Q: WHAT IS THE RIGHT THAT WE WILL BE TALKING IN BOOK VI?

A: Security of tenure.

Q: WHAT IS SECURITY OF TENURE?

A: Is a constitutional guarantee that no person/employee will be terminated or dismissed without valid or just
cause and without substantive and procedural due process being afforded to him.(as provided in the
Constitution).

Q: WHAT IS EMPLOYMENT EQUATED FOR (IN CONSTITUTION)?

A: Article III section I Bill of rights - Property.

Q: DUE PROCESS IN TERMINATION MEANS?

A: That employment cannot be terminated without VALID CAUSE (substantive due process) and VALID
PROCEDURE (procedural due process). That is, except on grounds provided for by law and the process for
terminating the employee is also provided by law.
Q: 2 COMPONENTS OF DUE PROCESS?
A:
1. Substantive
2. Procedural.

Q: PROCEDURAL DUE PROCESS IS THE RIGHT TO BE HEARD. BUT IN LABOR CASES, IT IS NOT THE
RIGHT TO BE HEARD WHICH IS GURANTEED BUT?
A: The OPPORTUNITY to be heard. Whether you took the chance or not. Therefore, 2 components of
procedural due process in Labor Cases are:
1. Notice and
2. Opportunity to be heard

Q: IS MERE NOTICE ENOUGH? WOULD NOTICE BE SUFFICIENT WITHOUT OPPORTUNITY TO BE

HEARD?
A: IT DEPENDS on the ground of termination.
For authorized causes, notice alone is sufficient. For just causes, notice and opportunity to be heard are
required.

Q: WHAT ARE THE 2 CLASSIFICATIONS OF GROUNDS FOR TERMINATION?

A:
1. Just causes
2. Authorized causes.

Q: WHY REQUIRE HEARING IN JUST CAUSES?

A: Because the grounds therein are imputable to the employees, thus, they should be given the opportunity to
be heard.

Q: TANGGA-AN CASE.
A: Employment involves the fundamental SURVIVAL of the employees and their families.

Q: ALERT SECURITY CASE.

A: Employment is the LIFEBLOOD of the employee.

Q: WHAT ARE THE CLASSIFICATIONS OF EMPLOYEES FOR PURPOSES OF BOOK VI?

A:
1. Regular
2. Casual
3. Project
4. Seasonal
5. Probationary
The extent (grounds and process) of security of tenure will depend upon such classification.

03-10-2015

Q: WHAT HAVE YOU LEARNED IN LABOR STANDARDS LAW?

A: No employer-employee relationship, Labor Code will not apply.

Q: WHAT IS FEATHERBEDDING?
A: When the union demands from employer to give it certain concessions just so to agree to a CBA (like
lagay): ULP
Q: WHAT IS BLUESKY BARGAINING?
A: Asking for terms which are impossible for employer to agree on. There is no good faith in bargaining
because the union knows that it is impossible. On the part of employee.

Q: WHAT IS SURFACE BARGAINING?

A: The employer just goes thru bargaining but has actually no plan of pursuing or implementing.
On the part of employer.

Q: WHAT ARE THE 2 GENERAL GROUNDS/FACTORS THAT MAKE DISMISSAL LEGAL OR ILLEGAL?
A:
1. Ground or reason for termination
2. Process of termination

Q: WHAT SHOULD IT BE TO HAVE A VALID TERMINATION ON THE 1st FACTOR?

A: The grounds must be provided for by law.

Q: WHAT SHOULD IT BE TO HAVE A VALID TERMINATION ON THE 2nd FACTOR?

A: The process must be provided for by law.

Q: WHAT IS REQUIRED IN THE PROCESS OF TERMINATION?

A: Notice and opportunity to be heard.

Q: WHAT IS THE DIFFERENCE BETWEEN HEARING AND OPPORTUNITY TO BE HEARD?

A: Hearing requires confrontation of witness. But in an opportunity to be heard, it is enough that the employee
is given the chance to explain himself. It is not trial-type hearing.

Q: IS IT ALWAYS NOTICE AND OPPORTUNITY TO BE HEARD?

A: NO. Both are required only in case of just causes of termination, not in the case of authorized causes where
notice is sufficient.

Q: WHY?
A: Because just causes are imputable to employee, thus he must be given the chance to be heard.

Q: WHAT IS THE REQUIREMENT FOR NOTICE ON JUST CAUSES?

A: 2 notices:
1. NTE (Notice to Explain) -
2. NTD (Notice to Dismiss)
There must be a period specifically indicated in the NTE because after such period, the employee may be
dismissed.

