B2.3 Infraestructura intermodal – Puerto ampliado de Nápoles

1. Does the penal provisions of RA 8042 violate the equal protection clause of the Constitution? The equal protection clause is directed principally against undue favor and individual or class privilege. It is not to prohibit legislation which is limited to the object to which it is directed and by the territory in which it is to operate. It does not require absolute equality, but merely all persons be treated under like conditions both as to privileges conferred and liabilities imposed. (EXEC. SECRETARY VS. CA, May 25, 2004)

2. Is every controversy or money claim by an employee against the employer or vice versa

within the exclusive jurisdiction of the labor arbiter?

No. Not every controversy or money claim by an employee against the meployer or vice versa is within the exclusive jurisdiction of the labor arbiter. A money claim by a worker against the employer or vice versa is within the exclusive jurisdiction of the labor arbiter only if there is a reasonable causal connection between the claim asserted and the employer-employee relation.

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Absent such link, the complaint will be cognizable by the regular courts of justice. (EVIOTA VS. CA, July 29, 2003)

3. Natividad works with TCM College as a liaison officer with a rank of “Assistant Registrar.” He

was arrested by police authorities for violation of he Dangerous Drugs Act without warrant, and a criminal complaint was filed against him. TCM College sent a Memorandum to Natividad informing him that his employment is already terminated. The criminal case was dismissed for lack of merit. Natividad did not, however, file any complaint to the NLRC against the college on account of his dismissal.

Natividad was arrested anew for violation of the same Act. This time, he filed with the NLRC a complaint for illegal dismissal. The Labor Arbiter and the NLRC denied Natividad but on certiorari, the CA affirmed, with modification, holding that although there was a valid cause for private respondent’s dismissal, the petitioner did not follow the procedure for the termination of his employment. Was Natividad illegally dismissed so as to entitle him to backwages?

The normal consequences of finding that an employee is illegally dismissed are, firstly, the employee becomes entitled to reinstatement without loss of seniority rights and second, payment of backwages to the period from his illegal dismissal up to actual reinstatement. The award of backwages is not conditioned on the employer’s ability or inability to pay. While it may be true that Natividad was detained, he was not convicted by final judgement in the Criminal Case. Indeed, he is presumed innocent until his guilt is proved beyond reasonable doubt. (TOMAS CLAUDIO MEMORIAL COLLEGE, INC. VS. CA, February 16, 2004)

4. Is an order of execution of a final and executory judgement in a labor case still appealable? No. Settled is the rule that after a judgemnt has become final, no additions can be made thereto, and nothing can be done therewith except execution; otherwise, there would be no end to litigations, thus settling at naught the main role of courts of justice, which is to assist in the enforcement of the rule of law and the maintenance of peace and order, by setting justiceable controversies with finality. (KING INTEGRATED SECURITY SERVICES, INC. VS. GALO S. GATAN, July 7, 2003)

5. What evidence is needed to show that employer committed ULP under the Labor Code? Substantial evidence is required to support the claim. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In the case at bar, the complaint was made only after a deadlock was declared by the Union. It is clear that such ULP charge was merely an afterthought. (STANDARD CHARTERD BANK EMPLOYEES UNION VS. CONFESOR, June 16, 2004)

6. What is surface bargaining?

It is defined as “going through the motions of negotiating” without any legal intent to reach an agreement. (STANDARD CHARTERD BANK EMPLOYEES UNION VS. CONFESOR, June 16, 2004) 7

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Petitioner and respondent union entered into and signed a CBA covering the period of July 10, 1988 to July 9, 1991. On September 27, 1990, the respondent union filed a notice of strike based on violation of CBA, among others. On October 16, 1990, the petitioner's general manager, wrote the Acting Secretary of Labor and Employment (SOLE for brevity) informing him of the petitioner's decision to retrench 171 employees on a staggered basis, spread over a period of 60 days, to lessen the daily financial losses being incurred by the petitioner. The next day, the respondent union informed the DOLE-NCR that the union will conduct a strike vote referendum. The members of the respondent union voted to stage a strike. DOLE-NCR was thereafter informed of the results of the strike vote referendum. On October 31, 1990, the SOLE issued a status quo ante bellum order certifying the case to the NLRC for compulsory arbitration and enjoining the parties from engaging in any strike or lockout.

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The petitioner wrote the SOLE of its decision to implement its retrenchment program to stem its huge losses. Subsequently, the petitioner terminated the employment of 148 employees. The remaining employees were also informed that it will close in six months. The respondent union protested the actions of the petitioner invoking Section 15, Article VI of the CBA. By way of riposte, the respondent union filed on November 16, 1990 another notice of strike because of what it perceived as the petitioner's continuing unfair labor practices (ULP). On the same day, the officers of the respondent union and some members staged a picket in the premises of the hotel, obstructing the free ingress and egress thereto. The following day, petitioner terminated the employment of the officers and members of the respondent union. On November 28, 1990, the SOLE issued an order certifying the labor dispute to the NLRC. The SOLE issued a return-to-work order, which the respondent officers and members complied.

