Paulino Ungos III

Lawyer | Law Professor | Author

Tag: 2016-01

  • Med-Arbiter’s Ruling on the Existence or Non-existence of Employer-employee Relationship

    On 1 July 2007, complainants formed a union and registered it with the Department of Labor and Employment (DOLE). On 24 August 2007, the union filed a petition for certification election before the DOLE.

    In September 2007, complainants were terminated from their employment on the ground of cessation of business operations by the contractor-growers of Hijo Resources Corporation (HRC). On 19 September 2007, complainants, represented by the union, filed a case for unfair labor practices, illegal dismissal, and illegal deductions with a prayer for damages and attorney’s fees before the National Labor Relations Commission (NLRC).

    On 19 November 2007, the DOLE Med-Arbiter issued an Order dismissing the union’s petition for certification election because no employer-employee relationship existed between the complainants and HRC. Complainants did not appeal the Med Arbiter’s Order but pursued the illegal dismissal case they filed.

    Is the Labor Arbiter in the illegal dismissal case bound by the ruling of the Med-Arbiter regarding the existence or non-existence of employer-employee relationship between the parties in the certification election case?

    No.

    The Supreme Court applied Sandoval Shipyards, Inc. v. Pepito 1G.R. No. 143428, June 25, 2001, 412 PHIL 148-157, which cited Manila Golf & Country Club, Inc. v. Intermediate Appellate Court 2G.R. No. 64948, September 27, 1994, 307 PHIL 219-230, and reiterated the nature of a certification proceeding.

    A decision in a certification election case regarding the existence of an employer-employee relationship does not foreclose all further dispute between the parties as to the existence or non-existence of such relationship.

    It is well settled that for res adjudicata, or the principle of bar by prior judgment, to apply, the following essential requisites must concur:

    (1) there must be a final judgment or order;

    (2) said judgment or order must be on the merits;

    (3) the court rendering the same must have jurisdiction over the subject matter and the parties; and

    (4) there must be between the two cases identity of parties, identity of subject matter and identity of cause of action.

    Clearly implicit in these requisites is that the action or proceedings in which is issued the ‘prior Judgment’ that would operate in bar of a subsequent action between the same parties for the same cause, be adversarial, or contentious, ‘one having opposing parties; (is) contested, as distinguished from an ex parte hearing or proceeding . . . of which the party seeking relief has given legal notice to the other party and afforded the latter an opportunity to contest it.’ and a certification case is not such a proceeding x x x

    A certification proceeding is not a ‘litigation’ in the sense in which this term is commonly understood, but a mere investigation of a non-adversary, fact-finding character, in which the investigating agency plays the part of a disinterested investigator seeking merely to ascertain the desires of the employees as to the matter of their representation. The court enjoys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representatives by the employees. (Emphasis, mine.)

    Further reading:

    • Hijo Resources Corp. v. Mejares, G.R. No. 208986, January 13, 2016.

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  • Penalty for Illegal Recruitment of Migrant Workers

    In a case of illegal recruitment in large scale, the trial court found the appellant guilty beyond reasonable doubt of the crime and sentenced her to suffer the indeterminate penalty of six (6) years and one (1) day as minimum to eight (8) years as maximum, and to pay a fine in the amount of P200,000.00 with subsidiary liability in case of insolvency.

    Was the penalty imposed correct?

    No.

    The Migrant Workers and Overseas Filipinos Act of 19951SEC. 6. Definition. – x x x (m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and (n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. provides that illegal recruitment shall be considered an offense involving economic sabotage if committed in large scale, viz., committed against three or more persons individually or as a group.

    Under the same law,2SEC. 7. Penalties. – x x x (b) The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. (as amended by Republic Act No. 10022) the penalty of life imprisonment and a fine of not less than Two Million Pesos (P2,000,000.00) nor more than Five Million Pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage.

    In the present case, six (6) private complainants testified against appellant’s acts of illegal recruitment, thereby rendering her acts tantamount to economic sabotage.

    For the crime of illegal recruitment in large scale, the penalty of life imprisonment and a fine of not less than Two Million Pesos (P2,000,000.00) nor more than Five Million Pesos (P5,000,000.00) with subsidiary liability in case of insolvency ought to have been imposed against the appellant.

    Further reading:

    • People v. Solina, G.R. No. 196784, January 13, 2016.

  • Continuing Need and Desirability of Services

    The Supreme Court did not give credence to the claim that Mr. L was not OH, Inc.’s regular employee.

    The Labor Code of the Philippines1Under Article 295 (formerly Article 280) provides:

    Art. 295. Regular and casual employment. — The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.


