November 6, 2016
2:00 P.M. – 6:00 P.M.
2016 BAR EXAMINATIONS
2:00 P.M. – 6:00 P.M.
-I-
What are the
requisites o f a valid quitclaim? (5%)
-II-
Gregorio was hired as
an insurance underwriter by the Guaranteed Insurance Corporation (Guaranteed).
He does not receive any salary but solely relies on commissions earned for
every insurance policy approved by the company. He hires and pays his own secretary
but is provided free office space in the office of the company. He is, however,
required to meet a monthly quota of twenty (20) insurance policies, otherwise,
he may be terminated. He was made to agree to a Code of Conduct for
underwriters and is supervised by a Unit Manager.
[a] Is Gregorio an
employee of Guaranteed? Explain. (2.5%)
[b] Suppose Gregorio
is appointed as Unit Manager and assigned to supervise several underwriters. He
holds office in the company premises, receives an overriding commission on the
commissions of his underwriters, as well as a monthly allowance from the
company, and is supervised by a branch manager. He is governed by the Code of
Conduct for Unit Managers. Is he an employee of Guaranteed? Explain. (2.5%)
-III-
Inggo is a drama
talent hired on a per drama “participation basis” by DJN Radio Company. He
worked from 8:00 a.m. until 5:00 p.m., six days a week, on a gross rate of
P80.00 per script, earning an average of P20,000.00 per month. Inggo filed a
complaint before the Department of Labor and Employment (DOLE) against DJN
Radio for illegal deduction, non-payment of service incentive leave, and 13th
month pay, among others. On the basis of the complaint, the DOLE conducted a
plant level inspection.
The DOLE Regional
Director issued an order ruling that Inggo is an employee of DJN Radio, and
that Inggo is entitled to his monetary claims in the total amount of
P30,000.00. DJN Radio elevated the case to the Secretary of Labor who affirmed
the order. The case was brought to the Court of Appeals. The radio station
contended that there is no employer-employee relationship because it was the
drama directors and producers who paid, supervised, and disciplined him.
Moreover, it argued that the case falls under the jurisdiction of the NLRC and
not the DOLE because Inggo’s claim exceeded PS,000.00.
[a] May DOLE make a
prima facie determination of the existence of an employer-employee relationship
in the exercise of its visitorial and enforcement powers? (2.5%)
[b] If the DOLE finds
that there is an employee-employer relationship, does the case fall under the
jurisdiction of the Labor Arbiter considering that the claim of Inggo is more
than P5,000.00. Explain. (2.5%)
-IV-
Hagibis Motors
Corporation (Hagibis) has 500 regular employees in its car assembly plant. Due
to the Asian financial crisis, Hagibis experienced very low car sales resulting
to huge financial losses. It implemented several cost-cutting measures such as
cost reduction on use of office supplies, employment hiring freeze, prohibition
on representation and travel expenses, separation o f casuals and reduced
work week. As counsel of Hagibis, what are the measures the company should
undertake to implement a valid retrenchment? Explain. (5%)
-V-
Asia Union (Union) is
the certified bargaining agent of the rank-and-file employees of Asia Pacific
Hotel (Hotel).
The Union submitted
its Collective Bargaining Agreement (CBA) negotiation proposals to the Hotel.
Due to the bargaining deadlock, the Union, on December 20, 2014, filed a Notice
of Strike with the National Conciliation and Mediation Board (NCMB).
Consequently, the Union conducted a Strike Vote on January 14, 2015, when it
was approved.
The next day, waiters
who are members of the Union came out of the Union office sporting closely cropped
hair or cleanly shaven heads. The next day, all the male Union members came to
work sporting the same hair style. The Hotel prevented these workers from
entering the premises, claiming that they violated the company rule on Grooming
Standards.
On January 16, 2015,
the Union subsequently staged a picket outside the Hotel premises and prevented
other workers from entering the Hotel. The Union members blocked the ingress
and egress of customers and employees to the Hotel premises, which caused the
Hotel severe lack of manpower and forced the Hotel to temporarily cease
operations resulting to substantial losses.
On January 20, 2015,
the Hotel issued notices to Union members, preventively suspending them and
charging them with the following offenses: (1) illegal picket; (2) violation of
the company rule on Grooming Standards; (3) illegal strike; and (4) commission
of illegal acts during the illegal strike. The Hotel later terminated the
Union officials and members who participated in the strike. The Union denied it
engaged in an illegal strike and countered that the Hotel committed an unfair
labor practice (ULP) and a breach of the freedom of speech.
[a] Was the picketing
legal? Was the mass action ofthe Union officials and members an illegal strike?
