BAR AREAS BY DEAN POQUIZ:
1) Occupational Disease: Under the law, it must be listed as an occupational disease. Book IV of the Labor Code enumerates the disease as compensable. Does it mean to say that if the disease is not listed, it is not compensable? Under the new law, it must be listed but if it is not listed, it is not compensable. However, there’s an exception, if the employee dies of a hemorraghic pancreatitis (bangungot). 2) In injuries/death, the one liable is the State Insurance Fund. This fund is given by the employer for its employees. a. Doctrine of Limited Liability of State Insurance Fund: The State Insurance Fund is not liable. How? In case of intoxication, self-inflicted injury, notorious negligence. b. Exceptions: (suicide is compensable) i. Insanity ii. Worker is in a state of delirium or point of death iii. Uncontrollable impulse 1. Example: worker deliberately disregarded his own notorious personal safety. 2. Tanduay Rhum Doctrine: workers wanted to drink after a hard day’s labor. They consumed all the alcohol. One of the workers was still sober. So he rotated his eyeballs, he saw a night oil of winter green. So he dies instantly. It is compensable. The SC reasoned that in taking this mentholatum, there was no advisory from his coworkers that the drink was fatal. 3) Illegal dismissal cases a. What are the grounds for appeal? Grave Abuse of Discretion Errors in the findings of law Fraud Graft and corruption • • • •
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What are the requisites for appeal? Payment of docket fee, filing fee, appeal fee (not a matter of procedure but a jurisdictional requirement) Submission of the Memo of Appeal Is the non-furnishing of the MOA a fatal defect? NO. Only a mere procedural formal lapse. Posting of a Bond Two types: Cash and Surety Surety issued by a reputable surety company: registered by insurance company and accredited by both Supreme Court and NLRC. How do you determine the amount? Does the LA fix it? No. It is the law fixes. The monetary award excluding damages and attorneys fees. Can you substitute a cash or surety surety bond with a bank guaranty? No. A Deed of Assignment of a bank deposit is also not allowed to be substituted for cash or surety bond. One exception: UERM ruling (The appellant employer can post a property bond if the amoutn is substantial to cover the monetary award). How much can you post? Reasonable amount. You can post a partial bond. !
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4) Reinstatement is NOT proper under under the following circumstances: a. Employee does not want to be reinstated but in lieu of this he should be paid paid separation pay and backwages; b. Dismissal for cause; c. Principle of waiver/laches i. No legal prohibition for an employee to strike out a living while waiting for the execution of the case. ii. Unreasonable delay when an employee does does not assent his right to be reinstated for 4 years. Claim for reinstatement has become stale. iii. If there is severe antagonism between employer and employee, then the proper remedy is to pay separation pay and backwages as a form of compromise instead of reinstatement. d. Physical disability e. Prescription: 4 years! Why? SC said 4 yrs. prescriptive period in Civil Code is followed. There is injury to the right of the workers. f. Employee has become overaged/retirable. g. Employee is not conducive to working harmony (Strained Relations)
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Closure of business: Although reinstatement is a legal impossibility, it is physically impossible. OFWs = like seamen; no reinstatement; LA has jurisdiction.
5) Power to decide/resolve certified cases c.f. Assumption of Jurisdiction (Art. 269 (g)) a. How may the NLRC resolve vital industry disputes? b. The President and Sec. of DOLE may assume jurisdiction in an industry vital to national interest that may trigger strike/labor dispute. c. RA 6715 (Revised Labor Code) speaks about industries indispensable to national interest. d. Assumption of power is a polic regulation; plenary, full, complete and at the same time discretionary. e. Can the SOLE assume jurisdiction to an industry not vital to national interest? Hopia Factory cases says Pwede! Assumption order is plenary, full and discretionary. f. When will SOLE assume jurisdiciton? i. Motu proprio ii. Motion of employer iii. Petition for assumption of Union iv. Joint petition of both employer and Union g. SOLE assumes jurisdiction then he issues: i. Issues assumption of jurisdiction ii. May the SOLE resolve it by himself? YES. iii. May a VA resolve a vital to industry dispute? By agreement of employer and union, yes he can. To authorize the VA/Panel of Arbitrator, they must submit a submission agreement. 6) Assumption of Jurisdiction’s legal effects: a. It has the effect of a Writ of Injunction but does not have to comply with a WOJ’s requisites; b. A return to work order us deemed written in the Assumption Order; c. Striking worker should return to work. Otherwise, they can be dismissed since they are doing a prohibited act. d. Striking worker must be reinstated in the same working conditions. AOJ contemplates only actual reinstatement. i. Exception: payroll reinstatament under special circumstanes e. SOLE exercises concurrent jurisdiction over cases cognizable by the LA such as monely claims, ULP, I.D. i. May SOLE order reinstatement, award full backwages? YES. ii. May VA order reinstatement and order backwages? YES. 7) What is ULP? It is an act of employer, employee or agents which violates the constitutional right of the worker to self-organization and the right to engage in a peaceful concerted activities for their mutual benefit. a. A ULP is a criminal/civil offense. LA has no jurisdiction over the criminal aspect, it is the regular court that has jurisdiction. b. There must be a final verdict of LA on administrative or civil aspect of such ULP before filing it before regular courts. c. There must be ER-EE. d. ULP by employer i. Interference, restraint, coercion 1. Interference to the right of workers to self-organization. 2. Yellow-dog, violation of CBA, etc. ii. Refusal to Bargain Collectively 1. Concept of the Duty to Bargain Collectively = under the LC, a mutual obligation between the employer and union, etc. 2. Requires reasonable bargaining process. 3. Standards of collective bargaining: (1) mutual bargaining; (2) prompt expeditious bargaining; (3) good faith bargaining. 4. Who initiates CB? a. Union or Employer can initiate. 5. Union submits a CBA proposal, what then? 6. To submit a counter CBA proposal. 7. If the employer procastinates the submission of counter CBA, then that is an indication of refusal to bargain which is a favor of ULP. 8. The employer finally submits a counter CBA and he tells a union to take it or leave it (Boulwarism).
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The employer submits a counter CBA proposal; discusses matters that are offtangent. 10. Blue sky bargaining: beyond the capacity to give. 11. Employer sold stocks to dummy corporation; business operation transferred to another are a just to evade CB. 12. Can employers strike in the area? YES. Strikes/strike area includes run-away shops which is ULP iii. Discrimination – discrimination per se is not ULP but if its designed to discourage unionism; it is ULP. iv. Company unionism 1. Company-dominated union 2. Organized at the instance of the employer thru legal, economic support 3. It is an active union but later on became passive, inactive, worst, a dormant union because of legal, economic, psychological support. 4. Providing negotiation fees to union for the union to negotiate with the employer; 5. Union accepting negotiation fees. 6. Giving out testimonies before a judicial or quasi-judicial body. Employer disallowing an employee from participating in a certification election case. 7. If the contracting out is made to an independent contractor, it must not exceed more than 6 months, otherwise, ULP siya. 8. Flagrant or gross violation of the CBA 8) Are strikers entitled to economic benefits? NO (Gen Rule) a. Exceptions: 1) strikers were discriminatorily dismissed; 2) strikers did not strike but were illegally locked out; 3) strikers unconditionally offered to return to work was rejected by the employer.
