LABOR LAW REVIEW 2015 LECTURE

Labor Law

I. Fundamental Principles and Policies

A. Constitutional Provisions

1. Article II, Secs. 9, 10, 11, 13, 14, 18, 20

State PoliciesSection 9.The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.Espina v. Zamora, G.R. No. 143855, September 21, 2010

2000- President Joseph E. Estrada signed into law R.A. 8762 or the Retail Trade Liberalization Act of 2000. It expressly repealed R.A. 1180, which absolutely prohibited foreign nationals from engaging in the retail trade business.

Some embers of the House of Representatives, filed the present petition, assailing the constitutionality of R.A. 8762 on the following grounds:

First, the law runs afoul of Sections 9, 19, and 20 of Article II of the Constitution which enjoins the State to place the national economy under the control of Filipinos to achieve equal distribution of opportunities, promote industrialization and full employment, and protect Filipino enterprise against unfair competition and trade policies.

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Third, foreign retailers like Walmart and K-Mart would crush Filipino retailers and sari-sari store vendors, destroy self-employment, and bring about more unemployment.

Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and DTI Secretary Mar Roxas, etc. countered:

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Third, petitioners have failed to overcome the presumption of constitutionality of R.A. 8762. Indeed, they could not specify how the new law violates the constitutional provisions they cite. Sections 9, 19, and 20 of Article II of the Constitution are not self-executing provisions that are judicially demandable.

SC:But as the Court explained inTaada v. Angara,the provisions of Article II of the 1987 Constitution, the declarations of principles and state policies, are not self-executing. Legislative failure to pursue such policies cannot give rise to a cause of action in the courts.

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In other words, the 1987 Constitution does not rule out the entry of foreign investments, goods, and services. While it does not encourage their unlimited entry into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.The key, as in all economies in the world, is to strike a balance between protecting local businesses and allowing the entry of foreign investments and services.

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The control and regulation of trade in the interest of the public welfare is of course an exercise of the police power of the State. A persons right to property, whether he is a Filipino citizen or foreign national, cannot be taken from him without due process of law.Section 10.The State shall promote social justice in all phases of national development.Define Social Justice:Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.

Bar Exam (11)

Q: For labor, the Constitutionally adopted policy of promoting social justice in all phases of national development means-

1) nationalization of the tools of production2) periodic examination of laws for the common good3) humanization of laws and equalization of economic forces (x)4) revision of laws to generate greater employment

Manila Water v. Del Rosario, G.R. No. 188747, January 29, 2014

In the instant petition, Manila Water essentially questions the award of separation pay to respondent who was dismissed for stealing the companys property which amounted to gross misconduct. It argues that separation pay or financial assistance is not awarded to employees guilty of gross misconduct or for cause reflecting on his moral character.

xxxOur focus will be on the propriety of the award for separation pay.As a general rule, an employee who has been dismissed for any of the just causes enumerated under Article 282of the Labor Code is not entitled to a separation pay.xxxIn exceptional cases, however, the Court has granted separation pay to a legally dismissed employee as an act of "social justice" or on "equitable grounds.In both instances, it is required that the dismissal (1) was not for serious misconduct; and (2)did not reflect on the moral character of the employee.xxxThe policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. At best[,] it may mitigate the penalty but it certainly will not condone the offense. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy of it, like the workers who have tainted the cause of labor with the blemishes of their own character.

In the subsequent case of Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commissionwe expanded the exclusions and elucidated that separation pay shall be allowed as a measure of social justice only in instances where the employee is validly dismissed for causes other than

1) serious misconduct, 2) willful disobedience, 3) gross and habitual neglect of duty, 4) fraud or willful breach of trust, 5) commission of a crimeagainst the employer or his family, or 6) those reflecting on his moral character.

In the same case, we instructed the labor officials that they must be most judicious and circumspect in awarding separation pay or financial assistance as the constitutional policy to provide full protection to labor is not meant to be an instrument to oppress the employers.xxxThe attendant circumstances in the present case considered, we are constrained to deny Del Rosario separation pay since the admitted cause of his dismissal amounts to serious misconduct. He is not only responsible for the loss of the water meters in flagrant violation of the companys policy but his act is in utter disregard of his partnership with his employer in the pursuit of mutual benefits.Section 11.The State values the dignity of every human person and guarantees full respect for human rights.Bar Exam:Q: Which of the two takes precedence, human rights or property rights? Answer: human rights.Section 13.The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.Section 14.The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.Philippine Telegraph v. NLRC, G.R. No. 118978, May 23, 1997

On September 2, 1991, private respondent (Grace de Guzman) was once more asked to join petitioner company as a probationary employee, the probationary period to cover 150 days. In the job application form that was furnished her to be filled up for the purpose, she indicated in the portion for civil status therein that she was single although she had contracted marriage a few months earlier, that is, on May 26, 1991.

It now appears that private respondent had made the same representation in the two successive reliever agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned about the same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she was reminded about the company's policy of not accepting married women for employment. (She was subsequently terminated.)

SC: The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14, Article IIon the Declaration of Principles and State Policies, expressly recognizes the role of women in nation-building and commands the State to ensure, at all times, the fundamental equality before the law of women and men. Corollary thereto, Section 3 of Article XIII(the progenitor whereof dates back to both the 1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to promote full employment and equality of employment opportunities for all, including an assurance of entitlement to tenurial security of all workers. Similarly, Section 14 of Article XIIImandates that the State shall protect working women through provisions for opportunities that would enable them to reach their full potential.

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In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company were dissolved principally because of the company's policy that married women are not qualified for employment in PT & T, and not merely because of her supposed acts of dishonesty.

That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware that the company is not accepting married women employee (sic), as it was verbally instructed to you."Again, in the termination notice sent to her by the same branch supervisor, private respondent was made to understand that her severance from the service was not only by reason of her concealment of her married status but, over and on top of that, was her violation of the company's policy against marriage ("and even told you that married women employees are not applicable [sic] or accepted in our company.")

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Under American jurisprudence, job requirements which establish employer preference or conditions relating to the marital status of an employee are categorized as a "sex-plus" discrimination where it is imposed on one sex and not on the other. Further, the same should be evenly applied and must not inflict adverse effects on a racial or sexual group which is protected by federal job discrimination laws. Employment rules that forbid or restrict the employment of married women, but do not apply to married men, have been held to violate Title VII of the United States Civil Rights Act of 1964, the main federal statute prohibiting job discrimination against employees and applicants on the basis of, among other things, sex.

