DEAN POQUIZ NOTES

A. TERMINATION OF EMPLOYMENT
1. Security of Tenure – is the right of a worker to continue in employment until the
same is terminated for a valid cause (just or authorized).
2. Doctrine of Perpetual Employment – Security of tenure is a constitutionally
guaranteed right of an employee. However, it does not mean perpetual
employment for the employee ( Phil. Village Hotel vs. NLRC, G.R. No. 115033, 28
Feb 1994)
3. Reliefs / Normal Consequences of Illegal Dismissal –
a) Reinstatement – restoration of the dismissed employee to his former
position without loss of seniority rights and other privileges.
b) Full back wages – restoration of the lost income of an employee due to
illegal dismissal. Full backwages are awarded because income earned by
the employee from other sources shall not be deducted from back wages.
c) Damages – Indemnity recoverable by an employee who has sustained
injury to his right to labor which is property within the mantle of
constitutional protection.
d) Attorney’s fees – attorney’s fees are award to an employee due to
unlawful withholding of his wages, or he is compelled to litigate his case
by hiring a lawyer to represent him. Note that attorney’s fees awarded
under Article 111 of the Labor Code are in the form of damages.
4. Management Prerogative to Dismiss – it is a management prerogative to dismiss
its employee; however, it should be exercised without abuse of discretion. It is
subject to limitation founded in law, CBA or principles of fair play and justice
(Ferrer vs. NLRC, G.R. No. 100898, 5 July 1993)
5. Doctrine of Incompatibility – Where the employee has done something that is
contrary or incompatible with the faithful performance of his duties, his employer
can validly dismiss him. (Manila Chauffer’s League vs. Bachrach Motor Co.
O.G…159)
6. Procedural Requirements in Dismissal
a) Pre-Notice (First Notice) or Formal Specific Charges – The purpose of
formal charges is to inform the employee of the specific charges against
him.
b) Adequate and Responsive Answer – the purpose is to enable the
employee to prepare adequately his responsive and intelligible answer.
c) Opportunity to be heard – Under existing jurisprudence, while formal
hearing or conference is ideal, it is not an absolute mandatory or
exclusive avenue of due process. What is paramount in termination for
a just cause is to provide an employee an “ample opportunity to be heard
and to defend himself.” Indeed, notice and hearing can be dispensed
with. (Perez vs. PT&T, G.R. No. 152048, 29 April 2009)
d) Post-Notice (Notice of Dismissal) – the decision to dismiss is contained in
the last notice which states the reasons therefore. This is also designed
for the employee to contest the validity of the dismissal by filing the
proper complaint for illegal dismissal.
DEAN POQUIZ NOTES

7. Types of Due Process

a) Constitutional – protects a person from the government and assures him
of his rights in criminal, civil, or administrative proceedings.
b) Statutory – due process found in the Labor Code which protects an
employee from illegal dismissal.
c) Contractual – due process found in company policy which provides for
the steps to be followed in dismissal but the same was violated by the
company.
8. Types of Dismissal
a) Dismissal for a just cause with due process;
b) Dismissal for authorized cause with due process;
c) Dismissal for health reasons with due process;
d) Dismissal without just or authorized cause with due process;
e) Dismissal for just or authorized cause without due process (belated due
process rule)
f) Dismissal for a false or non-existent cause.
9. Degree of proof in Illegal Dismissal
• The onus probandi rests upon the employer to prove that the dismissal of an
employee is for a just cause with clear and convincing evidence. This quantum
of proof required is to give flesh and blood to the security of tenure clause of
the Constitution. (Duty Free Phils. vs. Tria, G.R. No. 174809, 27 June 2012)
• Circumstances Affecting Validity of Dismissal – Proportionality Rule or
Doctrine of Commensurate Penalty
o Gravity of the Offense
o Length of Service
o Employment Position
o Totality of Infractions
o Nature of Business
o First Offense Rule
o Principle of Compassion, Charity, and Understanding
o Principle of Equity
• Just Cause for Dismissal
a) Serious Misconduct – wrongful conduct committed in an aggravated or
serious manner. E.g. sexual harassment, fighting in company premises,
etc.
b) Willful Disobedience – this is also known as insubordination which is
refusal to obey a reasonable and lawful order
c) Gross and Habitual Neglect of Duty – it connotes want of care in the
performance of one’s duties. E.g. a company guard who was caught
sleeping again.
d) Fraud or Willful Breach of Trust
• Fraud – involves a breach of legal duty, trust, or confidence justly
reposed and is injurious to another
DEAN POQUIZ NOTES