Explain. (2.5%)
[b] Rule on the
allegations of ULP and violation of freedom of speech. Explain. (2.5%)
-VI-
Pedro, a bus driver
of Biyahe sa Langit Transport, was involved in a collision with a car, damaging
the bus. The manager accused him of being responsible for the damage and was
told to submit his written explanation within 48 hours. Pedro submitted his explanation
within the period. The day after, Pedro received a notice of termination
stating that he is dismissed for reckless driving resulting to damage to
company property, effective immediately. Pedro asks you, as his counsel, if the
company complied with the procedural due process with respect to dismissal of
employees.
[a] Explain the twin
notice and hearing rule. (2.5%)
[b] Did the Biyahe sa
Langit Transport comply with the prior procedural requirements for dismissal?
(2.5%)
-VII-
Forbes Country Club (Club)
owns a golf course and has 250 rank-and-file employees who are members of the
Forbes Country Club Union (Union). The Club has a CBA with the Union and one of
the stipulations is a Union Security Clause, which reads: “All regular
rank-and-file employees who are members of the union shall keep their
membership in good standing as a condition for their continued employment
during the lifetime of this agreement.”
Peter, Paul and Mary
were the Treasurer, Assistant Treasurer, and Budget Officer of the Union,
respectively. They were expelled by the Board of Directors of the Union for
malversation. The Union then demanded that the Club dismiss said officials
pursuant to the Union Security Clause that required maintenance of union
membership. The Club required the three officials to show cause in writing why
they should not be dismissed. Later, the Club called the three Union officials
for a conference regarding the charges against them. After considering the
evidence submitted by the parties and their written explanations, the Club
dismissed the erring officials. The dismissed officials sued the Club and the
Union for illegal dismissal because there was really no malversation based on
the documents presented and their dismissal from the Union was due to the fact
that they were organizing another union.
[a] Is the dismissal
of Peter, Paul and Mary by the Club valid? (2.5%)
[b] If the expulsion
by the Union was found by the Labor Arbiter to be baseless, is the Club liable
to Peter, Paul and Mary? Explain. (2.5%)
-VIII-
Differentiate
learnership from apprenticeship with respect to the period of training, type of
work, salary and qualifications. (5%)
-IX-
Zienna Corporation
(Zienna) informed the Department of Labor and Employment Regional Director of
the end of its operations. To carry out the cessation, Zienna sent a Letter
Request for Intervention to the NLRC for permission and guidance in effecting
payment of separation benefits for its fifty (50) terminated employees.
Each of the
terminated employees executed a Quitclaim and Release before Labor Arbiter
Nocomora, to whom the case was assigned. After the erstwhile employees received
their separation pay, the Labor Arbiter declared the labor dispute dismissed
with prejudice on the ground of settlement. Thereafter, Zienna sold all of its
assets to Zandra Company (Zandra), which in turn hired its own employees.
Nelle, one of the
fifty (50) terminated employees, filed a case for illegal dismissal against
Zienna. She argued that Zienna did not cease from operating since the
corporation subsists as Zandra. Nelle pointed out that aside from the two
companies having essentially the same equipment, the managers and owners of
Zandra and Zienna are likewise one and the same.
For its part, Zienna
countered that Nelle is barred from filing a complaint for illegal dismissal
against the corporation in view of her prior acceptance of separation pay.
Is Nelle correct in
claiming that she was illegally dismissed? (5%)
-X-
Lazaro, an engineer,
organized a union in Garantisado Construction Corporation (Garantisado) which
has 200 employees. He immediately filed a Petition for Certification Election,
attaching thereto the signatures of 70 employees. Garantisado vehemently
opposed the petition, alleging that 25 signatories are probationary employees,
while 5 are supervisors. It submitted the contracts of the 25 probationary
employees and the job description of the supervisors. It argued that if 30 is
deducted from 70, it gives a balance of 40 valid signatures which is way below
the minimum number of 50 signatories needed to meet the alleged 25%
requirement. If you are the Director of Labor Relations, will you approve the
holding of a Certification Election. Explain your answer. (5%)
-XI-
Dion is an Accounting
Supervisor in a trading company. He has rendered exemplary service to the
company for 20 years. His co-employee and kumpadre, Mac, called him over the
phone and requested him to punch his (Mac’s) daily time card as he (Mac) was
caught in a monstrous traffic jam. Dion acceded to Mac’s request but was later
caught by the Personnel Manager while punching. Mac’s time card. The company
terminated the employment of Dion on the ground of misconduct. Is the dismissal
valid and just? Explain.(5%)
-XII-
Amaya was employed as
a staff nurse by St. Francis Hospital (SFH) on July 8, 2014 on a probationary
status for six (6) months. Her probationary contract required, among others,
strict compliance with SFH’s Code of Discipline.