    An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

    In this case, the Court found that Mr. L was under the continuous employ of OH, Inc. since 3 March 1995 until the latter placed him on floating status in February 2000.

    OH, Inc. was engaged in the business of managing residential and commercial condominium units at the OE Residences, a condominium hotel building in Makati City. Its business required that it maintained a pool of housekeeping staff to ensure that the premises remain an uncluttered place of comfort for the occupants.

    OH, Inc. continuously employed Mr. L precisely because of the indispensability of his services to its business.

    According to the Court, his uninterrupted employment by OH, Inc., that spanned more than a year, manifested the continuing need and desirability of his services, which characterize regular employment.

    Further reading:

    • Olympia Housing, Inc. v. Lapastora, G.R. No. 187691, January 13, 2016.

  • Guiding Principle in Conversion of Agricultural Land

    On 15 June 2011, the Supreme Court promulgated a Decision in Ayala Land, Inc. v. Castillo1G.R. No. 178110, June 15, 2011, 667 PHIL 274-350. upholding the Conversion Order issued by the Secretary of the Department of Agrarian Reform on 31 October 1997. The land in this case is in Silang, Cavite.

    The farmers who were parties in this case filed a Motion for Reconsideration to the said decision arguing that conversion is not a legal mode to exempt the property from the coverage of Comprehensive Agrarian Reform Program.

    The Court denied the motion because the guiding principle2Department of Agrarian Reform Administrative Order No. 01, series of 2002, Section 1. in conversion governs only prime agricultural lands.3Department of Agrarian Reform Administrative Order No. 01, series of 2002, Section 4 provides:
    SECTION 4. Areas Non-Negotiable for Conversion — An application involving areas non-negotiable for conversion shall not be given due course even when some portions thereof are eligible for conversion. The following areas shall not be subject to conversion:
    4.1. Lands within protected areas designated under the NIPAS, including mossy and virgin forests, riverbanks, and swamp forests or marshlands, as determined by the DENR;
    4.2. All irrigated lands, as delineated by the DA and/or the National Irrigation Administration (NIA), where water is available to support rice and other crop production, and all irrigated lands where water is not available for rice and other crop production but are within areas programmed for irrigation facility rehabilitation by the government;
    4.3. All irrigable lands already covered by irrigation projects with firm funding commitments, as delineated by the DA and/or NIA; and
    4.4. All agricultural lands with irrigation facilities.

    In the present case, the subject land could not even be classified as agricultural land.

    First, the subject land was already reclassified from agricultural to other uses as early as 7 May 1996.

    Second, various government agencies found that:

    • The property is about 10 kilometers from the Provincial Road;
    • The land sits on a mountainside overlooking Santa Rosa technopark;
    • The topography of the landholding is hilly and has an average slope of over 18%. It is undeveloped and mostly covered with a wild growth of vines, bushes, and secondary growth of forest trees;
    • The dominant use of the surrounding area is its industrial/forest growth as the landholding is sitting on a mountain slope overlooking the Sta. Rosa Technopark; and
    • The area is not irrigated and no irrigation system was noted in the area.

    Finally, the Department of Agrarian Reform had long investigated and ruled that the property was not suitable for agricultural use, as it had remained undeveloped with no source of irrigation.

    The Court thus concluded that the subject land was not prime agricultural land as contemplated under the law. The Department of Agrarian Reform properly issued the assailed Conversion Order.

    Further reading:

    • Ayala Land, Inc. v. Castillo, G.R. No. 178110 (Resolution), January 12, 2016.

  • Defiance of Assumption/Certification Orders

    Once the Secretary of Labor assumes jurisdiction over a labor dispute, a strike, whether actual or intended, is automatically enjoined. If a strike has been declared, the strikers must return to work even if they filed a motion for reconsideration of the assumption order.1ARTICLE 278. (Formerly 263) Strikes, Picketing, and Lockouts. — x x x (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. x x x

    The moment a striker defies a return-to-work order, he is deemed to have abandoned his job. It is already in itself knowingly participating in an illegal act. Considering that an illegal act was committed, all strikers, whether union officers or plain members, may be declared to have lost their employment status.2ARTICLE 279. (Formerly 264) Prohibited Activities. — (a) x x x Any 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 x x x

    In this case, the Airline Pilots Association of the Philippines (ALPAP) filed a Notice of Strike on June 5, 1998 and staged a strike against the Philippine Airlines (PAL) on the same day at around 5:30 in the afternoon. The Secretary of the Department of Labor and Employment (DOLE) issued a Return-to-Work Order on 7 June 1998 after failing to to amicably settle the dispute between them. The said order stated:

    “WHEREFORE, FOREGOING PREMISES CONSIDERED, all striking officers and members of ALPAP are hereby ordered to return to work within twenty-four (24) hours from receipt of this Order and for PAL management to accept them under the same terms and conditions of employment prior to the strike.


