2013 BAR QUESTIONS AND ANSWERS

1. Jose and Erica, former sweethearts, both worked as sales representatives for
Magna, a multinational firm engaged in the manufacture and sale of
pharmaceutical products. Although, the couple had already broken off their
relationship, Jose continued to have special feelings for Erica.

One afternoon, Jose chanced upon Erica riding in the car of Paolo, a co-
employee and Erica’s ardent suitor; the two were on their way back to the office
from a sales call on Silver Drug, a major drug retailer. In a fit of extreme jealousy,
Jose rammed Paolo’s car, causing severe injuries to Paolo and Erica. Jose’s
flare up also caused heavy damage to the two company-owned cars they were
driving.

A. As a lawyer for Magna, advise the company on whether just and valid
grounds exist to dismiss Jose? (4%)

SUGGESTED ANSWER

Article 282 (e ) of the Labor Code talks of other analogous causes or those
which are susceptible of comparison to another in general or in specific
detail as a cause for termination of employment.

In one case, the Court considered theft committed against a co-employee

as a case analogous to serious misconduct, for which the penalty of
dismissal from service may be meted out to the erring employee (Cosmos
Bottling Corp v Fermin). Similarly, Jose’s offense perpetrated against his
co-employees Erica and Paolo, can be considered as a case analogous to
Serious Misconduct.

ALTERNATE ANSWER

The offense committed by Jose did not relate to the performance of his
duties.

For misconduct or improper behavior to be a just cause for dismissal, it

must be

a. Serious
b. Must relate to the performance of employee’s duties
c. Must show that the employee has become unfit to continue working for
the employer.
 On the basis of the foregoing guidelines, it can be concluded that Paolo
was not guilty of Serious Misconduct; Paolo was not performing official
work at the time of the incident (Lagrsas vs Bristol Mayers Squibb)

2. Gamma Company pays its regular employees P350.00 a day, and houses
them in a dormitory inside its factory compound in Manila. Gamma Company
also provides them with three full meals a day.

In the course of a routine inspection, a Department of Labor and Employment

(DOLE) Inspector noted that the worker’s pay is below the prescribed minimum
wage of P426.00 plus P30.00 allowance, and thus required Gamma Company to
pay wage differentials.

Gamma Company denies any liability; explaining that after the market value of
the company-provided board and lodging are added to the employees’ P350.00
cash daily wage, the employees’ effective daily rate would be way above the
minimum pay required by law. The company counsel further points out that the
employees are aware that their food and lodging form part of their salary, and
have long accepted the arrangement.

Is the company’s position legally correct?

SUGGESTED ANSWER
No, the following requisites were not complied with:

A) Proof that such facilities are customarily furnished by the trade

B) The provision of deductible facilities is voluntarily accepted by the
employee
C) The facilities are charged at the fair and reasonable value. Mere
availment is not sufficient to allow deduction from the employees
wages. (Mayon Hotel vs Adarna, 458 SCRA 609 (2005)

ALTERNATE ANSWER

No. Rule 78 Section 4 provides that there must be written authorization.

3. Inter- Garments Co., manufactures garments for export and requires its
employees to render overtime work ranging from two to three hours a day to
meet its clients’ deadlines. Since 2009 , it has been paying its employees on
overtime an additional 35% of their hourly rate for work rendered in excess of
their regular eight working hours.
 Due to the slowdown of its export business in 2012, Inter-Garments had to
reduce overtime work; at the same time, it adjusted the overtime rates so that
those who worked overtime were only paid in additional 25% instead of previous
35%. To replace the worker’s overtime rate loss, the company granted a one-
time 5% across-the-board wage increase.

Vigilant Union, the rank-and-file bargaining agent, charged the company with
Unfair Labor Practice on the ground that (1) no consultations had been made on
who would render overtime work; and (2) the unilateral overtime pay rate
reduction is a violation of Article 100 (entitled Prohibition Against Elimination or
Diminution of Benefits) of the Labor Code.

Is the union position meritorious? (8%)

4. Bobby, who was assigned as company branch accountant in Tarlac where his
family also lives, was dismissed by Theta Company after anomalies in the
company’s accounts were discovered in the branch. Bobby filed a complaint and
was ordered reinstated with full backwages after the Labor Arbiter found that he
had been denied due process because no investigation actually took place.