Section 18.The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

Wesleyan University v. Faculty, G.R. No. 181806, March 12, 2014The Non-Diminution Rule found in Article 100of the Labor Code explicitly prohibits employers from eliminating or reducing the benefits received by their employees. This rule, however, applies only if the benefit is based on an express policy, a written contract, or has ripened into a practice.To be considered a practice, it must be consistently and deliberately made by the employer over a long period of time.An exception to the rule is when "the practice is due to error in the construction or application of a doubtful or difficult question of law."The error, however, must be corrected immediately after its discovery;otherwise, the rule on Non-Diminution of Benefits would still apply.xxxThe Memorandum dated August 16,2005 is contrary to the existing CBA.Neither do we find any reason to disturb the findings of the CA that the Memorandum dated August 16, 2005 is contrary to the existing CBA.Sections 1 and 2 of Article XII of the CBA provide that all covered employees are entitled to 15 days sick leave and 15 days vacation leave with pay every year and that after the second year of service, all unused vacation leave shall be converted to cash and paid to the employee at the end of each school year, not later than August 30 of each year.The Memorandum dated August 16, 2005, however, states that vacation and sick leave credits are not automatic as leave credits would be earned on a month-to-month basis. This, in effect, limits the available leave credits of an employee at the start of the school year. For example, for the first four months of the school year or from June to September, an employee is only entitled to five days vacation leave and five days sick leave.Considering that the Memorandum dated August 16, 2005 imposes a limitation not agreed upon by the parties nor stated in the CBA, we agree with the CA that it must be struck down.In closing, it may not be amiss to mention that when the provision of the CBA is clear, leaving no doubt on the intention of the parties, the literal meaning of the stipulation shall govern.However, if there is doubt in its interpretation, it should be resolved in favor of labor,as this is mandated by no less than the Constitution.(citing Section 18)

Serrano v. Gallant Maritime, G.R. No. 167614, March 24, 2009

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995,to wit:Sec. 10.Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contractor for three (3) months for every year of the unexpired term, whichever is less.x x x x (Emphasis and underscoring supplied)does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal dismissal to their lump-sum salary either for the unexpired portion of their employment contract "or for three months for every year of the unexpired term, whichever is less" (subject clause). Petitioner claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them due process.xxxRespondents appealedto the National Labor Relations Commission (NLRC) to question the finding of the LA that petitioner was illegally dismissed.Petitioner also appealedto the NLRC on the sole issue that the LA erred in not applying the ruling of the Court inTriple Integrated Services, Inc. v. National Labor Relations Commissionthat in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts.xxx

SC: The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary to be awarded to petitioner by reason of his illegal dismissal.The Arguments of PetitionerPetitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a determinate employment period and a fixed salary package.It also impinges on the equal protection clause, for it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction between the two groups;and that it defeats Section 18,Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino workers, whether deployed locally or overseas.xxxLastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries and other emoluments he is entitled to under his fixed-period employment contract.The Arguments of the Solicitor GeneralThe Solicitor General (OSG)points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the minimum terms of petitioner's employment, especially on the matter of money claims, as this was not stipulated upon by the parties.xxxDoes the subject clause violate Section 10,Article III of the Constitution on non-impairmentof contracts?The answer is in the negative.xxx

As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A. No. 8042.

But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed.

xxxDoes the subject clause violate Section 1,Article III of the Constitution, and Section 18,Article II and Section 3, Article XIII on laboras a protected sector?The answer is in the affirmative.Section 1, Article III of the Constitution guarantees:No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the law.Section 18,Article II and Section 3,Article XIII accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights and welfare.xxxOur present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.

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Imbued with the same sense of "obligation to afford protection to labor," the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs.

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In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the perpetuation of the discrimination against OFWs under the subject clause.The OSG defends the subject clause as a police power measure "designed to protect the employment of Filipino seafarers overseas x x x. By limiting the liability to three months [sic], Filipino seafarers have better chance of getting hired by foreign employers." The limitation also protects the interest of local placement agencies, which otherwise may be made to shoulder millions of pesos in "termination pay."The OSG explained further:Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money arereducedunder Section 10 of RA 8042.This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions.Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious.Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agenciesvis-a-vistheir foreign principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of OFWs.The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring foreign employers who default on their contractual obligations to migrant workers and/or their Philippine agents. These disciplinary measures range from temporary disqualification to preventive suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring foreign employers.Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement agencies in enforcing the solidary liability of their foreign principals.Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection.1avvphi1Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality of the subject clause from the lone perspective that the clause directly violates state policy on labor under Section 3,Article XIII of the Constitution.While all the provisions of the 1987 Constitution are presumed self-executing,there are some which this Court has declarednot judicially enforceable, Article XIII being one,particularly Section 3 thereof, the nature of which, this Court, inAgabon v. National Labor Relations Commission,has described to be not self-actuating:Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing in the sense that these are automatically acknowledged and observed without need for any enabling legislation. However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of ideals therein expressed, would be impractical, if not unrealistic. xxxUltimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable rightto stave off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative enactments for their enforceability.(Emphasis added)Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of litigation to every worker or union over every conceivable violation of so broad a concept as social justice for labor.It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges protection through executive or legislative action andjudicial recognition. Its utility is best limited to being an impetus not just for the executive and legislative departments, but for the judiciary as well, to protect the welfare of the working class.And it was in fact consistent with that constitutional agenda that the Court inCentral Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,penned by then Associate Justice now Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on the perpetuation of prejudice against persons favored by the Constitution with special protection -- such as the working class or a section thereof -- the Court may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny.Section 20.The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.Rosario v. Victory Ricemill, G.R. No. 147572, February 19, 2003

