LABOR CODE: ATTY DUKA (P1)

R.A. 11058 - Occupational Health and Safety Standard

It is the right of every worker to refuse working without threat or appraisal from the employer if, as determined by the DOLE, an imminent danger situation exists in the workplace that may result, in illness, injury or death, and corrective actions to eliminate the danger have not been undertaken by the employer

• The state shall afford fill protection to labor, local and overseas, organizaed and unorganized

• promote full employment and equality of employment opportunities for all

• guarantee the rights of all workers to self-organizations, and peaceful concerted activities, including the right to strike.

What does Article 13, Section 3 state?

Police Power

Even if the employer and employee agree on something in a contract, the government can still change, regulate, or stop it if it is unfair, unsafe, or harmful to workers or the public.

- Ex: wages, working conditions, hours of labor, and similar subjects.

1. Secretary of Labor and Employment

2. authorized representatives

3. labor regulation officers

• these are the people who have e access to employer’s records and premises at any time of the day or night whenever work is being performed.

• have the right to copy thereform, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations

Social Justice

• humanization of laws and the equalization of social and economic force by the State.

• not intended to countenance wrongdoing simply because it is committed by the underprivileged.

labor

all doubts in the Code shall be resolved in favor of ____.

• do not resolve in anyone’s favor

• while the Labor Code is intended to protect workers, they are not intended to destory or oppress the Capital

• apply pure and simple meaning of the law

if there’s no doubt in labor code, what will happen?

Regular employee

• these are the employees who have been engaged to perform activites which are necessary or desirable in the usual business or trade of the employer

TRUE

• because there is a probationary period

TRUE OR FALSE:

regular does not mean permanent

Project and Seasonal

employees who perform activities only for a specific duration or time

Casual

employee who perform work which are usually not necessary or desirable for the employer’s business.

industry

what is necessary or desirable in business/company depends on the ______.

TRUE

• because there’s a reasonable connection between the work performed by the employee and the usual trade or business of the employer.

TRUE OR FALSE:

Delivery riders are necessary for Lazada because the industry is online selling. The transactions cannot be complete without the orders being delivered. Therefore, lazada riders are regular employee.

Security of Tenure (Art. 294, Labor Code)

• right of every employee not to be dismissed without just or authorized cause and in the absence of due process

employer

According yo Article 292, in illegal dismissal cases (dismissals that violate the right to security of tenure), the of proof is on the _____.

complainant

the fact of dismissal, if disputed, must be duly proven by the _____.

Four-fold Test (Employee-Employer Relationship

Determines if the existence of an employer-employee relationship was duly satisfied

• selection and engagement of the employee

• payment of wages

• power of dismissal

• employer’s power to control the employee on the means and methods by which the work is accomplished

When can we say that the parties have (Employee-Employer Relationship) Four-fold Test?

employer’s power to control the employee on the means and methods by which the work is accomplished

In Employee-Employer Relationship, what is the most important?

Control Test

the power of the employer to determine the means by which an employee would perform the task

Award of Reinstatement and Backwages

this is given to employees who have been illegally dismisse

FALSE:

it must be reinstatement to the former position, without loss of seniority

TRUE OR FALSE:

an employee may reinstated to another position different from the position he/she held before being dismissed

employer

reinstatement is upon the discretion of the ____.

• physical reinstatement - back to former position

• reinstatement by payroll - employee does no work but is being paid

2 types of reinstatement

inclusive of allowances and other benefits or their monetary equivalent

What are included in backwages?

from the time the employee was not allowed to work up to the time of reinstatement

How backwages being compute?

FALSE:

it can be

TRUE OR FALSE:

Separation pay cannot be paid in lieu of reinstatement

Separation pay

one man’s salary for every year of service

• if reinstatement is no longer desirable or viable

• strained relations frees the employee from a potentially highly oppressive work environment.

• it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker who they cannot trust.

What are the grounds wherein separation pay can be paid instead of reinstatement?

three (3) consecutive school years a

According to Manual of Regulations for Private Schools, how many school years before the private teachers become permanent?

• the teacher must be full-time

• must have rendered 3 consecutive years

• service must be satisfactory

According to Manual of Regulations for Private Schools, what are the requirements for private teachers to be permanent?

• working day (8 hours per day, 6 days a week) is devoted to the school.