On October 16, 2014,
Dr. Ligaya, filed a Complaint with the SFH Board of Trustees against Amaya for
uttering slanderous remarks against the former. Attached to the complaint was a
letter of Minda, mother of a patient, who confirmed the following remarks
against Dr. Ligaya:
“Bakit si Dr. Ligaya
pa ang napili mong ‘pedia’ eh ang tanda- tanda na n’un? E makakalimutin na yun
x x x Alam mo ba, kahit wala namang diperensya yung baby, ipinapa-isolate nya?”
The SFH President
asks you, being the hospital’s counsel, which of these two (2) options is the
legal and proper way of terminating Amaya: a) terminate her for a just cause
under Article 288 of the Labor Code (Termination by Employer); or b) terminate
her for violating her probationary contract. Explain. (5%)
-XIII-
Matibay Shoe and
Repair Store, as added service to its customers, devoted a portion of its store
to a shoe shine stand. The shoe shine boys were tested for their skill before
being allowed to work and given ID cards. They were told to be present from the
opening of the store up to closing time and were· required to follow the company
rules on cleanliness and decorum. They bought their own shoe shine boxes,
polish, and rags. The boys were paid by their customers for their services but
the payment is coursed through the store’s cashier, who pays them before
closing time. They were not supervised in their work by any managerial employee
of the store but for a valid complaint by a customer or for violation of any
company rule, they can be refused admission to the store. Were the boys
employees of the store? Explain. (5%)
-XIV-
Tess, a seamstress at
Marikit Clothing Factory, became pregnant. Because of morning sickness, she
frequently absented herself from work and often came to the factory only four
(4) days a week. After two (2) months, the personnel manager told her that her
habitual absences rendered her practically useless to the company and, thus,
asked her to resign. She begged to be retained, citing her pregnancy as reason
for her absences. Tess asked for leave of absence but her request was denied.
She went on leave nevertheless. As a result, she was thus dismissed for going
on leave without permission of management.
Tess filed a
complaint for illegal dismissal. The company’s defense: she was legally
dismissed because of her numerous absences without leave and not because of her
pregnancy. On the other hand, Tess argues that her dismissal was an act of
discrimination, based as it was on her pregnancy which the company treated as a
disease. Whose position is meritorious-the company’s or Tess’? Explain. (5%)
-XV-
Jim is the holder of
a certificate of public convenience for a jeepney. He entered into a contract
of lease with Nick, whereby they agreed that the lease period is for one (1)
year unless sooner terminated by Jim for any of the causes laid down in the
contract. The rental is thirty thousand pesos (P30,000.00) monthly. All the
expenses for the repair of the jeepney, together with expenses for diesel, oil
and service, shall be for the account of Nick. Nick is required to make a
deposit of three (3) months to answer for the restoration of the vehicle to its
good operating condition when the contract ends. It is stipulated that Nick is
not an employee of Jim and he holds the latter free and harmless from all suits
or claims which may arise from the implementation of the contract. Nick has the
right to use the jeepney at any hour of the day provided it is operated on the
approved line o f operation.
After five (5) months
of the lease and payment of the rentals, Nick became delinquent in the payment
of the rentals for two (2) months. Jim, as authorized by the contract, sent a
letter of demand rescinding the contract and asked for the arrearages. Nick responded
by filing a complaint with the NLRC for illegal dismissal, claiming that the
contract is illegal and he was just forced by Jim to sign it so he can drive.
He claims he is really a driver of Jim on a boundary system and the reason he
was removed is because he failed to pay the complete daily boundary of one
thousand (P1,000.00) for 2 months due to the increase in the number of
tricycles.
[a] Jim files a
motion to dismiss the NLRC case on the ground that the regular court has
jurisdiction since the agreement is a lease contract. Rule on the motion and
explain. (2.5%)
[b] Assuming that
Nick is an employee of Jim, was Nick validly dismissed? (2.5%)
-XVI-
In a case for illegal
dismissal and non-payment of benefits, with prayer for Damages·, Apollo was
awarded the following: 1) P200,000.00 as back.wages; 2) P80,000.00 as unpaid
wages; 3) P20,000.00 as unpaid holiday pay; 4) PS,000.00 as unpaid service
incentive leave pay; 5) P50,000.00 as moral damages; and 6) Pl0,000.00 as
exemplary damages. Attorney’s fees of ten percent (10%) of all the amounts
covered by items 1 to 6 inclusive, plus interests of 6% per annum from the date
the same were unlawfully withheld, were also awarded.
[a] Robbie, the
employer, contests the award of attorney fees amounting to 10% on all the
amounts adjudged on the ground that Article 111 ofthe Labor Code authorizes
only 10% “of the amount of wages recovered”. Rule on the issue and explain.