Theta Company appealed to the National Labor Relations Commission (NLRC)

and at the same time wrote Bobby, advising him to report to the main company
office in Makati where he would be reinstated pending appeal. Bobby refused to
comply with his new assignment because Makati is very far from Tarlac and he
cannot bring his family to live with him due to the higher cost of living in Makati.

A. Is Bobby’s reinstatement pending appeal legally correct? (4%)

SUGGESTED ANSWER

No, it is not legally correct. The transfer of an employee ordinarily lies

within the ambit of management prerogative. But like other rights, there are
limits thereto. This management prerogative to transfer personnel must be
exercised without grave abuse of discretion, bearing in mind the basic
element of justice and fair play. Thus, the transfer of Bobby from Tarlac to
Makati must be done in good faith, and it must not be unreasonable,
inconvenient or prejudicial to the employee. For another, the reinstatement
of Bobby ought to be his formed position, much akin to return to work
order, i.e., restore the status quo in the work place (Composite Enterprises
v Capamaroso, 529 SCRA 470 (2007)

5. Cris filed a complaint for illegal dismissal against Baker Company. The Labor
Arbiter dismissed the complaint but awarded Cris financial assistance. Only the
 company appealed from the Labor Arbiter’s ruling. It confined its appeal solely to
the question of whether financial assistance could be awarded. The NLRC,
instead of ruling solely on the appealed issue, fully reversed the Labor Arbiter’s
decision; it found Baker Company liable for illegal dismissal and ordered the
payment of separation pay and full backwages.

Through a petition for certiorari under Rule 65 of the Rules of Court, Baker
Company challenged the validity of the NLRC ruling. It argued that the NLRC
acted with grave abuse of discretion when it ruled on the illegal dismissal issue,
when the only issue brought on appeal was the legal propriety of the financial
assistance award.

Cris countered that under Article 218 (c ) of the Labor Code, the NLRC has the
authority to “correct, amend, or waive any error, defect or irregularity whether in
substance or in form” in the exercise of its appellate jurisdiction.

Decide the case. (8%)

SUGGESTED ANSWER
The review power of the NLRC in perfected appeals is limited only to those
issues raised on appeal. Hence, it is grave abuse of discretion for the NLRC
to resolve issues not raised on appeal (United Placement International vs
NLRC, 221 SCRA 445 (1993)).

6. Because of the stress in caring for her four (4) growing children, Tammy suffered
a miscarriage late in her pregnancy and had to undergo an operation. In the
course of the operation, her obstetrician further discovered a suspicious-looking
mass that required the subsequent removal of her uterus (hysterectomy). After
surgery, her physician advised Tammy to be on full bed rest for six (6) weeks.
Meanwhile, the biopsy of the sample tissue taken from the mass in Tammy’s
uterus showed a beginning malignancy that required an immediate series of
chemotherapy once a week for four (4) weeks.

A. What can Roger-Tammy’s 2nd husband and the father of her two (2)
younger children – claim as benefits under the circumstances? (4%)
B. What benefits can Tammy claim under existing social legislation? (4%)

SUGGESTED ANSWER
 A. Under R.A. No. 8187 or the Paternity Leave Act of 1996, Roger can claim
paternity leave of seven (7) days with full pay if he is lawfully married to
Tammy and cohabiting with her at the time of the miscarriage.
B. Assuming that she is employed, Tammy is entitled to a special leave
benefit of two months with full pay (Gynecological Leave )pursuant to
R.A. No. 9710 or the Magna Carta of Women. She can also claim
Sickness Leave benefit in accordance with the SSS law.

7. Philippine Electric Company is engaged in electric power generation and

distribution. It is unionized company with Kilusang Makatao as the union
representing its rank-and-file employees. During the negotiations for their expired
collective bargaining agreement (CBA), the parties duly served their proposals
and counter-proposals on one another. The parties, however, failed to discuss
the merits of their proposals and counter-proposals in any formal negotiation
meeting because their talks already bogged down on the negotiation ground
rules, i.e. on the question of how they would conduct their negotiations,
particularly on whether to consider retirement as a negotiable issue.