• Breach of Trust – involves a matter that relate to protection of

company money or property. Thus, an employee entrusted with
trust and confidence breached such trust results in the employer’s
loss of confidence.
e) Commission of a Criminal Offense – against the person of the employer,
immediate members of his family, including managerial employees.
f) Analogous Causes – such as abandonment, violation of no-gambling
rule, or gross inefficiency.
• Abandonment – prolonged unauthorized absences; there must be
no intention to return shown by overt acts; filing of constructive
dismissal negates abandonment as it shows no intention to sever
employer-employee relationship)
• Distinctions between Just Cause and Authorized Cause Dismissal
a) In Just cause dismissal, the dismissal process is initiated by the
employee. On the other hand, in authorized cause, it is initiated by the
employer.
b) In just cause, payment of separation pay, as a rule, is not required. In
authorized cause, the law mandates payment of separation pay.
c) For failure to comply with due process requirement by the employer in
just cause, he is liable to pay indemnity, which is tempered
(P30,000.00). For violation of due process requirement by employer in
authorized cause, he is liable to pay indemnity, which is stiffer
(P50,000.00). (NOTICE TO DOLE – 30 days prior dismissal)
• Authorized Cause
a) Introduction of Labor Saving Device (Automation) – replacement of
workers by machines in order to effect more economy and greater
efficiency in methods of production. (Separation pay = 1 month pay or
1 month pay for every year of service)
b) Retrenchment (Downsizing; Delayering) – reduction of personnel due
to poor financial returns design to cut down on costs of operation. Also,
its purpose is to save a financially ailing company from eventually
collapsing (JATA Gen. Services vs. NLRC, G.R. No. 148340, 26 January
2004) (Separation pay = 1 moth pay or ½ month pay for every year of
service)
c) Redundancy – it exists where the services of an employee are in excess
of what is reasonably demanded by the actual requirement of the
enterprise. Does redundancy refer to duplication of work? NO. A
position is redundant when it is superfluous and it is the outcome of
some factors such as over-hiring of workers, decline in the volume of
business, etc.
d) Disease – when an employee suffers from a disease which cannot be
cured for (6) months and his continued employment is prohibited by
law or prejudicial to his health or to the health of his co-employees,
The employer shall terminate his services.
DEAN POQUIZ NOTES

e) Closure of Business – it is a management prerogative to close its

business operation due to serious economic reverses or due to adverse
economic conditions.
a. Partial Closure – also treated as retrenchment
b. Total Closure – due to serious economic conditions, the
company is not liable to provide separation pay. However, if it
is not due to serious financial reverses, it is liable to pay ½
month pay for every year of service.
• Other forms (just causes) of termination by an employee (Constructive Dismissal;
dismissal in Disguise
a) Serious insult – any act of the employer that injures or wounds the
feelings of an employee which may compel the latter to quit his job
resulting to constructive dismissal;
b) Unbearable Treatment – any act that affects the mind and body such
it produces a reasonable apprehension of physical violence, causes
mental distress and sorrow which compelled the employee to resign,
results in constructive dismissal.
c) Commission of a Criminal Offense by the employer against the person
of an employee – such as slapping the employee plus the threat if
scratching her face with a pair of scissors constitutes an offense which
shall justify employee’s act of severing employer-employee
relationship.
• Employment Not Deemed Terminated
a) Bona fide suspension of operation of business not exceeding (6)
months
b) Fulfillment of a personal civic or military duty even if it exceeds (6)
months
c) Floating status or off-detail status for period of (6) months
d) Employee on a leave of absence
e) 30-day preventive suspension of an employee
f) Employee filed a case of illegal dismissal
*CAN A RE-EMPLOYED EMPLOYEE RESTORE TO HIS FORMER POSITION? NO. In the
eyes of the law, he is a new employee. Such restoration is upon the discretion of
employer.