Procedural process was not served because no Notice to Explain was served upon the dismissed employee.Indeed, under the Labor Code, only the absence of a just cause for the termination of employment can make the dismissal of an employee illegal. This is clear from Art. 279 which provides:Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.Thus, only if the termination of employment is not for any of the causes provided by law is it illegal and, therefore, the employee should be reinstated and paid backwages. x x x.(Citations omitted)In so ruling, the Court recognized that "the law, in protecting the rights of labor, authorized neither the oppression nor self-destruction of the employer," thus:The refusal to look beyond the validity of the initial action taken by the employer to terminate employment either for an authorized or just cause can result in an injustice to the employer. For not giving notice and hearing before dismissing an employee, who is otherwise guilty of, say, theft, or even of an attempt against the life of the employer, an employer will be forced to keep in his employ such guilty employee. This is unjust.It is true the Constitution regards labor as "a primary social economic force." But so does it declare that it "recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investment. The Constitution bids the State to "afford full protection to labor." But it is equally true that "the law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer. And it is oppression to compel the employer to continue in employment one who is guilty or to force the employer to remain in operation when it is not economically in his interest to do so.x x xOn the other hand, with respect to dismissals for cause under Art. 282, if it is shown that the employee was dismissed for any of the just causes mentioned in said Art. 282, then, in accordance with that article, he should not be reinstated. However, he must be paid backwages from the time his employment was terminated until it is determined that the termination of employment is for a just cause because the failure to hear him before he is dismissed renders the termination of his employment without legal effect.(Citations omitted)In fine, the lack of notice and hearing is considered as being a mere failure to observe a procedure for the termination of employment which makes the dismissal ineffectual but not necessarily illegal. The procedural infirmity is then remedied by ordering the payment to the employee his full backwages from the time of his dismissal until the court finally rules that the dismissal has been for a valid cause.Having established that respondent had just and valid cause to terminate petitioners employment but failed to hear him prior to his dismissal, respondent is obliged to pay petitioner his backwages computed from the time of his dismissal up to the time the decision in this case becomes final.2. Article III, Secs. 1, 4, 7, 8, 10, 16, 18 (2)Section 1.No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.Sameer Overseas v. Cabiles, G.R. No. 170139, August 5, 2014Petitioners allegation that respondentwas inefficient in her work and negligent in her dutiesmay, therefore, constitute a just cause for termination under Article 282(b), but only if petitioner was able to prove it.The burden of proving that there is just cause for termination is on the employer. "The employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause."Failure to show that there was valid or just cause for termination would necessarily mean that the dismissal was illegal. To show that dismissal resulting from inefficiency in work is valid, it must be shown that: 1) the employer has set standards of conduct and workmanship against which the employee will be judged; 2) the standards of conduct and workmanship must have been communicated to the employee; and 3) the communication was made at a reasonable time prior to the employees performance assessment.This is similar to the law and jurisprudence on probationary employees, which allow termination ofthe employee only when there is "just cause or when [the probationary employee] fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his [or her] engagement." However, we do not see why the application of that ruling should be limited to probationary employment. That rule is basic to the idea of security of tenure and due process, which are guaranteed to all employees, whether their employment is probationary or regular.In this case, petitioner merely alleged that respondent failed to comply with her foreign employers work requirements and was inefficient in her work.No evidence was shown to support such allegations. Petitioner did not even bother to specify what requirements were not met, what efficiency standards were violated, or what particular acts of respondent constituted inefficiency.

xxxPetitioner failed to comply withthe due process requirementsRespondents dismissal less than one year from hiring and her repatriation on the same day show not onlyfailure on the partof petitioner to comply with the requirement of the existence of just cause for termination. They patently show that the employersdid not comply with the due process requirement.A valid dismissal requires both a valid cause and adherence to the valid procedure of dismissal. The employer is required to give the charged employee at least two written notices before termination.One of the written notices must inform the employee of the particular acts that may cause his or her dismissal. The other notice must "[inform] the employee of the employers decision."Aside from the notice requirement, the employee must also be given "an opportunity to be heard." Petitioner failed to comply with the twin notices and hearing requirements. Respondent started working on June 26, 1997. She was told that she was terminated on July 14, 1997 effective on the same day and barely a month from her first workday. She was also repatriated on the same day that she was informed of her termination. The abruptness of the termination negated any finding that she was properly notified and given the opportunity to be heard. Her constitutional right to due process of law was violated.xxx

Republic Act No. 10022 was promulgated on March 8, 2010. This means that the reinstatement of the clause in Republic Act No. 8042 was not yet in effect at the time of respondents termination from work in 1997.Republic Act No. 8042 before it was amended byRepublic Act No. 10022 governs this case

xxxThus, when a law or a provision of law is null because it is inconsistent with the Constitution,the nullity cannot be cured by reincorporation or reenactment of the same or a similar law or provision. A law or provision of law that was already declared unconstitutional remains as such unless circumstances have sochanged as to warrant a reverse conclusion.We are not convinced by the pleadings submitted by the parties that the situation has so changed so as to cause us to reverse binding precedent.xxx

We observe that the reinstated clause, this time as provided in Republic Act. No. 10022, violates the constitutional rights to equal protection and due process.Petitioner as well as the Solicitor General have failed to show any compelling changein the circumstances that would warrant us to revisit the precedent.

We reiterate our finding in Serrano v. Gallant Maritime that limiting wages that should be recovered by an illegally dismissed overseas worker to three months is both a violation of due process and the equal protection clauses of the Constitution.

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Along the same line, we held that the reinstated clause violates due process rights. It is arbitrary as it deprives overseas workers of their monetary claims without any discernable valid purpose.

Tongko v. Manulife, G.R. No. 167622, November 7, 2008Based on the foregoing cases, if the specific rules and regulations that are enforced against insurance agents or managers are such that would directly affect the means and methods by which such agents or managers would achieve the objectives set by the insurance company, they are employees of the insurance company.In the instant case, Manulife had the power of control over Tongko that would make him its employee. Several factors contribute to this conclusion.In the Agreement dated July 1, 1977 executed between Tongko and Manulife, it is provided that:The Agent hereby agrees to comply with all regulations and requirements of the Company as herein provided as well as maintain a standard of knowledge and competency in the sale of the Company's products which satisfies those set by the Company and sufficiently meets the volume of new business required of Production Club membership.Under this provision, an agent of Manulife must comply with three (3) requirements: (1) compliance with the regulations and requirements of the company; (2) maintenance of a level of knowledge of the company's products that is satisfactory to the company; and (3) compliance with a quota of new businesses.Among the company regulations of Manulife are the different codes of conduct such as the Agent Code of Conduct, Manulife Financial Code of Conduct, and Manulife Financial Code of Conduct Agreement, which demonstrate the power of control exercised by the company over Tongko. The fact that Tongko was obliged to obey and comply with the codes of conduct was not disowned by respondents.Thus, with the company regulations and requirements alone, the fact that Tongko was an employee of Manulife may already be established. Certainly, these requirements controlled the means and methods by which Tongko was to achieve the company's goals.More importantly, Manulife's evidence establishes the fact that Tongko was tasked to perform administrative duties that establishes his employment with Manulife.xxxx

In its Petition for Certiorari dated January 7, 2005filed before the CA, Manulife argued that even if Tongko is considered as its employee, his employment was validly terminated on the ground of gross and habitual neglect of duties, inefficiency, as well as willful disobedience of the lawful orders of Manulife.