Petitioner however filed a complaint with the Regional Arbitration Office of the NLRC for illegal strike against the respondents on the ground that the latter failed to comply with the requirements provided under Arts. 263 and 264 of the Labor Code. In their answer, the respondents alleged that the petitioner committed ULP prior to the filing of the November 16, 1990 notice of strike. Hence, there was no need for the respondent union to comply with Arts. 263 and 264 of the Labor Code, as the notice filed by the union on September 27, 1990 was sufficient compliance with the law. Is the strike staged by the respondent union on November 16 legal?

NO. The requisites for a valid strike are as follows: (a) a notice of strike filed with the DOLE thirty days before the intended date thereof or fifteen days in case of ULP; (b) strike vote 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) notice given to the DOLE of the results of the voting at least seven days before the intended strike. The requisite seven-day period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the approval of the majority of the union members. The notice of strike and the cooling-off period were intended to provide an opportunity for mediation and conciliation. The requirements are mandatory and failure of a union to comply therewith renders the strike illegal. A strike simultaneously with or immediately after a notice of strike will render the requisite periods nugatory. Moreover, a strike that is undertaken, despite the issuance by the SOLE of an assumption or certification order, becomes a prohibited activity and, thus, illegal pursuant to Art. 264 of the Labor Code, as amended. Consequently, the union officers and members are deemed to have lost their employment status for having knowingly participated in an illegal act.

In this case, the respondent union filed its notice of strike with the DOLE on November 16, 1990 and on the same day, staged a picket on the premises of the hotel, in violation of the law. The respondents cannot argue that since the notice of strike on November 16, 1990 were for the same grounds as those contained in their notice of strike on September 27, 1990 which complied with the requirements of the law on the cooling-off period, strike ban, strike vote and strike vote report, the strike staged by them on November 16, 1990 was lawful. The matters contained in the notice of strike of September 27, 1990 had already been taken cognizance of by the SOLE when he issued on October 31, 1990 a status quo ante bellum order enjoining the respondent union from intending or staging a strike. Despite the SOLE order, the respondent union nevertheless staged a strike on November 16, 1990 simultaneously with its notice of strike, thus violating Art. 264(a) of the Labor Code, as amended, which provides that “ x x x No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.” (GRAND BOULEVARD HOTEL VS. GENUINE LABOR ORGANIZATION OF WORKERS IN HOTEL, RESTAURANT AND ALLIED INDUSTRIES, July 8, 2003) 8. Respondents applied for employment in Taiwan with petitioner, Phil. Employ Services and

Resources, Inc. (PSRI for brevity). The respondents were deployed in Taiwan. When they encountered problems, they brought their attention to the manager who told them to forget about it and refrain to air their complaints.

Respondent Navarra and another employee, Pio Gabito, were summoned by the management and told that they were to be repatriated, without specifying the ground or cause therefor. They pleaded that they be informed of the cause or causes for their repatriation, but

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their requests were rejected. The manager of their employer summoned the police, who arrived and escorted them to the airport. Upon respondent Navarra's arrival in Manila, the petitioner sought to settle his complaints. After the negotiations, the petitioner agreed to pay P49,000 to the said respondent but, in consideration thereof, the latter executed a quitclaim releasing the petitioner from any or all liabilities for his repatriation. Were petitioners illegally dismissed when they repatriated by their Taiwan employers? Was Navarra’s execution of quitclaim and receipt of P 49, 000 sufficient to conclude his waiver of right against illegal dismissal?

Yes. Respondents’ dismissal was not based on just, valid and legal grounds. As such, the rule lex loci contractus (the law of the place where the contract is made) governs. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor, apply in this case. In order to effect a valid dismissal of an employee, the law requires that there be just and valid cause as provided in Article 282 and that the employee was afforded an opportunity to be heard and to defend himself. Dismissal may also be based on any of the authorized causes provided for in Articles 283 and 284 of the Labor Code.

The petitioner failed to substantiate its claim that respondent Navarra's repatriation was based on a valid, legal and just cause. We thus rule that the respondents were constructively dismissed from their employment. There is constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him except to forego his continued employment. It exists where there is cessation of work because "continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay."

We rule that the deed of release executed by respondent Navarra did not completely release the petitioner from its liability on the latter's claim. As a rule, quitclaims, waivers or releases are looked upon with disfavor and are commonly frowned upon as contrary to public policy and ineffective to bar claims for the measure of a worker's legal rights. If (a) there is clear proof that the waiver was wangled from an unsuspecting or gullible person; or (b) the terms of the settlement are unconscionable, and on their face invalid, such quitclaims must be struck down as invalid or illegal. (PHIL EMPLOY SERVICES VS. PARAMIO, ET AL, April 15, 2004)

9. The petitioner is a domestic corporation engaged in the business of providing telegraph and

communication services thru its branches all over the country. It employed various employees, among whom were private respondents. The petitioner came up with a Relocation and Restructuring Program. Private respondents received separate letters from the petitioner, giving them the option to choose the branch to which they could be transferred. Thereafter, the private respondents and other petitioner's employees were directed to "relocate" to their new PT&T Branches.