    “Our directive to both parties to cease and desist from committing any and all acts that will exacerbate the situation is hereby reiterated.”

    ALPAP was served a copy of the Return-to-Work Order on 8 June 1998. Thus, the ALPAP strikers had 24 hours, or until 9 June 1998, to comply with said Order. However, the strikers only reported back to work on 26 June 1998. As a result of their defiance of the DOLE Secretary’s Return-to-Work Order, the strikers lost their employment status as of 9 June 1998.

    One pilot, Ruderico C. Baquiran, filed a complaint claiming that he was illegally dismissed from employment. The Supreme Court, however, disagreed for it found no evidence that he complied, or at least, attempted to comply with the Return-to-Work Order. Neither was there a showing that he reported back for work with the other ALPAP members on 26 June 1998. According to the Court, Baquiran cannot be in a better position than the other ALPAP members who belatedly reported for work on 26 June 1998 and were still deemed to have lost their employment. Baquiran simply abandoned his job.

    By contrast, the Court reached a different conclusion with regard to another pilot, Gladys L. Jadie, also a complainant in the illegal dismissal case. The Court found that Jadie was on maternity leave during the strike. She did not join the strike and could not be reasonably expected to report back for work by 9 June 1998 in compliance with the Return-to-Work Order. PAL’s act of terminating her employment was accordingly declared illegal.

    Further reading:

    • Rodriguez v. Philippine Airlines, Inc., G.R. Nos. 178501 & 178510, January 11, 2016.

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  • Transfer versus Promotion

    Somido and Cortes were engaged as a Warehouse Checker and Forklift Operator, respectively.

    The employer in this case dismissed these employees for insubordination. It explained that it merely transferred the latter to the Delivery Section to work as a Delivery Supervisor/Coordinator without any change in ranks, status and salaries. Since said employees arrogantly refused to comply with its directive, they were consequently dismissed from employment for valid cause.

    The Supreme Court disagreed.

    The Court examined the positions of Warehouse Checker and Forklift Operator and found that they were classified as rank-and-file employees. On the other hand, the Court found that the job of a Delivery Supervisor/Coordinator required the exercise of discretion and judgment from time to time. Specifically, a Delivery Supervisor/Coordinator

    • assigned teams to man the trucks;
    • oversaw the loading of goods;
    • checked the conditions of the trucks;
    • coordinated with account specialists in the outlets regarding their delivery concerns; and
    • supervised other personnel about their performance in the warehouse.

    A Delivery Supervisor/Coordinator’s duties and responsibilities were apparently not of the same weight as those of a Warehouse Checker or Forklift Operator. Despite the fact that no salary increases were effected, the Court viewed the employees’ assumption of the post of a Delivery Supervisor/Coordinator as a promotion. The employees’ refusal to accept the same was therefore valid.

    An employee is not bound to accept a promotion, which is in the nature of a gift or reward. Refusal to be promoted is a valid exercise of a right. Such exercise cannot be considered in law as insubordination, or willful disobedience of a lawful order of the employer, hence, it cannot be the basis of an employee’s dismissal from service.

    Further reading :

    • Echo 2000 Commercial Corp. v. Obrero Filipino-Echo 2000 Chapter-CLO, G.R. No. 214092, January 11, 2016.

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  • Proving Involuntary Resignations

    It is incumbent upon an employee to prove that his or her resignation is not voluntary.

    The overseas Filipino worker in this case maintained that she was threatened and coerced by her employer to write the resignation letter, to accept the financial assistance and to sign the waiver and settlement. She insisted that her act of resigning was involuntary and thus concluded that she has been illegally dismissed from employment.

    Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether in fact, he or she intended to sever from his or her employment.

    In this case, the Supreme Court was not convinced of complainant’s assertions, for it was unable to find proof supporting the same.

    First, in illegal dismissal cases, the employer has the burden of proving that the employee’s dismissal was legal. However, to discharge this burden, the employee must first prove, by substantial evidence, that he had been dismissed from employment. Here, the Court found no competent evidence to prove that her employer used force and threat before she wrote the resignation letter.

    For intimidation to vitiate consent, the following requisites must be present:

    • that the intimidation caused the consent to be given;
    • that the threatened act be unjust or unlawful;
    • that the threat be real or serious, there being evident disproportion between the evil and the resistance which all men can offer, leading to the choice of doing the act which is forced on the person to do as the lesser evil; and
    • that it produces a well-grounded fear from the fact that the person from whom it comes has the necessary means or ability to inflict the threatened injury to his person or property.

