissal must be for a valid cause, and cannot be merely because of end of contract.

Question 31

What does Article 279 of the Labor Code states when one is illegally terminated?

Answer 31

Pursuant to Article 279 of the Labor Code, Oscar is entitled to:
a reinstatement without loss of seniority rights;

b. payment of backwages inclusive of allowances and other benefits, or their monetary equivalent from the time his compensation was withheld up to the time of actual reinstatement; or

c. if reinstatement is no longer possible, Oscar may be entitled to separation pay equivalent to one month pay for every year of service up to the finality of this judgment.

Question 32

In claims for payment of salary differential, service incentive leave, holiday pay, and 13th month pay, to whom the burden rests?

Answer 32

In claims for payment of salary differential, service incentive leave, holiday pay, and 13th month pay, the burden rests on the employer to prove payment.

This standard follows the basic rule that in all illegal dismissal cases the burden rests on the defendant-employer to prove payment rather than on the plaintiff-employee to prove non-payment.

Question 33

In claims for overtime pay, premium pays for holidays and rest days, to whom the burden rests?

Answer 33

For overtime pay, premium pays for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business.

It is thus incumbent upon the employee to first prove that he actually rendered service in excess of the regular eight working hours a day, and that he in fact worked on holidays and rest days.

Question 34

How is the Judicial review of labor case done?

Answer 34

Judicial review of labor cases does not go beyond the evaluation of the sufficiency of the evidence upon which its labor officials’ findings rest.

As such, the findings of facts and conclusion of the NLRC are generally accorded not only great weight and respect but even clothed with finality and deemed binding on this Court as long as they are supported by substantial evidence.

Question 35

What is the Principle of principle of non-diminution of benefits?

Answer 35

ART. 100. Prohibition against Elimination or Diminution of Benefits. - Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code.

The principle is founded on the constitutional mandate to “protect the rights of workers and promote their welfare” and “to afford labor full protection.”

Question 36

Is “practice” or “custom” is a source of a legally demandable or enforceable right?

Answer 36

As a rule, “practice” or “custom” is not a source of a legally demandable or enforceable right.

In labor cases, however, benefits which were voluntarily given by the employer, and which have ripened into company practice, are considered as rights and are subject to the non-diminution rule.

Question 37

What are considered company practice?

Answer 37

To be considered a company practice, the benefit must be **consistently and **deliberately granted by the employer over a long period of time.

It requires an indubitable showing that the employer agreed to continue giving the benefit knowing fully well that the employee is not covered by any provision of law or agreement for its payment. The burden to establish that the benefit has ripened into a company practice rests with the employee.

In the case of Alcantara vs. Prudente (G.R. No. 200010, August 27, 2020), the Court ruled the there was no substantial evidence to prove that the car plan at full company cost had ripened into company practice.

Notably, the only time Rollette was given a service vehicle fully paid for by the company was for her first car. For the second vehicle, the company already imposed a maximum limit of P660,000.00 but Rollette never questioned this. She willingly paid for the equity in excess of said limit. Thus, the elements of consistency and deliberateness are not present.

Question 38

How is the non-diminution rules applies?

Answer 38

Under the principle of mutuality of contracts embodied in Article 1308 of the Civil Code, the terms of a contract - both express and implied - cannot be withdrawn except by mutual consent or agreement of the contracting parties, x x

Clearly, the non-diminution rule applies ONLY IF the benefit is based on an express policy, a written contract, or has ripened into a practice.

In this case, Rollette’s claim that the car plan was part of her hiring package was unsubstantiated. Admittedly, Home Credit has no existing car plan at the time Rollette was hired. Rollette’s employment contract does not even contain any express provision on her entitlement to a service vehicle at full company cost.

Alcantara vs. Prudente (G.R. No. 200010, August 27, 2020)

Question 39

Can an employer had the right to modify employee benefits?

Answer 39

The Court affirmed that an employer had the right to modify employee benefits, especially when such benefits:
**were not based on an express policy or
**written contract and
**had NOR ripened into a company practice

Question 40

What are the elements of Article 51 - Sexual Harassment ?