Because of the continued impasse, the union went on strike. The Secretary of
Labor and Employment immediately assumed jurisdiction over the dispute to
avert widespread electric power interruption in the country. After extensive
discussions and the filing of position papers (before the National Conciliation and
Mediation Board and before the Secretary himself) on the validity of the union’s
strike and on the wage and other economic issues (including the retirement
issue), the DOLE Secretary ruled on the validity of the strike and on the disputed
CBA issued, and ordered the parties to execute a CBA based on his rulings .

Did the Secretary of Labor exceed his jurisdiction when he proceeded to

rule on the parties’ CBA positions even though the parties did not fully
negotiate on their own? (8%)

8. After thirty (30) years of service, Beta Company compulsorily retired Albert at age
65 pursuant to the company’s Retirement Plan. Albert was duly paid his full
retirement benefits of one (1) month pay for every year of service under the Plan.
Thereafter, out of compassion, the company allowed Albert to continue working
and paid him his old monthly salary rate, but without the allowances that he used
to enjoy.

After five (5) years under this arrangement, the company finally severed all
employment relations with Albert; he was declared fully retired in a fitting
ceremony but the company did not give him any further retirement benefits. Abet
 thought this treatment unfair as he had rendered full service at his usual hours in
the past five (5) years. Thus, he filed a complaint for the allowances that were not
paid to him, and for retirement benefits for his additional five (5) working years,
based either on the Company’s Retirement Plan or the Retirement Pay Law,
whichever is applicable.

A) After Albert’s retirement at the age of 65, should he be considered a

regular employee entitled to all his previous salaries and benefits when
the company allowed him to continue working? (4%)

SUGGESTED ANSWER

He would be considered a contractual employee, not a regular employee. His

salaries and benefits will be in accordance with the stipulation of the contract
he signed with the company.

The present case is similar in the case decided by the Supreme Court
(Januaria Rivera vs United Laboratories) where the Court held that the
company, in employing a retired employee whose knowledge, experience and
expertise the company recognized, as an employee or as a consultant, is not
illegality; on the contrary, it is a recognized practice in this country.

9. Pablo works as a driver at the National Tire Company (NTC). He is member of of

the Malayang Samahan ng Manggagawa sa NTC, the exclusive rank-and-file
collective bargaining representative in the company. The Union has the CBA with
NTC which contains a union security and a check off clause. The union security
clause contains maintenance of membership provision that requires all members
of the bargaining unit to maintain their membership in good standing with the
union during the term of the CBA under pain of dismissal. The check-off clause
on the other hand authorizes the company to deduct from union members’
salaries defined amounts of union dues and other fees. Pablo refused to issue an
authorization to the company for the check-off his dues, maintaining that he will
personally remit his dues to the union.

Can the union charge Pablo with disloyalty for refusing to allow the check
off his union dues and, on this basis, ask the company to dismiss him from
employment? (4%)

SUGGESTED ANSWER
 No, the “check off clause” in the CBA will not suffice. The law prohibits
interference with the disposition of one’s salary. The law requires
“individual written authorization” to deduct union dues from Pablo’s
salaries. For as long as he pays union dues, Pablo cannot be terminated
from employment under the union security clause. As a matter of fact, filing
a complaint against the union before the Department of Labor forcible
deduction from salaries does not constitute acts of disloyalty against the
union (Tolentino v Angeles, 52 O.G 4262)

10. For ten (10) separate but consecutive yearly contracts, Cesar has been deployed
as an able-bodied seaman by Merritt Shipping, through its local agent, Ace
Maritime Services (agency), in accordance with the 2000 Philippine Overseas
Employment Administration Standard Employment Contract (2000 POEA-SEC).
Cesar’s employment was also covered by a CBA between the union, AMOSUP,
and Meritt Shipping. Both the 2000 POEA-SEC and the CBA commonly provide
the same mode and procedures for claiming disability benefits. Cesar’s last
contract (for nine months) expired on July 15, 2013.

Cesar disembarked from the vessel M/V Seven Seas on July 16, 2013 as a
seaman on “finished contract”. He immediately reported to the agency and
complained that he had been experiencing spells of dizziness, nausea, general
weakness, and difficulty in breathing. The agency referred him to Dr. Sales, a
cardio-pulmonary specialist, who examined and treated him; advised him to take
a complete rest for a while; gave him medications; and declared him fit to resume
work as seaman.