Types of Employment
(A) Regular Employment
1. By nature of work – the employee is engaged to perform job which is usally
necessary or desirable in the usual business or trade of the employer. E.g.
mechanic in an auto repair shop.
2. By years of service – the employee renders services for at least one year of service,
whether such service is continuous or broken, with respect to the activity in which
he is employed.
DEAN POQUIZ NOTES

3. Upon the expiration of the probationary period – the general probationary period
is 6 months; beyond the 6 months period, the employee becomes a regular
employee. For teachers with full-time satisfactory service, probation is 3 years not
3 school years.
4. Upon expiration of training period of special types of workers under Book II of the
Labor Code
5. 5 Pre-termination of learnership contract – provided a learner has been trained
for 2 months
6. Casual employee – who has rendered at least 1 year of service, a regular employee.
7. Constant rehiring or renewal contract – such as constant rehiring of project
employees.
8. Seasonal employees – who are employed from season performing the same tasks.
9. Non-project employezes – belonging to work-pool.
B. Casual Employment – employee is engaged to work in an activity that is not usually
necessary or desirable in the usual business of employer. E.g. a carpenter hired to repair
the roof of an auto repair shop is a casual employee because he performs job that is ony
incidental to the principal activity of the employer.
C. Fixed-term, fixed-period, or contractual employment – an employee is engaged to work
on a specific project or undertaking, the completion of which has been determined at the
time of the engagement of the employee. The contract terminates itself by the expiration
of contract.

Prescription of Offenses and Claims

a) Pure money claims
b) Incremental proceeds arising from tuition fees – 3 years
c) Criminal cases under the Labor Code – 3 years
• Except:
▪ ULP – 1 year
▪ Simple Illegal Recruitment – 5 years
▪ Syndicated Illegal Recruitment – 20 years
▪ Large Scale Illegal Recruitment – 20 years
d) Union Fund – 3 years
e) Employees Compensation Claims – 3 years
f) Illegal Dismissal – 4 years
g) Reinstatement – 4 years
h) Social Security Claims – 4 years
i) GSIS Claims – 4 years
• Except: Life Insurance Claims and Retirement Claims – Imprescriptible

LABOR RELATIONS LAW

1. Trisectoral composition of the NLRC
The NLRC is a trisectoral body whose composition comes from the government,
labor, and management sectors. It sits en banc for purposes of policy
determination and promulgation of rules and regulation governing the hearing
DEAN POQUIZ NOTES