Answer 40

Sexual harassment” is defined as any act covered by the provisions
or Republic Act No 7877 or more explicitly any unwanted or unwelcome.
sexual advance, demand, request or sexual favor or other act or conduct of.
sexual in nature whether written, oral or physical and such act:

1. Is committed to take advantage of the weakness, vulnerability,
   status and professional, social, and economic standing of the official,
   employee, or client; or
2. Is explicitly or implicitly imposed as a condition for securing employment, advancement, promotion, assistance, services or preferential
   treatment; or
3. Interferes adversely with the official’s or employee’s
   performance; or
4. Is bound to create a hostile, offensive, intimidating or
   uncomfortable work environment.

Question 41

Is it necessary that sexual favors or advances are made to
constitute an act of sexual harassment?

Answer 41

No. In the case of PAL vs, YANEZ (G.R. No. 214662), it is not necessary that sexual favors or advances are made to
constitute an act of sexual harassment.

It is enough that Yanez inappropriate
conduct towards Sarte on May 6, 2008, and in other instances, created a hostile
work environment and uneasy feeling upon Sarte, which affected her job.

Question 42

What is the essence of due process?

Answer 42

The essence
of due process is simply an opportunity to explain one’s side or the chance to
seek a reconsideration of the action or ruling complained of. It safeguards not
the lack of previous notice but the denial of the opportunity to be heard.

As long as the party was afforded the opportunity to defend his interests in due course, there is no denial of due process.

Since it was Yanez who
refused to attend the scheduled hearings, he cannot, later on, complain that he
was unduly silenced.
(PAL vs, YANEZ G.R. No. 214662)

Question 43

What is Section 20-E of the POEA-SEC provides? and how is it applied?

Answer 43

Section 20-E of the POEA-SEC provides that “a seafarer who knowingly conceals and does not disclose past medical condition, disability and history in the pre-employment medical examination constitutes fraudulent misrepresentation and shall disqualify him from any compensation and benefits.”

It is applicable if the following conditions are met:
(1) the seafarer is suffering from a pre-existing illness or injury as defined under Item 11 (b) of the 2010 POEA-SEC,

(2) the seafarer intentionally concealed the illness or injury,

(3) the concealed pre­-existing illness or injury has a causal or reasonable connection with the illness or injury suffered during the seafarer’s contract.

Question 44

What is a finding of fraudulent concealment?

Answer 44

A finding of fraudulent concealment means that a person failed to disclose the truth and that the non-disclosure is deliberate and for a malicious purpose.

The fraudulent concealment must be coupled with an intent to deceive and profit from that deception.

Question 45

When should the company-designated physician issue a final medical assessment on the seafarer’s disability?

Answer 45

In Pastrana v. Bahia Shipping Services,[29] the Court clarified that the 120 days must be reckoned “from the date of the seafarer’s repatriation.”

Question 46

What is the nature of medical assessment on the seafarer’s disability?

Answer 46

In Razonable v. Maersk-Filipinas Crewing, Inc.,[31] the Court reiterated that the medical assessment must be final, conclusive, and definite.

The assessment must clearly state whether the seafarer is fit to work, or the exact disability rating, or whether such illness is work-related and without any further condition or treatment. It should no longer require any further action on the part of the company-designated physician, and it is issued by the company-designated physician after he or she has exhausted all possible treatment options within the periods allowed by law.

Question 47

Is the absence of a post-employment medical examination used to defeat a seafarer’s claim?

Answer 47

No. Absence of a post-employment medical examination cannot be used to defeat a seafarer’s claim especially when the failure to satisfy this requirement was not due to his fault but because of the inadvertence or deliberate refusal of the employer.

The absence of a post­-employment medical examination cannot bar Celestino’s claim for disability benefits and sickness allowance.

(Celestino vs. Pacific Ocean Manning GR 220657)

Question 48

What are two (2) elements on compensability of a seafarer’s injury or illness:?

Answer 48

Based on Section 20 (A) of the POEA-SEC the two (2) elements on compensability of a seafarer’s injury or illness:

(a) the injury or illness must be work-related; and

(b) that the work-related injury or illness must have existed during the term of the seafarer’s employment contract.