After a month, Cesar went back to the agency to ask for re-deployment. The
agency rejected his application. Cesar responded by demanding total disability
benefits based on the ailments that he developed and suffered while on board
Merritt Shipping vessels. The claim was based on the certification of his
physician (internist Dr. Reyes) that he could no longer undertake sea duties
because of the hypertension and diabetes that affected him while serving on
Merritt Shipping vessels in the last 10 years. Rejected once again, Cesar filed a
complaint for illegal dismissal and the payment of total permanent disability
benefits against the agency and its principal.

Assume that you are the Labor Arbiter deciding the case.

Identify the facts and issues you would consider material in resolving the
illegal dismissal and disability complaint. Explain your choices and their
materiality, and resolve the case. (8%)
SUGGESTED ANSWER

1. Does the Labor Arbiter have jurisdiction to decide the case?

2. Did Cesar submit to a post-employment examination within 3 days upon
his return? This is mandatory requirement; otherwise, Cesar will forfeit
his right to claim benefits.
3. Is Dr Sales the company-designated physician? The company
designated physician is the one who initially determines
compensability.
4. Was Cesar assisted by Dr. Sales (if he is the company physician) within
120 days?
5. If the 120 days was exercised and no declaration was made as to
Cesar’s disability, was this extended to 240 days because Cesar
required further medical treatment?
6. Was the 240 days exceeded and still no final decision was reached as to
Cesar’s disability? If so, Cesar is deemed entitled to permanent total
disability benefits.
7. If the company’s physician and Cesar’s physician cannot agree, was a
third physician designated to determine the true nature and extent of
the disability. The third physician’s finding under the law is final and
conclusive.
8. In the matter of the complaint for illegal dismissal: There is none
because Csar disembarked on a “finished contract”.
9. Seafarers are contractual employees, for a fixed term, governed by the
contract they sign; an exception to Article 280 (now Article 286) of the
Labor Code. Hence, the complaint for illegal dismissal will not prosper.

MULTIPLE CHOICE QUESTIONS

1. The parties to a labor dispute can validly submit to voluntary arbitration

____________. (1%)

A) Any disputed issue they may agree to voluntary arbitrate

B) Only matters that do not fall within the exclusive jurisdiction of the
Labor Arbiter
C) Any disputed issue but only after conciliation at the National
Conciliation and Mediation Board fails
D) Any disputed issue provided that the Labor Arbiter has not assumed
jurisdiction over the case on compulsory arbitration
 E) Only matters relating to the interpretation or implementation of a
collective bargaining agreement
2. When there is no recognized collective bargaining agent, can a
legitimate labor organization validity declare a strike against the
employer? (1%)

A) Yes because the use of strike is guarantee by the Constitution and cannot
be denied to any group of employees.
B) No, because only an exclusive bargaining agent may declare a strike the
employer.
C) Yes because the right to strike is a basic human right that the country’s
international agreements and the international Labor Organization
recognize
D) Yes but only in case of unfamiliar labor practice
E) No in the absence of a recognized bargaining agent, the workers recourse
is to file a case before the Department of Labor and Employment

3. Mr. Del Carmen, unsure of his foray into business (messengerial service
catering purely to law firms) would succeed but intending to go long-term if
he hurdles the first year, opted to open his operations with one year contracts
with two law firms although he also accepts messengerial service request
from other firms as their orders come. He started with one permanent
secretary and six (6) on a one-year fixed-term, contract.

Is the agreement legal from the perspective of labor standards?

A) No, because the agreement will circumvent workers right to

security of tenure
B) No. If allowed, the agreement will serve as starting point in weakening
of the security of tenure guarantee.
C) Yes, if the messenger is hired through a contractor.
D) Yes, because the business is temporary and contracted undertaking is
specific and time-bound.
E) No, because the fixed term provided is invalid.

