Employment; Househelper; Driver (2012)

No. V. a. Baldo was dismissed from employment for having beenabsent without leave
(AWOL) for eight (8) months. It turned outthat the reason for his absence was his
incarceration after he was mistaken as his neighbor’s killer. Eventually acquitted and
released from jail, Baldo returned to his employer and demanded reinstatement and
full backwages. Is Baldo entitled to reinstatement and backwages? Explain your
answer. (3%)

SUGGESTED ANSWER: Yes, Baldo is entitled to reinstatement. Although he shall not be

entitled to backwages during the period of his detention, but only from the time the
company refuse to reinstate him. (Magtoto v. NLRC, 140 SCRA 58 [1985]).

ALTERNATIVE ANSWER: No, Baldo is not entitled to reinstatement and backwaages.

The dismissal was for cause, i.e., AWOL. Baldo failed to timely inform the employer of
the cause of his failure to report for work; hence, prolonged absence is a valid ground
to terminate employment.

Distinguish briefly, but clearly, a "househelper" from a "homeworker." (2%)

SUGGESTED ANSWER: Art. 141. – Domestic Helper – one who performs services in the
employers house which is usually necessary or desirable for the maintenance and
enjoyment thereof and includes ministering to the personal comfort and convenience
of the members of the employer‘s household, including the services of a family driver.

Art. 153. – Homeworker – is an industrial worker who works in his/her home processing
raw materials into finished products for an employer. It is a decentralized form of
production with very limited supervision or regulation of methods of work.

The Labor Code provides that ―any alien seeking admission to the Philippine for
employment purposes and any domestic or foreign employer who desires to engage
an alien for employment in the Philippines shall obtain an employment permit from the
Department of Labor.‖ ‖The employment permit may be issued to a non-resident alien
or to the applicant employer after a determination of the non-availability of a person
in the Philippines who is competent, able and willing at the time of application to
perform the services for which the alien is desired.

Labor-Only Contracting vs. Job-Only Contracting (2012) No. I. a. Distinguish Labor-

Only contracting and Job-Only contracting. (5%) SUGGESTED ANSWER: Labor-only
contracting: The contractor has substantial capital or investment in the form of tools,
equipment, machineries, work premises, among others, and the employees of the
contractor are performing activities which are directly related to the main business of
the principal (Sy, et al v. Fairland Knitcraft Co., Inc., G. R. Nos. 182915 &189658,
December 12, 2011) Legitimate Job Contracting: The contractor ha substantial capital
and investment in the form of tools, equipment , etc. and carries a distinct and
independent business and undertakes to perform the job, work or service on its own
manner and method, and free from control and direction of the principal in all matters
connected with the performance of the work except as to the results thereof
(Escasinas v. Shangri-la‘s Mactan Island Resort, 580 SCRA 344 [2009]). Labor-only
contracting is prohibited while Job Contracting is allowed by law.

(1) Job-only Contracting is legal; whereas, Labor-Only Contracting is prohibited by

law. (2) In Job-Only contracting, the principal is only an indirect employer; whereas,
in Labor-only contracting, the principal becomes the direct employer of the
employees of the labor-only contractor.
(3) The liability of the principal in Job-only Contracting vis-à-vis employees of the job-
contractor is for a limited purpose only, e.g. wages and violation of labor standard
laws; whereas, the liability of the principal in Labor-Only Contracting is for a
comprehensive purpose and, therefore, the principal becomes solidarily with the
labor-only contractor for all the rightful claims of the employees. In Job-Only
contracting, no employer-employee relationship exists between the principal and the
employees of the job contractor; whereas, in Labor-Only contracting, the law creates
an employer-employee relationship between the principal and the employees of the
labor-only contractor.