Q: WHAT IS THE REQUIREMENT FOR NOTICE ON AUTHORIZED CAUSES?

A: 1 notice but given to 2 addresses:
1. Employee
2. DOLE

Q: WHO IS A REGULAR EMPLOYEE?

A: An employee doing work necessary AND desirable to the usual trade and business of the employer and
who has rendered service for more than 6 months.

All of the types of employees in Book VI have security of tenure but it depends on the EXTENT (or
GROUNDS).

Q: WHO HAS THE LEAST GROUND OF SECURITY OF TENURE?

A: Regular employee because others have MORE grounds to be terminated.

Q: WHO ARE PROBATIONARY EMPLOYEES?

A: An employee doing work necessary AND desirable to the usual trade and business of the employer and
who has not rendered service for more than 6 months.

Q: WHAT IS THE PURPOSE OF PROBATIONARY EMPLOYEE?

A: To determine the fitness of the employee for the work he was hired.

Q: WHAT ARE THE GROUNDS FOR TERMINATION OF REGULAR EMPLOYEES?

A: Those provided for by law.

Q: WHAT ARE THE GROUNDS FOR TERMINATION OF PROBATIONARY EMPLOYEES?

A: Those provided for by law and if he fails to qualify as regular employee in accordance with reasonable
standards made known to the employee at the time of engagement.
Q: WHAT ARE THE 2 FACTORS IN THE TERMINATION OF PROBATIONARY EMPLOYEES?
1. Reasonable performance standard
2. Made known to the employee at the time of engagement

The grounds for termination of the other types of employees are reflective of the nature of employment.

Q: WHO ARE PROJECT EMPLOYEES?

A: Those hired to do work necessary AND desirable constituting a specific project of the employer, the
duration of which is known at the time of engagement (at the beginning of the project). The duration of the
period is not fixed by the period but depends on the project.

Q: WHAT ARE THE GROUNDS FOR TERMINATION OF PROJECT EMPLOYEES?

A: Those provided for by law and the completion of project to which the employee was hired.

Q: WHO ARE CASUAL EMPLOYEES?

A: (?)

Q: WHAT ARE THE GROUNDS FOR TERMINATION OF CASUAL EMPLOYEES?

A: (?)

Casual ripening into regular.

Q: GROUNDS UNDER AUTHORIZED CAUSES OF TERMINATION?

A:
1. Installation of labor-saving devices
2. Redundancy
3. Retrenchment
4. Closure or cessation of business operation

Q: INSTALLATION OF LABOR-SAVING DEVICE/ WHAT DOES IT MEAN?

A: It means that by reason of the installation of such machinery or device, the need for employees is reduced
or extinguished.

Q: WHAT IS REQUIRED SO THAT AUTHORIZED CAUSES BE A VALID GROUND?

A: 2 REQUIREMENTS:
1. That the ground must be true and exist.
2. Reasonable criteria on what and who to dismiss.

Q: WHY MAY EMPLOYER TERMINATE AN EMPLOYEE?

A: Because it is his business. It is his decision to start a business, thus it is his prerogative to dismiss the
employees. But since employment is the lifeblood of the employees, the State has to regulate the causes for
dismissing an employee.

Q: WHAT ARE THESE REASONABLE CRITERIA?

A: For instance, senority in terms of service: the longest should be the last one [FIRST in LAST out] (only
when applicable)

Q: WHAT IS THE DIFFERENCE BETWEEN INSTALLATION OF LABOR SAVING DEVICE AND

REDUNDANCY?
A: Example of redundancy: streamlining of operations (when reviewing the organization, the management
determines that there is redundant positions)
Phasing out of a line is not redundancy but PARTIAL CLOSURE, although it may result to redundancy

Q: ANOTHER AUTHORIZED CAUSE?

A: Retrenchment: for ACTUAL loss incurred or for PROJECTED loss.

Q: ANOTHER AUTHORIZED CAUSE?

A: Closure of business operation.

Q: CAN CLOSURE BE AUTHORIZED EVEN IF NOT DUE TO LOSSES?

A: Yes, there can be a closure even without reason, in the same manner that he can open without any reason.

Q: ANOTHER AUTHORIZED CAUSE? A: Disease.

Q: WHO SHALL DETERMINE?
A: Public Health Authority: usually the City Health Officer or Municipal Health Officer. Thus there must be a
certification from the CHO or MHO that the disease is of such nature that continued employment is detrimental
to his health and to his co-employees; and that the disease is not curable within 6 months.