It is readily evident from the above-quoted portions of Manulife's petition that it failed to cite a single iota of evidence to support its claims. Manulife did not even point out which order or rule that Tongko disobeyed. More importantly, Manulife did not point out the specific acts that Tongko was guilty of that would constitute gross and habitual neglect of duty or disobedience. Manulife merely cited Tongko's alleged "laggard performance," without substantiating such claim, and equated the same to disobedience and neglect of duty.

We cannot, therefore, accept Manulife's position.InQuebec, Sr. v. National Labor Relations Commission, we ruled that:When there is no showing of a clear, valid and legal cause for the termination of employment, the law considers the matter a case of illegal dismissal and the burden is on the employer to prove that the termination was for a valid or authorized cause. This burden of proof appropriately lies on the shoulders of the employer and not on the employee because a worker's job has some of the characteristics of property rights and is therefore within the constitutional mantle of protection. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.xxxWe again ruled inTimes Transportation Co., Inc. v. National Labor Relations Commissionthat:The law mandates that the burden of proving the validity of the termination of employment rests with the employer. Failure to discharge this evidentiary burden would necessarily mean that the dismissal was not justified, and, therefore, illegal. Unsubstantiated suspicions, accusations and conclusions of employers do not provide for legal justification for dismissing employees. In case of doubt, such cases should be resolved in favor of labor, pursuant to the social justice policy of our labor laws and Constitution.This burden of proof was clarified inCommunity Rural Bank of San Isidro (N.E.), Inc. v. Paezto mean substantial evidence, to wit:The Labor Code provides that an employer may terminate the services of an employee for just cause and this must be supported by substantial evidence. The settled rule in administrative and quasi-judicial proceedings is that proof beyond reasonable doubt is not required in determining the legality of an employer's dismissal of an employee, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.Here, Manulife failed to overcome such burden of proof. It must be reiterated that Manulife even failed to identify the specific acts by which Tongko's employment was terminated much less support the same with substantial evidence. To repeat, mere conjectures cannot work to deprive employees of their means of livelihood. Thus, it must be concluded that Tongko was illegally dismissed.

Serrano v. NLRC, G.R. No. 117040, January 27, 2000Violation of Notice Requirement Not a Denial of Due ProcessThe cases cited by both Justices Puno and Panganiban refer, however, to the denial of due process by the State, which is not the case here. There are three reasonswhy, on the other hand, violation by the employer of the notice requirement cannot be considered a denial of due process resulting in the nullity of the employee's dismissal or layoff.The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply to the exercise of private power, such as the termination of employment under the Labor Code. This is plain from the text of Art. III, 1 of the Constitution,viz.: "No person shall be deprived of life, liberty, or property without due process of law. . . ." The reason is simple: Only the State has authority to take the life, liberty, or property of the individual. The purpose of the Due Process Clause is to ensure that the exercise of this power is consistent with what are considered civilized methods.The second reason is that notice and hearing are required under the Due Process Clause before the power of organized society are brought to bear upon the individual. This is obviously not the case of termination of employment under Art. 283. Here the employee is not faced with an aspect of the adversary system. The purpose for requiring a 30-day written notice before an employee is laid off is not to afford him an opportunity to be heard on any charge against him, for there is none. The purpose rather is to give him time to prepare for the eventual loss of his job and the DOLE an opportunity to determine whether economic causes do exist justifying the termination of his employment.Even in cases of dismissal under Art. 282, the purpose for the requirement of notice and hearing is not to comply with Due Process Clause of the Constitution. The time for notice and hearing is at the trial stage. Then that is the time we speak of notice and hearing as the essence of procedural due process. Thus, compliance by the employer with the notice requirement before he dismisses an employee does not foreclose the right of the latter to question the legality of his dismissal. As Art. 277(b) provides, "Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission."The third reason why the notice requirement under Art. 283 cannot be considered a requirement of the Due Process Clause is that the employer cannot really be expected to be entirely an impartial judge of his own cause. This is also the case in termination of employment for a just cause under Art. 282 (i.e., serious misconduct or willful disobedience by the employee of the lawful orders of the employer, gross and habitual neglect of duties, fraud or willful breach of trust of the employer, commission of crime against the employer or the latter's immediate family or duly authorized representatives, or other analogous cases).Lack of Notice Only Makes Termination IneffectualNot all notice requirements are requirements of due process. Some are simply part of a procedure to be followed before a right granted to a party can be exercised. Others are simply an application of the Justinian precept, embodied in the Civil Code,to act with justice, give everyone his due, and observe honesty and good faith toward one's fellowmen. Such is the notice requirement in Arts. 282-283. The consequence of the failure either of the employer or the employee to live up to this precept is to make him liable in damages, not to render his act (dismissal or resignation, as the case may be) void. The measure of damages is the amount of wages the employee should have received were it not for the termination of his employment without prior notice. If warranted, nominal and moral damages may also be awarded.xxxIndeed, under the Labor Code, only the absence of a just cause for the termination of employment can make the dismissal of an employee illegal. This is clear from Art. 279 which provides:Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for ajust causeor when authorized by this Title. An employee who isunjustly dismissedrom work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.Agabon v. NLRC, G.R. No. 158693, November 17, 2004Dismissals based on just causes contemplate acts or omissions attributable to the employee while dismissals based on authorized causes involve grounds under the Labor Code which allow the employer to terminate employees. A termination for an authorized cause requires payment of separation pay. When the termination of employment is declared illegal, reinstatement and full backwages are mandated under Article 279. If reinstatement is no longer possible where the dismissal was unjust, separation pay may be granted.Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment: a notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under Articles 283 and 284, the employer must give the employee and the Department of Labor and Employment written notices 30 days prior to the effectivity of his separation.From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause under Article 282 of the Labor Code, for an authorized cause under Article 283, or for health reasons under Article 284, and due process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) the dismissal is without just or authorized cause and there was no due process; and (4) the dismissal is for just or authorized cause but due process was not observed.In the first situation, the dismissal is undoubtedly valid and the employer will not suffer any liability.In the second and third situations where the dismissals are illegal, Article 279 mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement.In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be heldliable for non-compliance with the procedural requirements of due process.The present case squarely falls under the fourth situation. The dismissal should be upheld because it was established that the petitioners abandoned their jobs to work for another company. Private respondent, however, did not follow the notice requirements and instead argued that sending notices to the last known addresses would have been useless because they did not reside there anymore. Unfortunately for the private respondent, this is not a valid excuse because the law mandates the twin notice requirements to the employee's last known address.Thus, it should be heldliable for non-compliance with the procedural requirements of due process.A review and re-examination of the relevant legal principles is appropriate and timely to clarify the various rulings on employment termination in the light ofSerrano v. National Labor Relations Commission.