• has no other regular remunerative employment.

• paid on a regulat monthly basis regardless of the number of teaching hours.

According to Manual of Regulations for Private Schools, full-time teacher must be:

18 hours a week (or equal to 18 units)

In college, the load of a full-time instructor is _________________________

Just Cause for Legal Dismissal

a legally valid and acceptable reason for firing an employee, based on serious misconduct or wrongdoing committed by the employee himself/herself.

misconduct

defined as improper or wrong conduct

CHRUE

TRUE OR FALSE:

cursing students considered a serious misconduct.

connected with the work of the employee (no matter how serious)

In able to say that the action is misconduct, it must be __________________

abandonment

• deliberate or unjustified refusal

• just cause for separation from service

• analogous neglect of duty

• failure of employee to report to work without just or valid reason

• existence of overt acts which show that the employee has no intention to return to work

• two aforementioned elements must be abandonment present to justify termination based on abandonment.

Elements of abandonment:

clear evidence of deliberate, unjustified refusal is done by the employee through overt acts

Abandonment of employee must be proven by the employer with:

employer must give two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment.

Procedure for Dismissal Due to Just Cases:

employer must give ___________ and a ___________ or opportunity to be heard if requested by the employee before terminating the employment.

• 1st written notice must specify the grounds for dismissal

• 2nd notice contains the notice of termination

2 written notices in the procedure for dismissal due to just cases:

After the hearing or investigation, once the employer has evaluated the evidence and decided to dismiss the employee, the 2nd notice (Notice of Termination) is issued.

When will the 2nd notice for dismissal due to just cause be issued?

5 calendar days from receipt of the NTE.

What is the reasonable time given to an employee to explain after receiving the first notice (NTE)?

They may study the accusations, consult a union official or lawyer, gather evidence, and prepare their defense.

What can an employee do during the reasonable period given after receiving the Notice to Explain (NTE)?

illegal

If the employer does not give the required two notices and the chance to be heard, the dismissal may be considered ______.

It means giving the employee a chance to present evidence and explain their side before a decision is made.

What does "hearing" mean in employee dismissal cases?

No. A formal trial-type hearing is not needed as long as the employee is given the opportunity to explain (in writing or verbally).

Is a trial-type hearing required for legal dismissal?

No. Hearing is not equal to verbal argumentation alone—written explanation is also valid.

Does hearing only mean verbal argumentation?

The employer has the burden of proof and must prove the allegation with substantial evidence.

Who has the burden of proof in dismissal cases?

Yes. It is within their right to free expression and does not automatically constitute a violation.

Can employees air grievances in a public forum?

If the accusation is false or defamatory, it may become libelous.

When can public accusations by employees become problematic?

Authorized causes happen even when the employee is not at fault.

What makes a dismissal under authorized causes different from just causes?

employer, so the employee is entitled to separation pay.

Who gives the grounds for dismissal in authorized causes?

• installation of labor-saving devices

• redundancy

• retrenchment to prevent losses

• closing or cessation of operation

4 Authorized Causes of Dismissal

Installation of labor-saving devices, such as automation.

authorized cause involving the adoption of new technology

When the services of an employee are in excess of what the business actually needs.

When does redundancy occur?

Management must declare redundancy with sufficient basis and follow legal requirements.

What must management do before declaring redundancy?

• Written notice to employee and DOLE at least 1 month before termination.

• Separation pay: equivalent to 1 month pay, OR 1 month pay per year of service, whichever is higher.

• Good faith in abolishing redundant positions.

• Fair and reasonable criteria in choosing which positions are redundant.

What are the redundancy requirements?

retrenchment

A reduction of employees to prevent losses.

No — even projected losses, if substantial, may justify retrenchment.

Is actual financial loss required for retrenchment?

• At least one (1) month pay OR,

9 months service - one month salary

• one month (1) pay per year of service, whichever is higher.

4 years service - 4 months salary

Basic rule of separation pay for labor-saving devices or redundancy

• One month pay

9 months service - one month salary

• ½ months pay for every year of service, whichever is higher

4 years service - 2 months salary

Basic rule of separation pay for retrechment and closures or cessation of operations

To provide the employee “wherewithal” (panggastos) while looking for other employment.

Purpose of separation pay

Based on monthly salary and years of service.