Wages; Employee‘s Wage; Facilities (2010)

No. XXIII. A worked as a roomboy in La Mallorca Hotel. He sued for underpayment of

wages before the NLRC, alleging that he was paid below the minimum wage. The
employer denied any underpayment, arguing that based on long standing, unwritten
policy, the Hotel provided food and lodging to its housekeeping employees, the costs
of which were partly shouldered by it and the balance was charged to the employees.
The employees’ corresponding share in the costs was thus deducted from their wages.
The employer concluded that such valid deduction naturally resulted in the payment
of wages below the prescribed minimum. If you were the Labor Arbiter, how would
you rule? Explain. (3%)

SUGGESTED ANSWER: I will rule in favor of A. Even if food and lodging were provided
and considered as facilities by the employer, the employer could not deduct such
facilities from its workers‘ wages without compliance with law (Mayon Hotel &
Restaurant v. Adana, 458 SCRA 609 [2005]). In Mabeza v. NLRC (271 SCRA 670 [1997]),
the Supreme Court held that the employer simply cannot deduct the value form the
employee‘s wages without satisfying the following: (a) proof that such facilities are
customarily furnished by the trade; b) the provision of deductible facilities is voluntarily
accepted in writing by the employee; and (c) the facilities are charged at fair and
reasonable value.
Wages; Holiday Pay (2010)
No. IV. A, a worker at ABC Company, was on leave with pay on March 31, 2010.
He reported for work on April 1 and 2, Maundy Thursday and Good Friday,
respectively, both regular holidays. Is A entitled to holiday pay for the two
successive holidays? Explain. (3%) SUGGESTED ANSWER: Yes, A is entitled to
holiday pay equivalent to two hundred percent (200%) of hi regular daily wage
for the two successive holidays that she worked (Section 6[a], Rule IV, Book III of
the Omnibus Rule Implementing the Labor Code).

No, following the ―No work No Pay‖ principle, the supervisors are not entitled to
their money claim for unpaid salaries. They should not be compensated for
services skipped during the strike. The age-old rule governing the relation
between labor and capital, or management and employee of a ―fair day‘s wage
for a fair day‘s labor‖ remains as the basic factor in determining employees‘ wage
(Aklan Electric Cooperative, Inc. v. NLRC, G.R. No. 121439, January 25, 2000).

SUGGESTED ANSWER: Yes, Section 10 of Rep. Act No. 8042 (as amended by Rep.
Act No. 10022) provides that in case of termination of overseas employment
without just, valid or authorized cause as defined by law or contract, or any
unauthorized deductions from the migrant worker‘s salary, the worker shall be
entitled to the full reimbursement of his placement fee with interest at twelve
percent (12%) per annum, plus his salaries for the unexpired portion of his
employment contract or for three (3) years for every year of the unexpired term,
whichever is less (cf. Serrano v. Gallant Maritime, 582 SCRA 254 [2009]).

The twin requirements of due process are notice and hearing to be given to the
worker. There is likewise a two-notice requirement rule, with the first notice
pertaining to specific causes or grounds for termination and directive to submit a
written explanation within a reasonable period. ―The second notice pertains to
notice of termination. Pursuant to Perez v. Philippine Telegraph and Telephon
Company (G.R. N. 152048, 7 April 2009), the Court held that a hearing or
conference is not mandatory, as long as the employee is given ―ample
opportunity to be heard‖, i.e. any meaningful opportunity (verbal or written) to
answer the charges against him or her and submit evidence in support of the
defense, whether in a hearing, conference, or some other fair, just and equitable
way.
Dismissal; Illegal Dismissal; Separation Pay in Lieu of Reinstatement (2009) No.
XVIII. a. Cite four (4) instances when an illegally dismissed employee may be
awarded separation pay in lieu of reinstatement. (3%)

SUGGESTED ANSWER: These four instances are:

(i) in case the establishment where the employee is to be reinstated has

closed or ceased operations;
(ii) where the company has been declared insolvent;
(iii) former position no longer exists at the time of reinstatement for reason
not attributable to the fault of the employer; and
(iv) where the employee decides not to be reinstated as when he does not
pray for reinstatement in his complaint or position paper

Dismissal; Authorized Causes; Closure & Cessation of Business (2012)

No. VIII. a. ABC Tomato Corporation, owned and managed by three (3) elderly
brothers and two (2) sisters, has been in business for 40 years. Due to serious
business losses and financial reverses during the last five (5) years, they decided
to close the business. As counsel for the corporation, what steps will you take prior
to its closure? (3%)
SUGGESTED ANSWER:

I will serve notice to both the worker and the Regional Office of the Department
of Labor and Employment, at least one (1) month before the intended date of
closure. (Art. 283, Labor Code); and (2) provide proof of ABC‘s serious business
losses or financial reverses (Balasbas v. NLRC, G.R. No. 85286, August 24, 1992)