4. Chito was illegally dismissed by DEF Corp. effective at the close of business
hours of December 29, 2009.

4.1 He can file a complaint for illegal dismissal without any legal bar within
___________ . (1%)

A) three (3) years

 B) four (4) years
C) five (5) years
D) six (6) years
E) ten (10) years

4.2 if he has money claims against DEF Corp. he can make the claim
without any legal bar within __________. (1%)

A) three (3) years

B) four (4) years
C) five (5) years
D) six (6) years
E) ten (10) years

5. After invariably struggling to stay financially afloat for a year, LMN Corp
finally gave up and closed down its operation after its major creditors filed a
petition for LMN’s insolvency and liquidation.

In this situation, LMN’s employees are entitled to ________ as separation

pay. (1%)

A) one-half month pay for every year of service

B) one month pay for every year of service
C) one-half month pay
D) one month pay
E) no separation pay at all

6. At the age of 65 and after 20 years of sewing work at home on a piece rate
basis for PQR Garments, a manufacturer-explorer to Hongkong, Aling Nena
decided it was time to retire and to just take it easy.

Is she entitled to retirement pay from PQR? (1%)

A) Yes, but only to one month pay.

B) No, because she was not a regular employee.
C) Yes, at the same rate as regular employee
D) No, because retirement pay is deemed included in her contracted per
piece pay
E) No, because homeworkers are not entitled to retirement pay.

7. The minimum wage prescribed by law for persons with disability is

___________ . (1%)
 A) 50% of the applicable minimum wage
B) 75% of the applicable minimum wage
C) 100% of the applicable minimum wage
D) the wage that the parties agree upon, depending on the capability of the
disabled.
E) the wage that the parties agree upon, depending on the capability of the
disabled, but not less than 50% of the applicable minimum wage

8. What is the financial incentive , if any, granted by law to SPQ Garments whose
cutters and sewers in its garments-for-export operations are 80% staffed by deaf
and deaf-mute workers? (1%)

A) Additional deduction from its gross income equivalent to 25% of

amount paid as salaries to persons with disability.
B) Additional deduction from its gross income equivalent to 50% of the direct
costs of the construction of facilities for the use of persons with disability
C) Additional deduction from its net taxable income equivalent to 5% of its total
payroll
D) Exemption from real property tax for one (1) year of the property where
facilities for persons with disability have been constructed.
E) The annual deduction under (A), plus a one-time deduction under (B).

9. Mr. Ortanez has been in the building construction business for several years.
He asks you, as his new labor counsel, for the rules he must observe in
considering regular employment in the construction industry.

You clarify that an employee, project or non-project, will acquire regular status if
_________. (1%)

A) He has been continuously employed for more than one year

B) His contract of employment has been repeatedly renewed, from project-to-
project, for several years
C) He performs work necessary and desirable to the business, without a
fixed period and without reference to any specific project or undertaking
D) He has lived up to the company’s regularization standards
E) All of the above.

10. Samahang Tunay , a union of rank-and-file employees lost in a certification

election at Solam Company and has become minority union. The majority union
now has a signed CBA with the company and the agreement contains a
maintenance of membership clause.

What can Samahang Tunay still do within the company as a union

considering that it still has members who continue to profess continued
loyalty to it? (1%)
 A) It can still represent these members in grievance committee meetings
B) It can collect agency fees from its members within the bargaining unit
C) It can still demand meetings with the company on company time
D) As a legitimate labor organization, it can continue to represent its
members on non-CBA related matters
E) None of the above
F) All of the above

11. The members of the administrative staff of Zeta, a construction company, enjoy
ten (10) days of vacation leave with pay and ten (10) days of sick leave with pay,
annually. The worker’s union, Bukluran, demands that Zeta grant its workers
service incentive leave of five (5) days in compliance with the Labor Code.

Is the union demand meritorious? (1%)

A) Yes, because non-compliance with the law will result in the diminution of
employee benefits.
B) Yes, because service incentive leave is a benefit expressly provided under
and required by the Labor Code
C) No, because Zeta already complies with the law.
D) No, because service incentive leave is a Labor Code benefit that does not
apply in the construction industry
E) Yes, because Labor Code benefits are separate from those voluntarily
granted by the company.

12. Upon the expiration of the first three (3) years of their CBA, the union and the
company commenced negotiations. The union demanded that the company
continue to honor their 30-day union leave benefit under the CBA. The company
refused on the ground that the CBA had already expired, and the union had
already consumed their union leave under the CBA.