Q: CONSEQUENCES OF TERMINATION FOR AUTHORIZED CAUSES?

A: Separation pay.
For labor saving device and redundancy : if not served 1 year, entitled to 1 month pay
For retrenchment to prevent losses and closure : if not served 1 year, entitled to month pay (?)

Q: IF CLOSURE DUE TO SERIOUS LOSSES, IS THERE SEPARATION PAY?

A: No, as a matter of right. But the Court also looks into the capacity of the company to pay.

Q: WHAT ARE THE 2 TYPES OF RETRENCHMENT?

A:
1. Retrenchment to prevent losses
2. Retrenchment due to actual losses
Thus, you can retrench even without losses but the ground should be to PREVENT losses.

Q: WHAT WILL YOU SHOW TO PROVE RETRENCHMENT?

A: For retrenchment to prevent losses, an audited FS must be shown showing the trend (3 years or best if 5
years). But in retrenchment due to actual losses, the audited FS may be for 1 year only.

Q: WHAT WILL YOU SHOW TO PROVE REDUNDANCY?

A: That certain positions are no longer necessary for streamlining operations.

Q: WHAT WILL YOU SHOW TO PROVE INSTALLATION OF LABOR SAVING DEVICE?

A: Show the labor saving device installed.

Q: WHAT WILL YOU SHOW TO PROVE CLOSURE?

A: Need not show anything. It is a prerogative of the employer. If in case of serious business losses, may show
FS to avoid payment of separation pay.

Q: WHAT IS THE GROUND ON TERMINATION OF EMPLOYEE?

A: Resignation employees termination of employment for whatever reason.

Q: WHAT IS THE SOLE REQUIREMENT OF RESIGNATION?

A: Voluntary.

Q: WHAT ARE THE OTHER GROUNDS FOR TERMINATION BY EMPLOYEE?

A: Inhuman treatment.

Q: WHAT IS THE CONSEQUENCE OF ILLEGAL TERMINATION OF EMPLOYEE? WHEN IS IT ILLEGAL?

A: Only when the employee does not give notice to the employer.

Q: IS NOTICE BY EMPLOYEE TO EMPLOYER REQUIRED IN ALL CASES?

A: No, in case of inhuman treatment for instance.

Q: WHAT IS THE PERIOD OF SUCH NOTICE?

A: 30 days in advance.

Q: WHAT HAPPENS IF THE EMPLOYEE LEAVES BEFORE THE END OF 30 DAYS?

A: Employee may be held liable for damages for whatever the latter might have suffered for finding a
replacement. But the employer cannot prohibit him from leaving, otherwise it will constitute an involuntary
servitude.

Q: WHAT ARE THE GROUNDS FOR JUST CAUSES?

A: 7.
1. Serious misconduct
2. Willful disobedience
3. Gross neglect of duty
4. Habitual neglect of duty
5. Fraud or willful breach of trust
6. Commission of crime
7. Analogous cases: if cannot be categorized in any of the above
Tests of these grounds are:
1. Reasonableness
2. Commensurateness

Q: WHEN DOES AN EMPLOYEE HAVE THE BURDEN OF PROVING JUST CAUSE (SINCE THE
EMPLOYER HAS THE BURDEN OF PROOF)?
A: That he was dismissed. That is the first thing to prove by the employee. After which, the employer has the
burden of proving just cause of dismissal.

Q: WHAT IS GROSS MISCONDUCT?

A: Gross misconduct may either be work-connected or not connected. If not work-connected, he must be
informed, that is, contained in the company rules and regulations.

Q: TO BE CONSIDERED GROSS, WHAT IS THE REQUIREMENT?

A: No standard requirement. It depends on the circumstances. But what is controlling is that it is
COMMENSURATE to the termination. Is it so serious as to warrant dismissal. It is thus a question of fact which
may be resolved by the Labor Arbiter.

Q: HOW ABOUT WILFUL DISOBEDIENCE?

A:
1. Order is reasonable and lawful
2. Order is sufficiently known to the employee
3. Order is in connection with the function of employee
4. Disobedience is intentional

Q: SHOULD IT BE BOTH THAT THE EMPLOYEE IS INFORMED OF THE ORDER AND THAT
DISOBEDIENCE IS WILFUL?
A: Yes. You can be informed of the order and yet not willfully disobey the order; such as when you get sick.

Q: HOW ABOUT GROSS NEGLECT OF DUTY?

A: Test is the damage resulted to employer or co-worker.

Q: HOW ABOUT HABITUAL NEGLECT OF DUTY?

A: Usually contained in the company rules and regulations. 1st offense, 2nd, etc. Again, the test is
commensurality.