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The fact that theSerranoruling can cause unfairness and injustice which elicited strong dissent has prompted us to revisit the doctrine.To be sure, the Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history. Due process is that which comports with the deepest notions of what is fair and right and just.It is a constitutional restraint on the legislative as well as on the executive and judicial powers of the government provided by the Bill of Rights.Due process under the Labor Code, likeConstitutional due process, has two aspects: substantive,i.e., the valid and authorized causes of employment termination under the Labor Code; and procedural,i.e., the manner of dismissal.Procedural due process requirements for dismissal are found in the Implementing Rules of P.D. 442, as amended, otherwise known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9 and 10.Breaches of thesedue processrequirements violate the Labor Code. Thereforestatutory due processshould be differentiated from failure to comply withconstitutional due process.Constitutional due processprotects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; whilestatutory due processfound in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing.

After carefully analyzing the consequences of the divergent doctrines in the law on employment termination, we believe that in cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to followWenphilby holding that the dismissal was for just cause but imposing sanctions on the employer. Such sanctions, however, must be stiffer than that imposed inWenphil. By doing so, this Court would be able to achieve a fair result by dispensing justice not just to employees, but to employers as well.It must be stressed that in the present case, the petitioners committed a grave offense, i.e., abandonment, which, if the requirements of due process were complied with, would undoubtedly result in a valid dismissal.An employee who is clearly guilty of conduct violative of Article 282 should not be protected by the Social Justice Clause of the Constitution. Social justice, as the term suggests, should be used only to correct an injustice. As the eminent Justice Jose P. Laurel observed, social justice must be founded on the recognition of the necessity of interdependence among diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number."This is not to say that the Court was wrong when it ruled the way it did inWenphil,Serranoand related cases. Social justice is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.Justice Isagani Cruz strongly asserts the need to apply a balanced approach to labor-management relations and dispense justice with an even hand in every case:We have repeatedly stressed that social justice or any justice for that matter is for the deserving, whether he be a millionaire in his mansion or a pauper in his hovel. It is true that, in case of reasonable doubt, we are to tilt the balance in favor of the poor to whom the Constitution fittingly extends its sympathy and compassion. But never is it justified to give preference to the poor simply because they are poor, or reject the rich simply because they are rich, for justice must always be served for the poor and the rich alike, according to the mandate of the law.xxx

The violation of the petitioners' right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages.The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances.Considering the prevailing circumstances in the case at bar, we deem it proper to fix it at P30,000.00. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.De Jesus v. Hon. Aquino, G.R. No. 164662, February 18, 2013AlthoughAgabon,being promulgatedonly on November 17, 2004, ought to be prospective, not retroactive, in its operation because its language did not expressly state that it would also operate retroactively,the Court has already deemed it to be the wise judicial course to let its abandonment ofSerranobe retroactive as its means of giving effect to its recognition of the unfairness of declaring illegal or ineffectual dismissals for valid or authorized causes but not complying with statutory due process.UnderAgabon, the new doctrine is that the failure of the employer to observe the requirements of due process in favor of the dismissed employee (that is, the two-written notices rule) should not invalidate or render ineffectual the dismissal for just or authorized cause. TheAgabonCourt plainly saw the likelihood ofSerranoproducing unfair butfar-reaching consequences, such as, but not limited to, encouraging frivolous suits where even the most notorious violators of company policies would be rewarded by invoking due process; to having the constitutional policy of providing protection to labor be used as a sword to oppress the employers; and to compelling the employers to continue employing persons who were admittedly guilty of misfeasance or malfeasance and whose continued employment would be patently inimical to the interest of employers.Even so, theAgabonCourt still deplored the employer's violation of the employee's right to statutory due process by directing the payment of indemnity in the form of nominal damages, the amount of which would be addressed to the sound discretion of the labor tribunal upon taking into account the relevant circumstances. Thus, theAgabonCourt designed such form of damages as a deterrent to employers from committing in the future violations of the statutory due process rights of employees, and, at the same time, as at the very least a vindication or recognition of the fundamental right granted to the employees under theLabor Codeand its implementing rules.Accordingly, consistent with precedentthe amount ofP50,000.00 as nominal damages is hereby fixed for the purpose of indemnifying De Jesus for the violation of her right to due process.1wphi1Abbott v. Alcaraz, G.R. No. 192571, July 23, 2013

A probationary employee, like a regular employee, enjoys security of tenure. However, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under Article 295 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with the reasonable standards made known by the employer to the employee at the time of the engagement.Thus, the services of an employee who has been engaged on probationary basis may be terminated for any of the following: (a) a just or (b) an authorized cause; and (c) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.

In other words, the employer is made to comply with two (2) requirements when dealing with a probationary employee: first, the employer must communicate the regularization standards to the probationary employee; and second, the employer must make such communication at the time of the probationary employees engagement. If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee.

C. Probationary employment;termination procedure.A different procedure is applied when terminating a probationary employee; the usual two-notice rule does not govern.Section 2, Rule I, Book VI of the Implementing Rules of the Labor Code states that "if the termination is brought about by the x x x failure of an employee to meet the standards of the employer in case of probationary employment, it shall be sufficient that a written notice is served the employee, within a reasonable time from the effective date of termination."D. Employers violation ofcompany policy andprocedure.Nonetheless, despite the existence of a sufficient ground to terminate Alcarazs employment and Abbotts compliance with the Labor Code termination procedure, it is readily apparent that Abbott breached its contractual obligation to Alcaraz when it failed to abide by its own procedure in evaluating the performance of a probationary employee.Veritably, a company policy partakes of the nature of an implied contract between the employer and employee.