SUGGESTED ANSWER: No, where closure is due to serious business losses, no

separation pay is required. (North Davao Mining Corp. v. NLRC, 254 SCRA 721; JAT
General Services v. NLRC, 421 SCRA 78 [2004])

No. VIII. d. ABC Tomato Corporation, owned and managed by three (3) elderly
brothers and two (2) sisters, has been in business for 40 years. Due to serious
business losses and financial reverses during the last five (5) years, they decided
to close the business. Are the employees entitled to separation benefits? (3%)
SUGGESTED ANSWER:
Yes, in case of cessation of operations of establishment or undertaking not due to
serious business losses or financial reverses, the separation pay shall be
equivalent to one (1) month pay or at least one-half (1/2) month pay for every
year of service, whichever is higher. A fraction of at least six (6) months shall be
considered as one (1) whole year (Art. 283, Labor Code).

Dismissal; Just Cause; Loss of Trust and Confidence (2009) No. V. b. Domingo, a
bus conductor of San Juan Transportation Company, intentionally did not issue a
ticket to a female passenger, Kim, his long-time crush. As a result, Domingo was
dismissed from employment for fraud or willful breach of trust. Domingo contests
his dismissal, claiming that he is not a confidential employee and, therefore,
cannot be dismissed from the service for breach of trust. Is Domingo correct?
Reasons. (2%)

SUGGESTED ANWER:
Domingo as bus conductor holds a position wherein he was reposed with the
employer‘s trust and confidence. In Bristol Myers Squibb (Phils.) v. Baban (574
SCRA 198 [2008]), the Court established a second class of positions of trust that
involve rank-and-file employees who, in the normal and routine exercise of their
functions, regularly handle significant amounts of money. A bus conductor falls
under such second class persons. This does not mean, however, that Domingo
should be dismissed. In Etcuban v. Sulpicio Lines (448 SCRA 516 [2005]), the Court
held that where the amount involve is miniscule, an employee may not be
dismissed for loss of trust and confidence.

Dismissal; Just Cause; Serious Misconduct (2013)

No. I. a. Jose and Erica, former sweethearts, both worked as sales

representatives for Magna, a multinational firm engaged in the manufacture
and sale of pharmaceutical products. Although the couple had already broken
off their relationship, Jose continued to have special feelings for Erica. One
afternoon, Jose chanced upon Erica riding in the car of Paolo, a co-employee
and Erica's ardent suitor; the two were on their way back to the office from a
sales call on Silver Drug, a major drug retailer. In a fit of extreme jealousy, Jose
rammed Paolo's car, causing severe injuries to Paolo and Erica. Jose's flare up
also caused heavy damage to the two company-owned cars they were driving.
As lawyer for Magna, advise the company on whether just and valid grounds
exist to dismiss Jose. (4%)
SUGGESTED ANSWER: Jose can be dismissed for serious misconduct, violation of
company rules and regulations, and commission of a crime against the
employer‘s representatives.

Article 282 of the Labor Code provides that an employer may terminate an
employment for any serious misconduct or willful disobedience by the employee
of the lawful orders of his employer or his representatives in connection with his
work. Misconduct involves ―the transgression of some established and definite
rule of action, forbidden act, a dereliction of duty, willful in character, and implies
wrongful intent and not mere error in judgment.‖ For misconduct to be serious and
therefore a valid ground for dismissal, it must be:
1. Of grave and aggravated character and not merely trivial or unimportant and
2. Connected with the work of the employee.

Dismissal; Just Cause; Serious Misconduct; Performance of Official Work (2013)

No. I. b. Jose and Erica, former sweethearts, both worked as sales representatives
for Magna, a multinational firm engaged in the manufacture and sale of
pharmaceutical products. Although the couple had already broken off their
relationship, Jose continued to have special feelings for Erica.

One afternoon, Jose chanced upon Erica riding in the car of Paolo, a co-
employee and Erica's ardent suitor; the two were on their way back to the office
from a sales call on Silver Drug, a major drug retailer. In a fit of extreme jealousy,
Jose rammed Paolo's car, causing severe injuries to Paolo and Erica. Jose's flare
up also caused heavy damage to the two company-owned cars they were
driving. Assuming this time that Magna dismissed Jose from employment for cause
and you are the lawyer of Jose, how would you argue the position that Jose's
dismissal was illegal? (4%)
SUGGESTED ANSWER:

The offense committed by Jose did not relate to the performance of his duties.
On the basis of the foregoing guidelines, it can be concluded that Paolo was not
guilty of serious misconduct; Paolo was not performing official work at the time of
the incident (Lagrosas v. Bristol Mayers Squibb, G.R. No. 168637/170684 [2008]).