Q: HOW ABOUT FRAUD OR WILFUL BREACH OF TRUST? AKA: LOSS OF TRUST AND CONFIDENCE?
A: All employees are considered bearing the trust of employer. Thus, the ground is that the act committed
must affect the honesty of the employee. Is the breach so grave that it is commensurate to the dismissal?
Again, the test of commensurateness. This will be answered by the circumstance of the case.
Q: WHAT ARE THE 2 GENERAL GROUNDS THAT MAKE DISMISSAL ILLEGAL?
A:
1. When the ground is not among those provided for by law
2. When the required process for termination was not complied with

Q: WOULD THE EFFECT OF THE 2 ABOVE THE SAME?

A: No.

Q: IF NO VALID GROUND, WHAT IS THE CONSEQUENCE?

A: Entitled to REINSTATEMENT (to the same position or substantially the same position if the position is no
longer present; it cannot be a lower position). Or SEPARATION PAY if there is a strained relationship between
the parties. BACKWAGES also from the time of dismissal up to the time of finality of decision; that is,
depending on the time it attained finality. Also, DAMAGES. ATTORNEYS FEES.

Q: WHEN DOES IT ATTAIN FINALITY?

A: When the period for questioning has elapsed and there is no more question on the decision.

Q: ARE DAMAGES A MATTER OF RIGHT?

A: No. Right to damages is not a matter of right. Only if it is attended by bad faith or violation of law is so gross.
Nominal damages (by the mere fact that it happens) are awarded by some court and not by some other court.

Q: IS ATTORNEYS FEES A MATTER OF RIGHT?

A: Yes, because it is provided for by law. Since here, the employee is compelled to litigate. At 10%, but it can
be more or can be less.
CAUSES OF ILLEGALITY:
ULP, Strike/Lockout, Termination

In procedural, the procedure is laid down by law. You cannot claim good faith in violating a procedure. But in
cause, it may be that it is only misinterpreted. There can be no good faith strike if it is because of a violation of
a procedure.

DOCTRINE OF TOTALITY OF CONDUCT OF EMPLOYER is also considered in ULP.

Is the compulsory age of 65 subject to agreement by the parties? Yes. Can it be higher as agreed upon? No. It
is not beneficial to employee. The law only stipulates what is OPTIONAL retirement. It may also be legislated.
Lower retirement for mining or underground workers is acceptable. Stewardees also (at 55). Agreements that
will benefit employees are always upheld.

Notice to Explain: reasonable hours. It depends on the situation. But a settled jurisprudence said 72 hours (3
days).

2 GROUNDS FOR TERMINATION:

1. Reasonableness
2. Commensurality

Is performance a ground only for termination of probationary employees? No. Also for regular, under the Just
Causes. In case of analogous cases, always look into the personal performance at work and personal
performance in life of the employee. Example, is infidelity a ground for dismissal? It depends. If such behavior
has a connection on work performance.

If an employee is illegally dismissed, reinstatement. But no reinstatement say for example there is strained
relationship. Strained relation is very strictly construed because reinstatement is a guaranty, a form of security
of tenure. In this case, separation pay.

Cases when reinstatement (but separation in lieu of reinstatement) is awarded in case of ILLEGAL
DISMISSAL:
1. Strained relationship
2. When there is abolition/unavailability of a position or substantially the same position (e.g. phase out of a
department)

Attorneys fees are for the account of the losing party and awarded to the winning party, not to the lawyer. It is
pegged at 10% but it may be less or more, but not unconscionably more.
May a lawyer demand attorneys fees higher than 10%? Yes, it depends on the agreement of the parties. But
not for recovery of wages.

1. Valid certification election: 50% + 1 of voters in the CBU

CBU: 100 voters, 100 voted

Union1: 45
Union 2: 40
No-union: 5

For CE: 50+ 1 valid votes cast

If below that, no CE, no run-off. There must be valid CE first before run-off.

To have a winner: 1 of them should get at least 26 votes. Here, since there is no run-off, if the no-union wins, it
becomes unorganized establishment.
To have a run-off: (minimum)
Union 1: 13
Union 2: 13
No-union: 25 (non-union is not a winner because it is less than 26)
51

ULP on the part of unions: Can there be ULP committed by a single employee? No. It may be illegal act but not
ULP. ULP is an act directed against self-organization. If a union is the one committing it, it may be against an
individual employee.

What acts have been considered as ULP.

The extent of security of tenure is determined by employment status. The criteria/standards must be
communicated to the employee at the start of the employment.