Who is correct. (1%)

A) The company is correct because the CBA has expired; hence, it is no longer
bound to provide union leave.
B) The company is correct because the union has already consumed the allotted
union lave under the expired CBA.
C) The union is correct because it is still the bargaining representative for the
next two (2) years.
D) The union is correct because union leaves are part of the economic
terms that continue to govern until new terms are agreed upon.
E) They are both wrong.
13. Hector, a topnotch Human Resource Specialist who had worked in multinational
forms both in the Philippines and overseas, was recruited by ABC Corp.,
because of his impressive credentials. In the course of Hector’s employment, the
company management frequently did not follow his recommendations and he felt
offended by this constant rebuff.

To obtain a legal opinion regarding his options, Hector sent an e-mail to ABC’s
retained counsel, requesting for advice on whether the grant by the company of
separation pay to his resigned colleagues has already ripened into a company
practice, ad whether he can similarly avail of this benefit if he resigns from his
job.

As the company’s retained legal counsel, how will you respond to Hector?
(1%)

A) I would advise him to write management directly and inquire about the
benefits he can expect if he resigns.
B) I would advise him that the previous grant of separation pay to his colleagues
cannot be considered a company practice because several other employees
had resigned and were not given separation pay.
C) I would advise him to ask for separation pay, not on account of company
practice, but on the basis of discrimination as he is similarly situated as the
two resigned department heads who were paid their separation pay.
D) I would not give him any legal advice because he is not my client
E) I would maintain that his question involves a policy matter beyond the
competence of a legal counsel to give.

14. Aleta Quiros was a faculty member at BM Institute, a private educational

institution. She was hired on a year-to-year basis under the probationary
employment period provision of the Manual of Regulations for Private Schools.
The terms and conditions of her engagement were defined under her renewable
yearly contract.

For reasons of its own, BM Institute no longer wanted to continue with Aleta’s
teaching services. Thus, after the contract for her second year expired, BM
Institute advised Aleta that her contract would no longer be renewed. This advice
prompted Aleta to file a complaint for illegal dismissal against BM Institute.

Will the complaint prosper? (1%)

 A) Yes, because no just or authorized cause existed for the termination of
her probationary employment.
B) Yes, because under the Labor Code, Aleta became a regular employee after
6 months and she may now only be dismissed for cause.
C) No, because there was no dismissal to speak of. Her employment was
automatically terminated upon the expiration of her year-to-year fixed term
employment.
D) No, because BM Institute may dismiss its faculty members at will in the
exercise of its academic freedom.
E) No, because Aleta was still on probationary employment.

15. Robert, an employee of ABC Company, is married to Wanda. One day, Wanda
visited the company office with her three (3) emaciated minor children, and
narrated to the Manager that Robert had been squandering his earning on his
mistress, leaving only a paltry sum for the support of their children. Wanda
tearfuly leaded with the Manager to let her have one half of Robert’s pay every
payday to ensure that her children would at least have food on the table. To
support her plea, Wanda presented a Kasulatan signed by Robert giving her one
half of his salary, on the condition that she would not complain if he stayed with
his mistress on weekends.

If you were the Manager, would you release one half of Robert’s salary to
Wanda? (1%)

A) No, because an employer is prohibited from interfering with the

freedom of its employees to dispose of their wages.
B) Yes, because of Robert’s signed authorization to give Wanda one half of his
salary
C) No, because there is no written authorization for ABC Company to
release Robert’s salary to Wanda
D) Yes, because it is Robert’s duty to financially support his minor children
E) No. because Robert’s Kasulatan is based on an illegal consideration and is
of doubtful validity.

16. Ricardo operated a successful Makati seafood restaurant patronized by a large

clientele base for its superb cuisine and impeccable service. Ricardo charged its
clients a 10% service charge and distributed 85% of the collection equally among
its rank-and-file employees, 10% among managerial employees, and 5% as
reserve for losses and breakages. Because of the huge volume of sales, the
employees received sizeable shares in the collected service charges.
As part of his business development efforts, Ricardo opened a branch in Cebu
where he maintained the same practice in the collection and distribution of
service charges. The Cebu branch, however, did not attract the forecasted
clientele; hence, the Cebu employees received lesser service charge benefits
than those enjoyed by the Makati-based employees. As a result, the Cebu
branch employees demanded equalization of benefits and filed a case with the
NLRC for discrimination when Ricardo refused their demand.