Records show that Abbotts PPSE procedure mandates, inter alia, that the job performance of a probationary employee should be formally reviewed and discussed with the employee at least twice: first on the third month and second on the fifth month from the date of employment. Abbott is also required to come up with a Performance Improvement Plan during the third month review to bridge the gap between the employees performance and the standards set, if any.In addition, a signed copy of the PPSE form should be submitted to Abbotts HRD as the same would serve as basis for recommending the confirmation or termination of the probationary employment.

In this case, it is apparent that Abbott failed to follow the above-stated procedure in evaluating Alcaraz. For one, there lies a hiatus of evidence that a signed copy of Alcarazs PPSE form was submitted to the HRD. It was not even shown that a PPSE form was completed to formally assess her performance. Neither was the performance evaluation discussed with her during the third and fifth months of her employment. Nor did Abbott come up with the necessary Performance Improvement Plan to properly gauge Alcarazs performance with the set company standards.

While it is Abbotts management prerogative to promulgate its own company rules and even subsequently amend them, this right equally demands that when it does create its own policies and thereafter notify its employee of the same, it accords upon itself the obligation to faithfully implement them. Indeed, a contrary interpretation would entail a disharmonious relationship in the work place for the laborer should never be mired by the uncertainty of flimsy rules in which the latters labor rights and duties would, to some extent, depend.

In this light, while there lies due cause to terminate Alcarazs probationary employment for her failure to meet the standards required for her regularization, and while it must be further pointed out that Abbott had satisfied its statutory duty to serve a written notice of termination, the fact that it violated its own company procedure renders the termination of Alcarazs employment procedurally infirm, warranting the payment of nominal damages.

Possible Bar Exam QuestionCase law has settled that an employer who terminates an employee for a valid cause but does so through invalid procedure is liable to pay the latter nominal damages.In Agabon v. NLRC (Agabon),the Court pronounced that where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights.Thus, in Agabon, the employer was ordered to pay the employee nominal damages in the amount ofP30,000.00. Proceeding from the same ratio, the Court modified Agabon in the case of Jaka Food Processing Corporation v. Pacot (Jaka)where it created a distinction between procedurally defective dismissals due to a just cause, on one hand, and those due to an authorized cause, on the other.It was explained that if the dismissal is based on a just cause under Article 282 of the Labor Code (now Article 296) but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee; if the dismissal is based on an authorized cause under Article 283 (now Article 297) but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employers exercise of his management prerogative.Hence, in Jaka, where the employee was dismissed for an authorized cause of retrenchment as contradistinguished from the employee in Agabon who was dismissed for a just cause of neglect of duty the Court ordered the employer to pay the employee nominal damages at the higher amount ofP50,000.00.Evidently, the sanctions imposed in both Agabon and Jaka proceed from the necessity to deter employers from future violations of the statutory due process rights of employees.In similar regard, the Court deems it proper to apply the same principle to the case at bar for the reason that an employers contractual breach of its own company procedure albeit not statutory in source has the parallel effect of violating the laborers rights. Suffice it to state, the contract is the law between the parties and thus, breaches of the same impel recompense to vindicate a right that has been violated. Consequently, while the Court is wont to uphold the dismissal of Alcaraz because a valid cause exists, the payment of nominal damages on account of Abbotts contractual breach is warranted in accordance with Article 2221 of the Civil Code. Anent the proper amount of damages to be awarded, the Court observes that Alcarazs dismissal proceeded from her failure to comply with the standards required for her regularization. As such, it is undeniable that the dismissal process was, in effect, initiated by an act imputable to the employee, akin to dismissals due to just causes under Article 296 of the Labor Code. Therefore, the Court deems it appropriate to fix the amount of nominal damages at the amount ofP30,000.00, consistent with its rulings in both Agabon and Jaka.Duncan v. Glaxo, G.R. No. 162994, September 17, 2004

Petitioners contend that Glaxos policy against employees marrying employees of competitor companies violates the equal protection clause of the Constitution because it creates invalid distinctions among employees on account only of marriage. They claim that the policy restricts the employees right to marry.

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No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxos policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management prerogative.Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive pharmaceutical industry.The prohibition against personal or marital relationships with employees of competitor companies upon Glaxos employees is reasonable under the circumstances because relationships of that nature might compromise the interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures.That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on investments and to expansion and growth.(Section 3, Article XIII of the Constitution provides:The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.) Indeed, while our laws endeavor to give life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers. The law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of fair play.xxx