and disposition of cases before any of its divisions or its regional arbitration
branches.
2. NLRC’s adjudicatory functions exercised through division
The NLRC exercises its adjudicatory functions and all other powers and duties
through its divisions. The Divisions of the NLRC have exclusive appellate
jurisdiction over cases within their respective territorial jurisdiction (Mina vs.
NLRC, 14 July 1995)
3. NLRC Commissioners and Labor Arbiters
The NLRC Commissioners and Arbiters shall hold office during good behavior
until they reach the age of 65 years. The President may extend their services
to 70 years upon the recommendation of the Commission en banc.
4. Jurisdiction of the Labor Arbiter
a) Unfair Labor Practice cases. EXCEPT: ULP cases under the assumption of the
President or Secretary of Labor in a vital industry dispute or by agreement of
the parties through voluntary arbitration.
b) Termination Disputes. EXCEPT – termination disputes under the assumption
power of the President or Secretary of Labor or by agreement of the parties
through voluntary arbitration
c) Money claims in excess of 5,000 – EXCEPT – money claims under the
assumption power of the President or Secretary of Labor, by agreement of
parties through voluntary arbitration or through the exercise by the Regional
Director of the DOLE of its visitorial (inspection) or enforcement powers.
d) Damages – the grant of damages is brought about by his illegal dismissal. The
purpose of damages is indemnity and not punishment but to alleviate the
moral suffering he has undergone by virtue of his unwarranted dismissal.
e) All matters that pertain to any concerted activity such as strike, picketing,
lockouts, etc.
f) All claims that have reasonable causal connection with employer-employee
relationship.
g) All claims arising out of employer-employee relationship of an Overseas
Filipino Worker including damages and disability claims
h) All claims of employees of government-owned or controlled corporations
without original charters known also as subsidiaries or corporate offsprings.
i) Jurisdiction over collateral matters – if the Labor Arbiter has jurisdiction over
the main case, likewise he has jurisdiction over all matters that are collateral
or incidental thereto. E.g. Illegal dismissal case, those that are collateral
thereto may include in determination of backwages, damages, attorney’s fees,
or issuance of writ of execution.
j) Deductions for tax purposes are money claims under Labor Arbiter.
5. Cases not cognizable by the Labor Arbiter
a) The aggregate amount of the money claim does not exceed 5,000
b) Claims for employees compensation, social security, Philhealth, and maternity
benefits
DEAN POQUIZ NOTES

c) Claims for liquidated damages for breach of non-compete provision in an

employment contract is a intrinsically civil dispute
d) Delito, quasi-delito, or tort
e) Intra corporate cases such as dismissal of corporate officers shall be cognizable
by the RTC acting as corporate court under Securities Code of 2000
f) Dismissal case filed against a local water district is governed by Civil Service
Law
g) Cases involving government-owned or controlled corporations with original
charters are governed by Civil Service Law.
h) Cases on unresolved grievances arising from interpretation or enforcement of
CBA or company personnel policies
i) Cases arising from violation of training agreements
j) International organizations with functional immunities such as SEAFDEC, IRRI,
and ADB are beyond the jurisdiction of Labor Arbiter
k) Money claims against government agencies such as the Department of
Agriculture. The claims should be filed with the COA
l) The Labor Arbiter has no jurisdiction over cases that become final and
executory under doctrine of immutability of final judgment. The exception is
when there was a motion filed for purposes of recomputation of monetary
awards.
m) The Labor Arbiter has no power to issue a writ of injunction in labor dispiutes
involving a strike or lockout.

6. NLRC Powers
a) Contempt power – the NLRC has the power to hold a person in contempt and
impose appropriate penalties for any misbehavior or misconduct that may
obstruct the exercise of its powers and functions.
b) Injunctive power – the purpose of injunctive write is to preserve the status quo
until the merits of the case are fully heard. The issuance requires a hearing at
which parties are given the opportunity ti be heard. May the NLRC issue a TRO
ex parte? Yes. Reason – it is a mere interlocutory order which contemplates
further hearing for the application of a temporary injunction upon notice to
the adverse party. Indeed in can be issued without notice and hearing when
the urgency of the situation or extreme necessity demands. (Bisig vs. NLRC,
226 SCRA 499)
c) Cases under assumption of the President and Secretary of Labor certified to
the NLRC for compulsory arbitration.
d) Appellate power
1. Cases decided by the LA under Article 217 of the LC and Section 10 of RA8042
over cases involving OFWs
2. Wage distortion cases decided by LA under Article 124 of LC in non-unionized
establishments
3. Cases decided by LA on contested cases under Art. 128 of LC on visitorial and
enforcement powers
DEAN POQUIZ NOTES