Additionally, there was no compliance with the rudimentary requirement of due

process.
Dismissal; Just Cause; Willful Disobedience (2008)
No. XII. Arnaldo, President of "Bisig" Union in Fem wear Company, readied himself
to leave exactly at 5:00 p.m. which was the end of his normal shift to be able to
send off his wife who was scheduled to leave for overseas. However, the General
Manager required him to render overtime work to meet the company's export
quota. Arnaldo begged off, explaining to the General Manager that he had to
see off his wife who was leaving to work abroad. The company dismissed Arnaldo
for insubordination. He filed a case for illegal dismissal. Decide (6%)

SUGGESTED ANSWER: Compulsory overtime work may be required when the

completion or continuation of work started before the 8th hour is necessary to
prevent serious obstruction or prejudice to the business or operations of the
employer (Art. 89, Par. E, Labor Code; Section 10, Rule I, Book III, Implementing
Rules). On the other hand, dismissal for willful disobedience of the employer‘s
lawful orders, requires that: (a) the assailed conduct must have been willful or
intentional, characterized by a ―wrongful and perverse attitude;‖ and (b) the
order violated must have been reasonable, lawful, made known to the employee
and must pertain to his duties (Dimabayao v. NLRC, G.R. No. 122178, February 25,
1999; Alcantara, Jr. v. CA, G.R. No. 143397, August 06, 2002).

Although the order to render overtime is valid. Arlando should not be dismissed
because he was motivated by his honest belief that the order unreasonably
prevented him from sending off his wife who was leaving for overseas. While the
circumstances do not justify his violation of the order to render overtime, they do
not justify Arnaldo‘s dismissal either (Alcantara, Jr. v. CA, G.R. No. 143397, August
06, 2002).

Dismissal; Payroll Reinstatement (2009) No. VIII. c. Alexander, a security guard of

Jaguar Security Agency (JSA), could not be given any assignment because no
client would accept him. He had a face only a mother could love. After six (6)
months of being on "floating" status, Alexander sued JSA for constructive
dismissal. The Labor Arbiter upheld Alexander’s claim of constructive dismissal
and ordered JSA to immediately reinstate Alexander. JSA appealed the decision
to the NLRC. Alexander sought immediate enforcement of the reinstatement order
while the appeal was pending. JSA hires you as lawyer, and seeks your advice
on the following: If the order of reinstatement is being enforced, what should JSA
do in order to prevent reinstatement? (2%)

SUGGESTED ANSWER: The employer cannot prevent reinstatement but may,

however, opt for reinstatement of the employee in the payroll of the company
without requiring him to report back to his work (Zamboanga City Water Distrcit v.
Buat, 232 SCRA 587 [1994]).
Dismissal; Reinstatement; Non-Compliance (2007)

No. X. Discuss briefly the instances when non-compliance by the employer with
a reinstatement order of an illegally dismissed employee is allowed. (5%)

SUGGESTED ANSWER: Despite a reinstatement order, an employer may not

reinstate an employee in the following instances: (a) when the position or any
substantial equivalent thereof no longer exists; (b) when reinstatement has been
rendered moot and academic by supervening events, such as insolvency of the
employer as declared by the court or closure of the business; or (c) the existence
of strained relations between the employer and the illegally dismissed employee,
provided the matter is raised before the Labor Arbiter.

Dismissal; Reinstatement Without Backwages (2009) No. V. a. Baldo was dismissed

from employment for having been absent without leave (AWOL) for eight (8)
months. It turned out that the reason for his absence was his incarceration after
he was mistaken as his neighbor’s killer. Eventually acquitted and released from
jail, Baldo returned to his employer and demanded reinstatement and full
backwages. Is Baldo entitled to reinstatement and backwages? Explain your
answer. (3%)

SUGGESTED ANSWER: Yes, Baldo is entitled to reinstatement. Although he shall not

be entitled to backwages during the period of his detention, but only from the
time the company refuse to reinstate him. (Magtoto v. NLRC, 140 SCRA 58 [1985]).