The petitioner offered benefits/allowances to those employees who would agree to be transferred under its new program. Moreover, the employees who would agree to the transfers would be considered promoted. The private respondents rejected the petitioner's offer. Hence, the petitioner sent letters to the private respondents requiring them to explain in writing why no disciplinary action should be taken against them for their refusal to be transferred/relocated. In their respective replies to the petitioner's letters, the private respondents explained that the transfers imposed by the management would cause enormous difficulties on the individual complainants. Dissatisfied with this explanation, the petitioner considered the private respondents' refusal as insubordination and willful disobedience to a lawful order; hence, the private respondents were dismissed from work. Subsequently, the private respondents' bargaining agent, PT&T Workers Union-NAFLU-KMU, filed a complaint against the petitioner for illegal dismissal and unfair labor practice for and in behalf of the private respondents. Are the respective transfers of the private respondents considered promotions? If so, is the denial of a promotion a just and authorized cause for dismissal?

Yes. With or without a corresponding increase in salary, the respective transfers of the private respondents were in fact promotions, following the ruling enunciated in Homeowners Savings and Loan Association, Inc. v. NLRC: “Promotion, as we defined in Millares v. Subido, is ‘the advancement from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary.’ Apparently, the

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indispensable element for there to be a promotion is that there must be an ‘advancement from one position to another’ or an upward vertical movement of the employee's rank or position. Any increase in salary should only be considered incidental but never determinative of whether or not a promotion is bestowed upon an employee.

However, An employee cannot be promoted, even if merely as a result of a transfer, without his consent. A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to 'lure the employee away from his permanent position cannot be done without the employees' consent. There is no law that compels an employee to accept a promotion for the reason that a promotion is in the nature of a gift or reward, which a person has a right to refuse. Hence, the exercise by the private respondents of their right cannot be considered in law as insubordination, or willful disobedience of a lawful order of the employer. As such, there was no valid cause for the private respondents' dismissal. (PT&T VS. CA, September 29, 2003)

10. The petitioner is a domestic corporation engaged in garments manufacturing using the

brand name “KAMISETA.” The petitioner employed private respondent Torno as trimmer. The private respondent and a co-employee, Maricar Buan, were tasked to handle the inventory of finished products. Sometime thereafter, the petitioner started to receive information from the head of its production department that, according to other employees, Buan and the private respondent had been stealing “KAMISETA” items from the factory. On the basis of a report, the petitioner issued a disciplinary action form suspending the private respondent indefinitely without pay. A notice of dismissal was addressed to the private respondent specifying the charge against her, the factual basis thereof and the imposable penalties for the said charge if proven.

The private respondent failed to appear during the scheduled hearing. Consequently, the petitioner decided to dismiss the private respondent from her employment. When notified of the petitioner’s decision, the private respondent filed a complaint for illegal dismissal with prayer for reinstatement and payment of backwages, non-payment of service incentive leave pay and 13th-month pay against the petitioner before the National Capital Regional Arbitration Branch. LA rendered a decision holding that the respondent was illegally dismissed and directed the petitioner to pay backwages and separation pay to the private respondent. However, according to the labor arbiter, reinstatement could no longer be effected, as the relationship between the private respondent and the petitioner had been strained and ruptured. Aggrieved, the petitioner appealed the decision to the NLRC, alleging that it was deprived of its right to a formal hearing before the labor arbiter rendered her decision. LA’s failure to conduct a hearing deprived the petitioner of its vested right; consequently, her decision was null and void. Does the absence of a formal hearing amount to denial of petitioner’s right to due process? Is termination of the private respondent’s employment based on a just and valid cause?

We agree with the CA that the petitioner did not have a vested right to a formal hearing simply and merely because LA Tumanong granted its motion and set the case for hearing. Pursuant to Section 5, Rule V of the New Rules of Procedure of the NLRC, the labor arbiter has the authority to determine whether or not there is a necessity to conduct formal hearings in cases brought before him for adjudication. The holding of a formal hearing or trial is discretionary with the labor arbiter and is something that the parties cannot demand as a matter of right. It is entirely within his authority to decide a labor case before him, based on the position papers and supporting documents of the parties, without a trial or formal hearing. The requirements of due process are satisfied when the parties are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in case it be decided that no hearing should be conducted or was necessary.

The private respondent was illegally dismissed. In order to effect a valid dismissal, the law requires that (a) there be just and valid cause as provided under Article 282 of the Labor Code; and (b) the employee be afforded an opportunity to be heard and to defend himself. As stated by the CA, the petitioner had failed to show that it had complied with the two-notice requirement: (a) a written notice containing a statement of the cause for the termination to afford the employee ample opportunity to be heard and defend himself with the assistance of his representative, if he

In document Capítulo 4. Infraestructura de transporte (página 117-120)