4. Cases decided by the Regional Directors of the DOLE in the exercise of their
adjudicatory functions under Art. 129 of LC
7. Principle of emancipation of labor relations (DOCTRINE OF SPEEDY LABOR
JUSTICE)
This principle simply provides that rules of procedure and evidence in courts of
law shall not control in labor proceedings. The same may be relaxed in labor cases to
serve the demands of substantial justice. (Havtor vs. NLRC, 372 SCRA 271)

8. Position Paper proceedings not violative of due process

Labor cases can be decided on the basis of position papers and other documents
without resorting to technical rules of procedure and evidence observed in the
courts of justice. Such a procedure complies with the requirements of die process.
(Asia World vs. Ople, 152 SCRA 219)

9. Grounds for appeal

a) Abuse of discretion
b) Fraud or coercion
c) Graft and corruption
d) Question of Law
e) Serious errors in the findings of facts
10. Requirement for appeal to NLRC
a) Memorandum of appeal copy furnished the other party. Failure to copy
furnish the other party is not fatal to appeal; it is a mere procedural and
formal lapse.
b) Payment of an Appeal, docket fee or filing fee.- Non-payment is fatal to
appeal because payment of docket fee is not a matter of procedure but
a matter of jurisdiction. It is a jurisdictional requirement.
c) Posting of cash or surety bond – if the judgment involves a monetary
award. The law fixes 2 types of bond – cash or surety. The exception is
property bond pursuant to UE-RM ruling.
d) Proof of service to the adverse party.
11. Motion to reduce bond accompanied by posting an appeal bond
Pursuant to Mc Burnie vs. Ganzon, the appellant employer can post 10%
of the amount of the bond. However, if the NLRC denied the motion, the employer
is given 10 days fresh period to post the full amount of bond. The 10% posting
applies only to motion to reduce bond not the bond to perfect an appeal.
12. Receipt of evidence for the first time on appeal; ALLOWED.
It is settled the NLRC is not precluded from receiving evidence, even for
the first time on appeal, because technical rules of procedure are not binding in
labor cases. (Clarion Printing House vs. NLRC, G.R. No. 148372, 27, June 2005)

13. Change of theory on appeal, not proper

A change of theory on appeal is not proper. It is offensive to the basic rule
of fair play and violative of due process. Thus, prescription cannot be raised for
DEAN POQUIZ NOTES

the first time on appeal, much less in a motion for reconsideration. (Dosch vs.
NLRC, 123 SCRA 296; Jacqueline vs. NLRC, 69 SCRA 242)

14. Labor Arbiter’s decision as to reinstatement aspect, immediately self-executory

(Pioneer ruling)
As to the reinstatement aspect of the decision of the Labor Arbiter, it is
immediately self-executory; that is, the employee is restored to his former
position sans the procedural requirement of a write of execution.

15. Reinstatement pending appeal

The employer is given 2 options under the law, that is, to reinstate
employee actually or in the payroll. If the Supreme Court finally finds legal
dismissal and sets aside the decision a quo finding the illegal dismissal, the
employee is not required to reimburse the salaries received pending appeal
because the principle of social justice renders inapplicable the civil law doctrine of
unjust enrichment. (Garcia vs. PAL, G.R. No. 164856, 20 January 2009)

16. NLRC decision subject to petition for certiorari pursuant to St. Martin’s Funeral
Home ruling.
The party adversely affected by the BLRC decision may obtain a review and
nullification of that decision through the extraordinary writ of certiorari under
Rule 65 to be initially filed with the Court of Appeals under the doctrine of
hierarchy of courts.

17. Petition for review on certiorari to the Supreme Court from the decision of Court
of Appeals under rule 45.
The appeal from a final disposition of the Court of Appeals is a petition for
review on certiorari under Rule 45. Under Rule 45, the reglementary period to
appeal is 15 days from notice of judgment or denial of motion for
reconsideration.(ATC vs. CA, G.R. No. 144644, 15 March 2004)

18. Judicial Review of question of facts

The final order or resolution of the Court of Appeals may be appealed to the
Supreme Court by filing a petition for review under Rule 45 grounded on question of
law, which is 15 days from notice of judgment or denial of the motion for
reconsideration.