Employee; Contractual Employee of Legitimate Contractor (2012) No. X. b. Does

the performance by a contractual employee, supplied by a legitimate
contractor, of activities directly related to the main business of the principal make
him a regular employee of the principal? Explain. (5%)
SUGGESTED ANSWER:
No, the element of an employee‘s ―performing activities which are directly
related to the principal business of such employer‖ does not actually matter for
such is allowed by Art. 107 of the Labor Code. An ―independent contractor for
the performance of any work, task, job or project‖ such as Security and Janitorial
Agencies, naturally hire employees whose tasks are not directly related to the
principal business of‖ the company hiring them. Yet, they can be labor-only
contractors if they suffer from either of the twin handicaps of ―substantial capital‖,
―OR‖ ―substantial investment in the form of tools‖, and the like. Conversely,
therefore, the performance by a job-contractor‘s employee of activities that are
directly related to the main business of the principal does not make said
employee a regular employee of the principal.

Employee; Field Personnel vs. Contractual Employee; Benefits (2010) No. XX. A, a
driver for a bus company, sued his employer for nonpayment of commutable
service incentive leave credits upon his resignation after five years of
employment. The bus company argued that A was not entitled to service
incentive leave since he was considered a field personnel and was paid on
commission basis and that, in any event, his claim had prescribed. If you were the
Labor Arbiter, how would you rule? Explain. (6%)

SUGGESTED ANSWER: I will grant the prayer of A. Payment on commission basis

alone does not prove that A is a field personnel. There must be proof that A is left
to perform his work unsupervised by his employer. Otherwise, he is not a field
personnel, thus entitled to commutable service incentive leave (SIL) credits
(Auto Bus v. Bautista, 458 SCRA 578 [2005]).

His action has not yet prescribed, in Auto Bus v. Bautista (supra), the Supreme
Court recognized that SIL is such a unique labor standard benefit, because it is
commutable. An employee may claim his accrued SIL upon his resignation,
retirement, or termination. Therefore, when A resigned after five years, his right of
action to claim ALL of his SIL benefits accrued at the time when the employer
refused to pay his rightful SIL benefits (Art. 291, Labor Code).

Employment contract with a fixed term terminates by its own terms at the end of
such period. The same is valid if the contract was entered into by the parties on
equal footing and the period specified was not designed to circumvent the
security of tenure of the employees. (Brent School v. Zamora, 181 SCRA 702).

To satisfy due process requirement, the DOLE Department Order No. 19, series of
1993, the employer is required to report to the relevant DOLE Regional Office the
fact of termination of project employees as a result of the completion of the
project or any phase thereof in which one is employed.

SUGGESTED ANSWER: Pedro has acquired the status of a regular employee. Pedro
has engaged to perform activities which are necessary or desirable to the usual
business or trade of the employer. Moreover, Pedro has been an ―extra waiter‖
for more than 10 years. Any employer who has rendered service for one year,
whether continuous or broken, shall be considered a regular employee with
respect to the activities of which he is employed and his employment shall
continue while such activity exists (Art. 280, Labor Code).

No. XI. a. Seafarers who have worked for twenty (20) years on board the same
vessel are regular employees. (5%)

SUGGESTED ANSWER: False, seafarers as overseas Filipino workers are fixed0term

employees whose continued rehiring should not be interpreted as a basis for
regularization but rather as a series of contact renewals sanctioned under the
doctrine set by Millares vs. NLRC (Gu-Miro v. Adorable, 437 SCRA 162 [2004]).

Quitclaims; Waivers; Release (2010) No. I. 1. Deeds of release, waivers and

quitclaims are always valid and binding. (2%) SUGGESTED ANSWER:

False, deeds of release, waivers and quitclaims are not always valid and binding.
An agreement is valid and binding only if: (a) the parties understand the terms
and conditions of their settlement; (b) it was entered into freely and voluntarily by
them; and (c) it is contrary to law, morals, and public policy.

Retirement; Types (2007) No. XI. a. A rule, when is retirement due? (5%) SUGGESTED
ANSWER: Article 287 provides for two types of retirement: (A) Optional retirement
– which may be availed of by an employee reaching the age of 60 years; (B)
Compulsory retirement – which may be availed of by an employee upon
reaching the age of 65 years. In both instances, the law imposes the minimum
service requirement of 5 years with the establishment.