The challenged company policy does not violate the equal protection clause of the Constitution as petitioners erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed only to the state or those acting under color of its authority.Corollarily, it has been held in a long array of U.S. Supreme Court decisions that the equal protection clause erects no shield against merely private conduct, however, discriminatory or wrongful.The only exception occurs when the statein any of its manifestations or actions has been found to have become entwined or involved in the wrongful private conduct.In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear that Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor companies. Its employees are free to cultivate relationships with and marry persons of their own choosing. What the company merely seeks to avoid is a conflict of interest between the employee and the company that may arise out of such relationships. As succinctly explained by the appellate court, thus:The policy being questioned is not a policy against marriage. An employee of the company remains free to marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that belongs only to the individual. However, an employees personal decision does not detract the employer from exercising management prerogatives to ensure maximum profit and business success. . .The Court of Appeals also correctly noted that the assailed company policy which forms part of respondents Employee Code of Conduct and of its contracts with its employees, such as that signed by Tescon, was made known to him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his employment contract and when he entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily entered into a contract of employment with Glaxo, the stipulations therein have the force of law between them and, thus, should be complied with in good faith."He is therefore estopped from questioning said policy.Yrasuegui v. PAL, G.R. No. 168081, October 17, 2008I. The obesity of petitioner is a ground for dismissal under Article 282(e)of the Labor Code.A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a continuing qualification of an employee in order to keep the job. Tersely put, an employee may be dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight standards. The dismissal of the employee would thus fall under Article 282(e) of the Labor Code. As explained by the CA:x x x [T]he standards violated in this case were not mere "orders" of the employer; they were the "prescribed weights" that a cabin crew mustmaintainin order to qualify for and keep his or her position in the company. In other words, they were standards that establishcontinuing qualificationsfor an employees position. In this sense, the failure to maintain these standards does not fall under Article 282(a) whose express terms require the element of willfulness in order to be a ground for dismissal. The failure to meet the employersqualifying standardsis in fact a ground that does not squarely fall under grounds (a) to (d) and is therefore one that falls under Article 282(e) the "other causes analogous to the foregoing."By its nature, these "qualifying standards" are norms that applyprior to and afteran employee is hired. They applyprior to employmentbecause these are the standards a job applicant must initially meet in order to be hired. They applyafter hiringbecause an employee must continue to meet these standards while on the job in order to keep his job. Under this perspective, a violation is not one of the faults for which an employee can be dismissed pursuant to pars. (a) to (d) of Article 282; the employee can be dismissed simply because he no longer "qualifies" for his job irrespective of whether or not the failure to qualify was willful or intentional. x x xxxxIn fine, We hold that the obesity of petitioner, when placed in the context of his work as flight attendant, becomes an analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the service. His obesity may not be unintended, but is nonetheless voluntary. As the CA correctly puts it, "[v]oluntariness basically means that the just cause is solely attributable to the employee without any external force influencing or controlling his actions. This element runs through all just causes under Article 282, whether they be in the nature of a wrongful action or omission. Gross and habitual neglect, a recognized just cause, is considered voluntary although it lacks the element of intent found in Article 282(a), (c), and (d)."II. The dismissal of petitioner can be predicated on the bona fide occupational qualification defense.Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide occupational qualification (BFOQ).In the United States, there are a few federal and many state job discrimination laws that contain an exception allowing an employer to engage in an otherwise unlawful form of prohibited discrimination when the action is based on a BFOQ necessary to the normal operation of a business or enterprise.Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute providing for it.Further, there is no existing BFOQ statute that could justify his dismissal.Both arguments must fail.First, the Constitution.(Constitution (1987), Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.)the Labor Codeand RA No. 7277or the Magna Carta for Disabled Personscontain provisions similar to BFOQ.Second, inBritish Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia Government and Service Employees Union (BCGSEU)the Supreme Court of Canada adopted the so-called "Meiorin Test" in determining whether an employment policy is justified. Under this test, (1) the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job;(2) the employer must establish that the standard is reasonably necessaryto the accomplishment of that work-related purpose; and (3) the employer must establish that the standard is reasonably necessary in order to accomplish the legitimate work-related purpose. Similarly, inStar Paper Corporation v. Simbol,this Court held that in order to justify a BFOQ, the employer must prove that (1) the employment qualification is reasonably related to the essential operation of the job involved; and (2) that there is factual basis for believing that all or substantially all persons meeting the qualification would be (un)able to properly perform the duties of the job.In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ.BFOQ is valid "provided it reflects an inherent quality reasonably necessary for satisfactory job performance.InDuncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc.the Court did not hesitate to pass upon the validity of a company policy which prohibits its employees from marrying employees of a rival company. It was held that the company policy is reasonable considering that its purpose is the protection of the interests of the company against possible competitor infiltration on its trade secrets and procedures.Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute.xxxxIn other words, the primary objective of PAL in the imposition of the weight standards for cabin crew isflight safety. It cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on their ability to care for the passengers when something goes wrong. It is not farfetched to say that airline companies, just like all common carriers, thrive due to public confidence on their safety records. People, especially the riding public, expect no less than that airline companies transport their passengers to their respective destinations safely and soundly. A lesser performance is unacceptable.xxxThe biggest problem with an overweight cabin attendant is the possibility of impeding passengers from evacuating the aircraft, should the occasion call for it. The job of a cabin attendant during emergencies is to speedily get the passengers out of the aircraft safely.Being overweight necessarily impedes mobility. Indeed,in an emergency situation, seconds are what cabin attendants are dealing with, not minutes. Three lost seconds can translate into three lost lives. Evacuation might slow down just because a wide-bodied cabin attendant is blocking the narrow aisles. These possibilities are not remote.xxxTo make his claim more believable, petitioner invokes the equal protection clause guarantyof the Constitution. However, in the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked.Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals.Indeed, the United States Supreme Court, in interpreting the Fourteenth Amendment,which is the source of our equal protection guarantee, is consistent in saying that the equal protection erects no shield against private conduct, however discriminatory or wrongful.Private actions, no matter how egregious, cannot violate the equal protection guarantee.

Opinaldo v. Ravina, G.R. No. 196573, October 16, 2013Jurisprudence is replete with cases recognizing the right of the employer to have free reign and enjoy sufficient discretion to regulate all aspects of employment, including the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees. This is a management prerogative where the free will of management to conduct its own affairs to achieve its purpose takes form. Even labor laws discourage interference with the exercise of such prerogative and the Court often declines to interfere in legitimate business decisions of employers.However, the exercise of management prerogative is not unlimited. Managerial prerogatives are subject to limitations provided by law, collective bargaining agreements, and general principles of fair play and justice.Hence, in the exercise of its management prerogative, an employer must ensure that the policies, rules and regulations on work-related activities of the employees must always be fair and reasonable and the corresponding penalties, when prescribed, commensurate to the offense involved and to the degree of the infraction.In the case at bar, we recognize, as did the appellate court, that respondents act of requiring petitioner to undergo a medical examination and submit a medical certificate is a valid exercise of management prerogative. This is further justified in view of the letter-complaint from one of respondents clients, PAIJR, opining that petitioner was "no longer physically fit to perform his duties and responsibilities as a company guard because of his health condition."To be sure, petitioners job as security guard naturally requires physical and mental fitness under Section 5 of Republic Act No. 5487,(AN ACT TO REGULATE THE ORGANIZATION AND OPERATION OF PRIVATE DETECTIVE, WATCHMEN OR SECURITY GUARDS AGENCIES, as amended by Presidential Decree No. 11, October 3, 1972.)as amended by Presidential Decree No. 100.

While the necessity to prove ones physical and mental fitness to be a security guard could not be more emphasized, the question to be settled is whether it is a valid exercise of respondents management prerogative to prevent petitioners continued employment with the Agency unless he presents the required medical certificate.