Questions of fact should not be reviewed by the Supreme Court as it is not a

trier of facts. However, judicial review of findings of facts are allowed under the
following instances: 1. When the factual findings of the Labor Arbiter, the NLRC, and
the Court of Appeals are contradictory or diametrically opposed to each other; 2.
When the conclusions of the CA are based on speculations, surmises, conjectures,
and misapprehension of facts; and 3. When the CA failed to consider facts which if
DEAN POQUIZ NOTES

properly considered would justify a different conclusion. (Bascon vs. CA, G.R. No.
144899, 5 February 2004)

19. Write of execution issued by the Labor Arbiter

After termination of the pre-execution conference, the Labor Arbiter can issue
a write of execution as it is its ministerial duty once the decision has become final and
executory.

20. Grounds for motion to quash.

A writ of execution may be quashed on the following grounds: (Heirs of Guballa
vs… 168 SCRA 518)
a. The writ has been improvidently issued
b. The writ issued to a non-party
c. The writ is issued without authority
d. The writ is defective due to the irregularity in the issuance

21. Execution pending appeal

A party may already move for the execution of monetary award of the NLRC
even during the pendency of the petition for certiorari of the NLRC decision awarding
the same with the Court of Appeals or the Supreme Court unless restrained by the
latter. (Brizuela vs. Dingle, G.R. No. 175371, 30 April 2008)

22. Bureau of Labor Relations

• Concurrent and original jurisdiction of BLR and the Regional Office of the DOLE
a. All inter-union and intra union conflicts
b. All disputes affecting labor management relations in all workplaces
• Concurrent administrative functions of the BLR and DOLE Regional Office
a. Registration of labor unions
b. Keeping of registry of all labor unions; and
c. Keeping a file of all CBAs

23. Complaints involving federations, national unions, etc.

All complaints or petitions involving federations, national unions, or industry
unions shall be filed with DOLE regional office or the BLR; but such complaint shall be
heard and resolved by the BLR.

24. Conciliation/Mediation Function of NCMB

The conciliation/mediation function of the BLR are now transferred to the NCMB

25. Duties of the NCMB in case of negotiation deadlock

If the parties fail to settle issues in collective bargaining, any party may declare
a deadlock. Once there is a deadlock, the law directs the NCMB to intervene either:

a. Motu proprio
DEAN POQUIZ NOTES

b. Upon request of the management

c. Upon request of the union
d. Upon joint request of the management and the union.

26. Quitclaim declared null and void

A quitclaim in which the consideration is scandalously low and inequitable
does not bar the pursuit if the worker’s legitimate claim. It is null and void for
being contrary to public policy. (Cruz vs. NLRC, 203 SCRA 286)

27. Registry of unions, registration of CBA

The BLR shall keep a registry of all legitimate labor organizations. It shall
also register CBAs.

28. Validity of CBA

Substantive validity of the CBA is not affected by non-registration.
However, an unregistered CBA does not bar certification election.

29. Contract bar rule

The existence of the duly registered CBA bars the holding of a certification
election or any action that disturbs such CBA.

30. Certification election not barred; exception to the contract-bar rule

a. CBA is not registered;
b. CBA is incomplete/inadequate (sweetheart contract)
c. CBA was prematurely extended;
d. Mass disaffiliation from the majority union (schism or split);
e. CBA entered into during the pendency of a petition for certification
election.

31. Legal effects of registration of a union (Rights of a union)

a) Right of representation – applies only union members
b) Right to be certified as the collective bargaining agent in the bargaining
unit – applies to all employees
c) Right to acquire and dispose of property
d) Right to sue and be sued
e) Right to engage in activities which redound to the benefit of the union
members
f) Right to tax exemption
g) Right to be furnished with employee’s audited financial statement upon
written request of the union.