Question 49

How is “work-related illness” of the Section 20 (A) of the POEA-SEC defined?

Answer 49

“Any sickness as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied.”

What this means is that to be entitled to disability benefits, a seafarer must show compliance with the conditions under Section 32-A, as follows:
1. The seafarer’s work must involve the risks described therein;

2. The disease was contracted as a result of the seafarer’s exposure to the risks;
3. The disease was contracted within a period of exposure and under such other factors necessary to contract it: and
4. Seafarer was not notoriously negligent

Clearly, Joemar’s illness manifested or was discovered DURING the term of his contract. Applying the rules in Ventis case, Joemar’s medical condition is disputably presumed as work-related although not listed as an occupational disease.
(Bacabac vs. NYK-Fil, G.R. No. 228550, July 28, 2021)

Question 50

When does a seafarer’s complaints for disability benefits arises?

Answer 50

(1) injury or illness that manifests or is discovered DURING the term of the seafarer’s contract, which is usually while the seafarer is on board the vessel or

(2) illness that manifests or is discovered AFTER the contract, which is usually AFTER the seafarer has disembarked from the vessel.

The Court then laid down the following set of rules:
xxx. Section 20 (A) applies only IF the seafarer suffers from an illness or injury DURING THE TERM OF THE CONTRACT, i.e, while he is employed.

Question 51

What should include in the company physician’s assessment in claims for disability?

Answer 51

It bears emphasis that the company physician’s assessment must be complete and definite for the purpose of ascertaining the degree of the seafarer’s disability benefits. The assessment must truly reflect the extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such.

(Bacabac vs. NYK-Fil, G.R. No. 228550, July 28, 2021)

Question 52

What is temporary total disability?

Answer 52

The seafarer, upon sign-off from his vessel, must report to the company-designated physician within three days from arrival for diagnosis and treatment.

He is on temporary total disability for the duration of the treatment, but in no case to exceed 120 days, because he is totally unable to work. During which time, he shall receive his basic wage until he is declared fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally.

Question 53

When does temporary becomes permanent or total disability?

Answer 53

If the 120-day initial period is exceeded and no declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare that a permanent or total disability already exists.

Question 54

What needs to be established before before a seafarer may claim permanent total disability benefits from his employer?

Answer 54

It is then settled that before a seafarer may claim permanent total disability benefits from his employer, it must first be established that the company designated physician FAILED to issue a declaration as to the seafarer’s fitness to engage in sea-duty or disability grading within the 120-day or 240-day period reckoned from the time the seafarer reported to the company-designated physician.

Given the timely fit-to-work assessment, there is no basis for Jose to claim total and permanent disability benefits from the petitioners.

(DOEHLE-PHILMAN MANNING AGENCY, INC., VS. JOSE N. GATCHALIAN, JR., G.R. No. 207507, February 17, 2021)

Question 55

What is the effect of concealing material information in order to pass the Pre-Employment Medical Examination (PEME)?

Answer 55

A seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be
**liable for misrepresentation and **shall be disqualified from any compensation and benefits. This is likewise a
**just cause for termination of employment and **imposition of appropriate administrative sanctions.

Section 20(E) of the 2010 POEA-SEC

Question 56

What is the nature of Pre-Employment Medical Examination (PEME)?

Answer 56

PEME is not exploratory but merely determines whether one is “fit for sea service.” The PEME does not state the real state of health of an applicant and does not allow the employer to discover any and all preexisting medical condition with which the seafarer is suffering and for which he maybe taking medication.

The PEME is nothing more than a summary examination of the seafarer’s physiological condition and is just enough for the employer to determine his fitness for the nature of the work for which he is to be employed.

Relatively, the “fit to work” declaration in the Darwin’s PEME cannot be a conclusive proof to show that he was free from any ailment prior to his deployment. The fact that Darwin passed the PEME cannot excuse his willful concealment nor can it preclude PAL Maritime from rejecting his claims. Taken together, Darwin is disqualified from all benefits including sickness allowance.
(PTE vs Dalisay G.R. No. 218115, January 27, 2021)

Question 57

Is the award of attorney’s fees proper despite the seafarer’s malicious concealment?