    In this case, the Supreme Court ruled that the worker had failed to prove the existence of the essential requisites. Thus, it concluded that the worker’s bare allegations of threat or force did not constitute substantial evidence to support a finding of forced resignation.

    And second, the following circumstances of the resignation led the Court to rule-out a finding of involuntariness:

    • The worker executed a resignation letter in her own handwriting;
    • She also accepted the amount of P35,000.00 as financial assistance and executed an Affidavit of Release, Waiver and Quitclaim and an Agreement, as settlement and waiver of any cause of action against her employer; and
    • The affidavit of waiver and the settlement were acknowledged/subscribed before a Philippine Labor Attache, and duly authenticated by the Philippine Consulate. The Agreement likewise bears the signature of a conciliator-mediator.

    The Court clarified that an affidavit of waiver duly acknowledged before a notary public is a public document which cannot be impugned by mere self-serving allegations. Proof of an irregularity in its execution is absolutely essential.

    Furthermore, the signatures of these officials sufficiently proved that the worker was duly assisted when she signed the waiver and settlement. The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. The Court, however, remarked that no such evidence was presented.

    A waiver or quitclaim is a valid and binding agreement between the parties, provided that it constitutes a credible and reasonable settlement, and that the one accomplishing it has done so voluntarily and with a full understanding of its import.

    Since there was no extant and clear proof of the alleged coercion and threats the worker allegedly received from her employer that, in turn, led her to terminate her employment relations with her employer, the Court concluded that the worker resigned voluntarily.

    Further reading:

    • Iladan v. La Suerte International Manpower Agency, Inc., G.R. No. 203882, January 11, 2016.

  • Strikes and Good Faith

    To be lawful, a strike must have a lawful purpose and should be executed through lawful means.

    The union in this case asserted that it conducted a strike in good faith. It claimed to have had a sincere belief that its employer had committed an unfair labor practice. Also, it hoped that the said employer would be willing to negotiate the economic aspects of their collective bargaining agreement that was to expire soon. The union further insisted that all it did was to conduct an orderly, peaceful, and moving picket.

    The Supreme Court disagreed.

    The union’s disregard of the procedural requirements for conducting a valid strike had negated its claim of good faith. If such a claim were to be upheld, it was not enough for the union to believe that the employer was guilty of unfair labor practice. It must also sufficiently show that the strike complied with the law.

    Under the procedural requirements1Article 263 of the Labor Code specifies the limitations on the exercise of the right to strike, viz.:

    Article 263. Strikes, picketing, and lockouts. . . .

    xxx xxx xxx

    (c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employers may file a notice of lockout with the [Department] at least 30 days before the intended date thereof. In cases of unfair labor practices, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling off period shall not apply and the union may take action immediately.

    (d) The notice must be in accordance with such implementing rules and regulations as the [Secretary] of Labor and Employment may promulgate.

    (e) During the cooling-off period, it shall be the duty of the [Department] to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.

    (f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The [Department] may, at its own initiative or upon request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the [Department] the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided.

    xxx xxx xxx     for a valid strike, the following should be present:

    • a notice of strike filed with the Department of Labor and Employment at least 30 days before the intended date thereof, or 15 days in case of unfair labor practices;
    • a strike vote approved by the majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and
    • a notice of the results of the voting at least seven days before the intended strike given to the Department of Labor and Employment.

    These requirements are mandatory, such that non-compliance therewith by the union will render the strike illegal.

    In the present case, the Court found that the employees failed to:

    • file the notice of strike with the Department of Labor and Employment;
    • observe the cooling-off period; and
    • submit the result of the strike vote.

    In addition, although the union conducted a strike vote, the same was done by open, not secret, balloting.

    Significantly, the strike was far from orderly and peaceful. When the strike started, the union had on several instances obstructed the ingress into and egress from the employer’s offices. Record revealed evidence that depicted the acts of obstruction, violence and intimidation committed by the union during the picketing. Record even bared proof that the union forced the employer’s officers to resort to unusual means of gaining access into its premises at one point.

    The Court concluded that although the claim of good faith may have attached in so far as the union’s grounds for the strike, the same cannot be said as regards its conduct of the strike. The union should therefore bear the consequence of its non-compliance with the legal requirements.

    Further reading:

    • Hongkong & Shanghai Banking Corp. Employees Union v. National Labor Relations Commission, G.R. No. 156635, January 11, 2016.