All said, what behooves the Court is the lack of evidence on record which establishes that respondent informed petitioner that his failure to submit the required medical certificate will result in his lack of work assignment.It is a basic principle of labor protection in this jurisdiction that a worker cannot be deprived of his job without satisfying the requirements of due process.Labor is property and the right to make it available is next in importance to the rights of life and liberty.As enshrined under the Bill of Rights, no person shall be deprived of life, liberty or property without due process of law.The due process requirement in the deprivation of ones employment is transcendental that it limits the exercise of the management prerogative of the employer to control and regulate the affairs of the business. In the case at bar, all that respondent employer needed to prove was that petitioner employee was notified that his failure to submit the required medical certificate will result in his lack of work assignment and eventually the termination of his employment as a security guard. There is no iota of evidence in the records, save for the bare allegations of respondent, that petitioner was notified of such consequence for non-submission. In truth, the facts of the case clearly show that respondent even reassigned petitioner to Gomez Construction from his PAIJR post despite the non-submission of a medical certificate. If it was indeed the policy of respondent not to give petitioner any work assignment without the medical certificate, why was petitioner reassigned despite his noncompliance?

We need not reiterate that respondent did not properly exercise her management prerogative when she withheld petitioners employment without due process. Respondent failed to prove that she has notified petitioner that her continuous refusal to provide him any work assignment was due to his non-submission of the medical certificate.Had respondent exercised the rules of fair play, petitioner would have had the option of complying or not complying with the medical certificate requirement having full knowledge of the consequences of his actions. Respondent failed to do so and she cannot now hide behind the defense that there was no illegal termination because petitioner cannot show proof that he had been illegally dismissed.

Bar Exam (06)

Q: What property right is conferred upon an employee once there is employer-employee relationship?A: Right of person to his employment is deemed to be a property within the meaning of constitutional guarantees.Section 4.No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.Section 7.The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.Section 8.The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.Phimco Industries v. PILA, G.R. No. 170830, August 11, 2010

A strike is the most powerful weapon of workers in their struggle with management in the course of setting their terms and conditions of employment. Because it is premised on the concept of economic war between labor and management, it is a weapon that can either breathe life to or destroy the union and its members, and one that must also necessarily affect management and its members.

In light of these effects, the decision to declare a strike must be exercised responsibly and must always rest on rational basis, free from emotionalism, and unswayed by the tempers and tantrums of hot heads; it must focus on legitimate union interests. To be legitimate, a strike should not be antithetical to public welfare, and must be pursued within legal bounds. The right to strike as a means of attaining social justice is never meant to oppress or destroy anyone, least of all, the employer.

Since strikes affect not only the relationship between labor and management but also the general peace and progress of the community, the law has provided limitations on the right to strike. Procedurally, for a strike to be valid, it must comply with Article 263of the Labor Code, which requires that: (a) a notice of strike be filed with the Department of Labor and Employment (DOLE) 30 days before the intended date thereof, or 15 days in case of unfair labor practice; (b) a strike vote be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and (c) a notice be given to the DOLE of the results of the voting at least seven days before the intended strike.

These requirements are mandatory, and the unions failure to comply renders the strike illegal.The 15 to 30-day cooling-off period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB conciliator/mediator, while the seven-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members.

In the present case, the respondents fully satisfied the legal procedural requirements; a strike notice was filed on March 9, 1995; a strike vote was reached on March 16, 1995; notification of the strike vote was filed with the DOLE on March 17, 1995; and the actual strike was launched only on April 25, 1995.Strike may be illegal for commission of prohibited actsDespite the validity of the purpose of a strike and compliance with the procedural requirements, a strike may still be held illegal where themeans employedare illegal.The means become illegal when they come within the prohibitions under Article 264(e) of the Labor Code which provides:No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer's premises for lawful purposes, or obstruct public thoroughfares.Based on our examination of the evidence which the LA viewed differently from the NLRC and the CA, we find the PILA strike illegal.We intervene and rule even on the evidentiary and factual issues of this case as both the NLRC and the CA grossly misread the evidence, leading them to inordinately incorrect conclusions, both factual and legal. While the strike undisputably had not been marred by actual violence and patent intimidation, the picketing that respondent PILA officers and members undertook as part of their strike activities effectively blocked the free ingress to and egress from PHIMCOs premises, thus preventing non-striking employees and company vehicles from entering the PHIMCO compound. In this manner, the picketers violated Article 264(e) of the Labor Code.

xxxTo strike is to withhold or to stop work by the concerted action of employees as a result of an industrial or labor dispute.The work stoppage may be accompanied by picketing by the striking employees outside of the company compound. While a strike focuses on stoppage of work, picketing focuses on publicizing the labor dispute and its incidents to inform the public of what is happening in the company struck against.A picket simply means to march to and from the employers premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute.It is a strike activity separate and different from the actual stoppage of work.grievances,these rights are by no means absolute. Protected picketing does not extend to blocking ingress to and egress from the company premises.That the picket was moving, was peaceful and was not attended by actual violence may not free it from taints of illegality if the picket effectively blocked entry to and exit from the company premises.xxxProtected picketing does not extend to blocking ingress to and egress from the company premises.That the picket was moving, was peaceful and was not attended by actual violence may not free it from taints of illegality if the picket effectively blocked entry to and exit from the company premises.

xxx

As we have stated, while the picket was moving, the movement was in circles, very close to the gates, with the strikers in a hand-to-shoulder formation without a break in their ranks, thus preventing non-striking workers and vehicles from coming in and getting out. Supported by actual blocking benches and obstructions, what the union demonstrated was a very persuasive and quietly intimidating strategy whose chief aim was to paralyze the operations of the company, not solely by the work stoppage of the participating workers, but by excluding the company officials and non-striking employees from access to and exit from the company premises. No doubt, the strike caused the company operations considerable damage, as the NLRC itself recognized when it ruled out the reinstatement of the dismissed strikers.

Liabilities of union officers and membersIn the determination of the liabilities of the individual respondents, the applicable provision is Article 264(a) of the Labor Code:Art. 264.Prohibited activities. (a) x x xx x x xAny union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.We explained inSamahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines, Inc.that the effects of illegal strikes, outlined in Article 264 of the Labor Code, make a distinction between participating workers and union officers. The services of an ordinary striking worker cannot be terminated for mere participation in an illegal strike; proof must be adduced showing that he or she committed illegal acts during the strike. The services of a participating union officer, on the other hand, may be terminated, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike.In all cases, the striker must be identified. But proof beyond reasonable doubt is not required; substantial evidence, available under the attendant circumstances, suffices to justify the imposition of t