Answer 57

No. To award attorney’s fees despite the seafarer’s malicious concealment would be tantamount to rewarding his fraudulent conduct.

It is unfair to permit employee to profit from his own wrongdoing and penalize the employer for resisting a baseless claim. It will also amount to unjust enrichment because seafarer has been previously paid disability benefits.

(PTE vs Dalisay G.R. No. 218115, January 27, 2021)

Question 58

When is there a “pre-existing illness or condition”

Answer 58

If prior to the processing of the POEA contract, any of the following is present: (a) the advice of a medical doctor on treatment was given for such continuing illness or condition; or

(b) the seafarer has been diagnosed and has knowledge of such illness or condition but failed to disclose it during the pre-employment medical examination, and such cannot be diagnosed during such examination

Question 59

What is the “reasonable linkage test” in the claim for total and permanent disability?

Answer 59

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.”

A seafarer is not entitled to total and permanent disability benefits for failure to prove that a reasonable link exists between his illnesses and nature of work.

Question 60

What is Misconduct as a ground for dismissal?

Answer 60

Misconduct is improper or wrong conduct. It is the transgression
of some established and definite rule of action, a forbidden act, [ or a willful]
dereliction of duty, and implies a wrongful intent.

Question 61

How can Misconduct be a just cause for dismissal?

Answer 61

To be a just cause
for dismissal,

(a) the misconduct must be serious;
(b) it must relate to the
performance of the employee’s duties showing that the employee has become
unfit to continue working for the employer; and
( c) it must have been
performed with wrongful intent.

Question 62

When can loss of trust and confidence can be a ground for dismissal?

Answer 62

When:

1. the employee concerned must be holding a position of trust
2. there must be an act that would justify the loss of trust and confidence. And in order to constitute a just cause for dismissal, the act complained of must be work-related such as
   would show the employee concerned to be unfit to continue working for the employer.

Question 63

When can dismissal based on loss of trust and confidence valid?

Answer 63

To justify a valid dismissal based on loss of trust and confidence, the concurrence of two (2) conditions must be satisfied:
(1) the employee concerned must be holding a position of trust and confidence; and
(2) there must be an act that would justify the loss of trust and confidence.

Question 64

In terminating managerial employees based on loss of trust and confidence, what proof is required?

Answer 64

Proof beyond reasonable doubt is NOT required.

The mere existence of a basis for believing that such employee has breached the trust of his employer is enough.

It must be genuine, not a mere afterthought intended to justify an earlier action taken in bad faith.

Managerial employees could not simply be dismissed on account of their position and this Court agrees with the incisive findings of the LA that the performance evaluation and the memoranda deserves no merit as these were not even furnished to Manrique. ( A copy of the evaluation was given to Complainant)

Manrique vs Delta Earthmoving
G.R. No. 229429, November 09, 2020 )

Question 65

What are the two facets of dismissal from employment?

Answer 65

First, the legality of the act of dismissal, which constitutes substantive due process; and

Second, the legality of the manner of dismissal, which constitutes procedural due process.

The burden of proof rests upon the employer to show that the disciplinary action was made for lawful cause or that the termination of employment was valid.

Question 66

What are the elements of serious misconduct to be a just cause for dismissal?

Answer 66

Serious Misconduct to be a just cause for dismissal, the concurrence of the following elements is required:
(a) the misconduct must be serious;
(b) it must relate to the performance of the employee’s duties showing that the employee has become unfit to continue working for the employer; and
(c) it must have been performed with wrongful intent.

Question 67

What steps are to be taken by employer after determining that termination of employment is justified?

Answer 67

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.

Question 68

What is the two written notices before the termination of employment can be implemented?

Answer 68

The employer must furnish the employee with two written notices before the termination of employment can be implemented:
(1) the first apprises the employee of the particular acts or omission for which his dismissal is sought; and

(2) the second informs the employee the employer’s decision to dismiss him.[4

Question 69

What are the requisites in order for insubordination, as a just cause for the dismissal of an employee?

Answer 69

The following are the requisites:

(1) the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude;

(2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge.