(2.5%)
[b] Robbie likewise
questions the imposition of interests on the amounts in question because it was
not claimed by Apollo, and the Civil Code provision on interests does not apply
to a labor case. Rule on the issue and explain. (2.5%)
-XVII-
Baldo, a farm worker
on pakyaw basis, had been working on Dencio’s land by harvesting abaca and
coconut, processing copra, and clearing weeds from year to year starting
January 1993 up to his death in 2007. He worked continuously in the sense that
it was done for more than one harvesting season.
[a] Was Dencio
required to report Baldo for compulsory social security coverage under the SSS
law? Explain. (2.5%)
[b] What are the
liabilities of the employer who fails to report his employee for social
security coverage? Explain. (2.5%)
-XVIII-
Empire Brands
(Empire) contracted the services of Style Corporation (Style) for the marketing
and promotion of its clothing line. Under the contract, Style provided Empire
with Trade Merchandising Representatives (TMRs) whose services began on
September 15, 2004 and ended on June 6, 2007, when Empire terminated the
promotions contract with Style.
Empire then entered
into an agreement for manpower supply with Wave Human Resources (Wave). Wave
owns its condo office, owns equipment for the use by the TMRs, and has assets
amounting to Pl,000,000.00. Wave provided the supervisors who supervised the
TMRs, who, in tum, received orders from the Marketing Director of Empire. In
their agreement, the parties stipulated that Wave shall be liable for the wages
and salaries of its employees or workers, including benefits, and protection
due them, as well as remittance to the proper government entities of all
withholding taxes, Social Security Service, and Philhealth premiums, in
accordance with relevant laws.
As the TMRs wanted to
continue working at Empire, they submitted job applications as TMRs with Wave.
Consequently, Wave hired them for a term of five (5) months, or from June 7,
2007 to November 6, 2007, specifically to promote Empire’s products.
When the TMRs’
5-month contracts with Wave were about to expire, they sought renewal thereof, but
were refused. Their contracts with Wave were no longer renewed as Empire hired
another agency. This prompted them to file complaints for illegal dismissal,
regularization, non-payment of service incentive leave and 13th month pay
against Empire and Wave.
[a] Are the TMRs
employees of Empire? (2.5%)
[b] Were the TMRs illegally dismissed by Wave? (2.5%)
[b] Were the TMRs illegally dismissed by Wave? (2.5%)
-XIX-
Filmore Corporation
was ordered to pay P49 million to its employees by the Labor Arbiter. It
interposed an appeal by filing a Notice of Appeal and paid the corresponding
appeal fee. However, instead of filing the required appeal bond equivalent to
the total amount of the monetary award, Filmore filed a Motion to Reduce the
Appeal Bond to P4,000,000.00 but submitted a surety bond in the amount of P4.9
million. Filmore cited financial difficulties as justification for its
inability to post the appeal bond in full owing to the shutdown of its
operations. It submitted its audited financial statements showing a loss of P40
million in the previous year. To show its good faith, Filmore also filed
its Memorandum of Appeal.
The NLRC dismissed
the appeal for non-perfection on the ground that posting of an appeal bond
equivalent to the monetary award is indispensable for the perfection of the
appeal and the reduction of the appeal bond, absent any showing of meritorious
ground to justify the same, is not warranted. Is the dismissal ofthe appeal
correct? Explain. (5%)
-XX-
Mario Brothers,
plumbing works contractor, entered into an agreement with Axis Business Corporation
(Axis) for the plumbing works of its building under construction. Mario
Brothers engaged the services of Tristan, Arthur, and Jojo as plumber, pipe
fitter, and threader, respectively. These workers have worked for Mario
Brothers in numerous construction projects in the past but because of their
long relationship, they were never asked to sign contracts for each project. No
reports to government agencies were made regarding their work in the company.
During the
implementation of the works contract, Axis suffered financial difficulties and
was not able to pay Mario Brothers its past billings. As a result, the three
(3) employees were not paid their salaries for two (2) months and their 13th
month pay. Because Axis cannot pay, Mario Brothers cancelled the contract and
laid off Tristan, Arthur, and Jojo. The 3 employees sued Mario Brothers and
Axis for illegal dismissal, unpaid wages, and benefits.
[a] Mario Brothers
claims the 3 workers are project employees. It explains that the agreement is,
if the works contract is cancelled due to the fault of the client, the period
of employment is automatically terminated. Is the contractor correct? Explain.
(2.5%)
[b] Can Axis be made solidarily liable with
Mario Brothers to pay the unpaid wages and 13th month pay o f Tristan, Arthur,
and Jojo? Explain. (2.5%)
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