16.1 Will the case prosper? (1%)

A) Yes, because the employees are not receiving equal treatment in the
distribution of service charge benefits
B) Yes, because the law provides that the 85% employees’ share in the service
charge collection should be equally divided among all the employees, in this
case, among the Cebu and Makati employees alike.
C) No, because the employees in Makati are not similarly situated as the Cebu
employees with respect to cost of living and conditions of work.
D) No, because the service charge benefit attaches to the outlet where
service charges are earned and should be distributed exclusively
among the employees providing service in the outlet.
E) No, because the market and the clientele the two branches are serving, are
different.

16.2 In order to improve the Cebu service and sales, Ricardo decided to assign
some of its Makati-based employees to Cebu to train Cebu employees and
expose them to Makati standard of service. A chef and three waiters were
assigned to Cebu for the task. While in Cebu, the assigned personnel share
in the Cebu service charge collection and this received service charge
benefits than what they were receiving in Makati.

If you were the lawyer for the assigned personnel, what would you
advice them to do? (1%)

A) I would advise them to file a complaint for unlawful diminution of

service charge benefits and for payment of differentials
B) I would advise them to file a complaint for illegal transfer because work
in Cebu is highly prejudicial to them in terms of convenience and service
charge benefits
C) I would advise them to file a complaint for discrimination in the grant of
service charge benefits
D) I would advise them to accept their Cebu training assignment as an
exercise of the company’s management prerogative
 E) I would advise them to demand the continuation of their Makati-based
benefits and to file a complaint under (B) above if the demand is not
heeded.

17. Constant Builders, an independent contractor, was charged with illegal dismissal
and non-payment of wages and benefits of ten dismissed employees. The
complainants impleaded as co-respondent Able Company, Constant Builder’s
principal in the construction of Able’s office building. The complaint demanded
that Constant and Able be held solidarily liable for the payment of their
backwages, separation pay, and all their unpaid wages and benefits.

If the Labor Arbiter rules in favor of the complainants, choose the

statement that best describes the extent of the liabilities of the Constant
and Able. (1%)

A) Constant and Able should be held solidarily liable for the unpaid wages
and benefits, as well as backwages and separation pay, based on Article
109 of the Labor Code which provides that, “every employer or indirect
employer shall be held responsible with his contractor or subcontractor
for any violation of any provision of this Code.”
B) Constant and Able should be held solidarily liable for the unpaid wages and
benefits, and should order Constant, as the workers’ direct employer, to be
solely liable for the backwages and separation pay.
C) Constant and Able should be held solidarily liable for the unpaid wages and
benefits and the backwages since these pertain to labor standard benefits for
which the employer and contractor are liable under the law, while Constant
alone – as the actual employer –should be ordered to pay the separation pay
D) Constant and Able should be held solidarily liable for the unpaid wages and
benefits, and Constant should be held liable for their backwages and
separation pay unless Able is shown to have participated with malice or bad
faith in the workers’ dismissal, in which case both should be held solidarily
liable.
E) The above statements are all inaccurate.

18. The Pinagbuklod union filed a Petition for Certification Election, alleging that it
was a legitimate labor organization of the rank-and-file employees of Delta
Company. On Delta’s motion, the Med Arbiter dismissed the Petition, based on
the finding that Pinagbuklod was not a legitimate labor union and had no legal
personality to file a Petition for Certification Election because its membership was
a mixture of rank-and-file and supervisory employees.
Is the dismissal of the Petition for Certification Eection by the Med Arbiter
proper? (1%)

A) Yes, because Article 245 of the Labor Code prohibits supervisory employees
from joining the union of the rank and file employees and provides that a
union representing both rank and file and supervisory employees as members
is not a legitimate labor organization
B) No, because the grounds for the dismissal of a petition for certification
election do not include mixed membership in one union
C) No, because a final order of cancellation of union registration is required
before a petition for certification election may be dismissed on the ground of
lack of legal personality of the union
D) No. because Delta Company did not have the legal personality to
participate in the certification election proceedings and to file a motion
to dismiss based on the legitimacy status of the petitioning union.