Basis of computing separation pay.

If closure is due to serious business losses or financial reverses.

When is no separation pay given?

employer

Who has the burden of proof to show serious business losse

Financial statements covering a sufficient number of years showing actual losses.

What proof must the employer present to show serious business losses?

Ineffectual Dismissal

occurs when an employee is dismissed for a valid just or authorized cause, but the employer fails to follow due process or violates the employee’s right to due process.

employee is not entitled to reinstatement, backwages, or separation pay, because the cause for dismissal is valid.

employee’s remedies in an Ineffectual Dismissal

employer must pay nominal damages for violating due process.

What must the employer pay in cases of Ineffectual Dismissal?

Court determines the amount of nominal damages to be awarded.

who determines the amount of nominal damages in an Ineffectual Dismissal?

Constructive Dismissal

continued employment becomes impossible, unreasonable, or unlikely, such as when the employee is offered a demotion or reduction in pay/benefits.

dismissal in disguise

Constructive dismissal is also known as ___________ caused by the employer’s bad behavior.

when the employee stops reporting for work, but when the employer commits unwarranted acts that make continued employment intolerable.

When does constructive dismissal occur?

constructive dismissal involving harassment.

When an employee is sexually harassed by a supervisor and the employer fails to act promptly and sensitively on the complaint.

If an employer uses strong or degrading words without just reason, creating a hostile work environment, it can result in constructive dismissal.

How can insulting language lead to constructive dismissal?

Article 299: Disease as a Ground for Termination

It allows dismissal of an employee who is suffering from a disease that meets legal conditions.

Only if the disease cannot be cured within 6 months and continued employment is prohibited by law or harmful to the employee or co-workers.

When can a sick employee be legally dismissed under Art. 299?

A certification from a competent public health authority stating the illness is incurable within 6 months or poses danger.

What document is required before terminating an employee due to disease?

Yes. Separation pay similar to retrenchment/closure.

Is the employee entitled to separation pay when dismissed due to disease?

Whichever is higher:

• 1 month salary, or

• 1/2 month salary per year of service

How much is the separation pay for termination due to disease?

Because allowing the employee to continue working may endanger their health or the health of others, or violate safety laws.

Why is disease a valid ground for termination?

should not exceed six months

Maximum period of putting an employee on a floating status

D.O. 215

allows the extension of floating status for another six months

Floating status beyond 6 months is tantamount to constructive dismissal.

Supreme Court ruling on extended floating status:

Resignation (Art. 300)

An employee may terminate without just cause the employee-employer relationship by serving a written notices on the employer

The employee may be held liable for damages.

What happens if an employee resigns without the required 30-day notice?

• When there is inhuman and unbearable treatment by the employer or representative.

• When the employer or representative commits a crime or offense against the employee or their immediate family.

• Other causes analogous to serious insult, inhuman treatment, or commission of a crime.

When can an employee resign without serving the 30-day notice?

TRUE

TRUE OR FALSE:

Voluntary resignation does not deserve payment of any separation pay

• if there is an employment contract stipulating separation pay upon resignation

• Collective Bargaining Agreement (CBA) policy

• if it is company practice

Excemptions of separation pay when an employee resign voluntarily:

The employer. They must prove that the employee’s resignation was voluntary and free from any compulsion

Who has the burden of proof in illegal dismissal cases involving resignation?

That there was no force, threat, intimidation, or undue pressure on the employee.

What must the employer prove regarding an employee’s resignation?

employee is retained in the job

What happens if the employer accepts the withdrawal of resignation?

the employee cannot claim illegal dismissal because resignation was already accepted.

What if the employer does not accept the withdrawal of resignation?

Because resignation is considered voluntary, and once accepted, it becomes the employer’s right to decide whether to retain or not.

Why can’t an employee who resigned claim illegal dismissal?

At 60 to 65 years old, provided they have rendered at least 5 years of service in the establishment.

At what age may an employee optionally retire under Art. 302?

65 years old

What is the compulsory retirement age?

At least ½ month salary for every year of service.

What is the minimum retirement pay under Art. 302?

• 15 days salary

• + 2.5 days (from 13th month pay)

• + cash equivalent of up to 5 days of service incentive leave (if no retirement plan)

What are the salaries that include under retirement pay computation?