Question 70

What is the standard for procedural due process?

Answer 70

The standards include:
- serving written notice;
-conducting a hearing or conference; and
-giving the employee ample opportunity to be heard and to prepare their defense.

Question 71

What is the test of constructive dismissal?

Answer 71

The test is: whether a reasonable person in the employee’s position would have felt compelled to give up his position under the circumstances.

Question 72

What is constructive dismissal?

Answer 72

The law recognizes situations wherein the employee must leave his or her work to protect one’s rights from the coercive acts of the employer.

The employee is considered to have been illegally terminated because he or she is forced to relinquish the job due to the employer’s unfair or unreasonable treatment.

Question 73

What is Contract substitution?

Answer 73

Article 34(i) of the Labor Code.

substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment” -

is considered an act of “illegal recruitment” under Section 6(i) of Republic Act No. 8042.

Question 74

Does the failure of the parties to question the jurisdiction of the NLRC ruling on jurisdictional issue vest the labor tribunal with jurisdiction to take cognizance of the claim?

Answer 74

No. It is settled that jurisdiction over the subject matter of a case is conferred by law. It cannot be acquired by waiver or acquiescence of any or all of the parties, by estoppel, or by the erroneous belief of the court or any adjudicative body that it exists.

Question 75

Is the CA correct in sustaining the labor arbiter tribunal’s jurisdiction to rule upon retirement benefits claim involving officers of electric cooperatives?

Answer 75

No.

As the law vested the NEA with jurisdiction over all administrative matters involving officers of electric cooperatives, FIBECO’s denial of, or inaction on Dela Cruz’s claim should have been brought to the NEA’s disposal in accordance with the retirement policy as correctly held by the LA.

In other words, the CA patently erred when it sustained the labor tribunal’s jurisdiction to rule upon Dela Cruz’s retirement benefits claim.

(Dela Cruz vs. FIBECO
G.R. No. 254830. June 27, 2022 )

Question 76

What can be negotiated in terms of government employment?

Answer 76

Only the terms and conditions of government employment NOT fixed by law can be negotiated.

The CDC has valid reason not to implement the increases in salaries and benefits as provided in the renegotiated CBA. (CDC vs Association of CDC G.R. No. 207853. March 20, 2022)

The law fixed the terms and conditions of government employment, and any contract that violates the law is void and cannot be a source of rights and obligations.

Question 77

When is the decision of PVA (Panel of Voluntary Arbitrators) final and executory?

Answer 77

Under the Article 276 of the Labor Code, the award or decision of PVA shall be final and executory after 10 calendar days from notice.

The 10-day should be as the time within which the adverse party may move for a reconsideration from the decision or award of the voluntary arbitrators.

Thereafter, the aggrieved party may appeal to the CA within 15 days from notice pursuant to Rule 43 of the Rules of Court.

Question 78

Are GOCCs officials and employees entitled to benefits and increases?

Answer 78

GOCCs officials and employees are not entitled to benefits and increases without the approval of the President or the Governance Commission.

Question 79

What is the doctrine of Primary jurisdiction, also known as the doctrine of Prior Resort?

Answer 79

Is the power and authority vested by the Constitution or by statute upon an administrative body to act upon a matter by virtue of its specific competence. The doctrine of primary jurisdiction prevents the court from arrogating unto itself the authority to resolve a controversy which falls under the jurisdiction of a tribunal possessed with special competence.

In this case, while the respondents alleged the same set of facts and the same affidavits were submitted before the LA and the POEA, the complaints raised different causes of action. The LA complaint involved the issue of illegal dismissal and various money claims, while the POEA complaint involved administrative disciplinary liability for violation of the 2002 POEA Rules and Regulations Governing the Recruitment and Employment of Land-­Based Overseas Workers. Thus, the doctrine of primary jurisdiction does not apply.

(U R Employed vs. Pinmiliw
G.R. No. 225263. March 16, 2022)

Question 80

Who has jurisdiction to hear and decide claims arising out of an employer-employee relationship involving Filipino workers for overseas deployment?

Answer 80

Section 10 of RA No. 8042

EC. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage.