3. CONSTITUTION
STATE POLICY
.
Section 18. The State affirms labor a primary
social economic force. It shall protect the
rights of workers and promote their welfare.
4. CONSTITUTION
Article Xlll – Labor
Section 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. They
shall be entitled to security of tenure, humane conditions of work,
and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as
may be provided by law.
5. CONSTITUTION
Continuation …… Article Xlll – Labor
The State shall promote the principle of shared responsibility
between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation, and
shall enforce their mutual compliance therewith to foster industrial
peace.
The State shall regulate the relations between workers and
employers, recognizing the right of labor to its just share in the
fruits of production and the right of enterprises to reasonable
returns to investments, and to expansion and growth.
6. LABOR CODE OF THE PHILIPPINES,
as amended
.
ARTICLE 3. Declaration of basic policy.
The State shall afford protection to labor,
promote full employment, ensure equal work
opportunities regardless of sex, race or creed and
regulate the relations between workers and
employers. The State shall assure the rights of
workers to self-organization, collective bargaining,
security of tenure, and just and humane conditions
of work.
7. LABOR CODE OF THE PHILIPPINES,
as amended
ARTICLE 4. Construction in favor of
labor.
All doubts in the implementation and
interpretation of the provisions of this
Code, including its implementing rules
and regulations, shall be resolved in favor
of labor.
.
8. A CONTRACT IS A MEETING OF MINDS
BETWEEN TWO PERSONS WHEREBY
ONE BINDS HIMSELF, WITH RESPECT
TO THE OTHER, TO GIVE SOMETHING
OR TO RENDER SOME SERVICE. (ARTICLE
1305 CIVIL CODE OF THE PHIL)
CONTRACT
9. OBLIGATIONS ARISING FROM
CONTERACTS HAVE THE FORCE OF
LAW BETWEEN THE CONTRACTING
PARTIES AND SHOULD BE COMPLIED
WITH IN GOOD FAITH. ( ARTICLE 1159 CIVIL CODE OF
THE PHILIPPINES)
OBLIGATION
10. THERE MUST BE OFFER AND ACCEPTANCE. there must a clear offer and
clear acceptance for a contract to be binding.
CONSIDERATION is the price paid by one party for the promise of the other
THE CAPACITY TO CONTRACT – parties to the contract must be over 18
years, of sound mind.
THERE MUST BE NO FORCE, MISREPRESENTATION OR FRAUD.
persons should not be forced to sign. a fraud may involve forging someone’s
signature.
THERE MUST BE AN OBVIOUS INTENTION TO CREATE LEGAL
RELATIONS. this is based on the actions of the parties e.g. offer, acceptance
and consideration.
A CONTRACT MUST BE LEGAL- thus, agreements made between parties
concerning illegal drugs and any other illegal activity is not a contract.
CHARACTERISTICS OF A CONTRACT
12. Employment contract
ESTABLISHING EXISTENCE OF ER-EE
RELATIONSHIP
This is the starting point for the application of the
Philippine Labor Code. It refers to the consent of both
the employer and the employee whereby the latter
agrees to provide services to the former in
consideration of payment of salary or wage.
13. Employment contract – EMPLOYER and EMPLOYEE
The contract shall be in writing and shall include the
following:
1) Specific description of job, work or service;
2) Place of work and terms and conditions of
employment, including a statement of wage rate
applicable to the individual contractual employee; and
3) The term and duration of employment, which shall be
coextensive with the contract of the principal and
subcontractor, or with the specific phase for which the
contractual employee is engaged
13
EMPLOYMENT CONTRACT
14. It is clear that seafarers are considered contractual
employees. They can not be considered as regular
employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign every
time they are rehired and their employment is terminated
when the contract expires. Their employment is
contractually fixed for a certain period of time. They fall
under the exception of Article 280 whose employment has
been fixed for a specific project or undertaking the
completion or termination of which has been determined at
the time of 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. (MILLARES v
NLRC 14
Employment status of a seafarer
15. In the Contract of Employment entered into with private
respondent, petitioners covenanted strict and faithful
compliance with the terms and conditions of the Standard
Employment Contract approved by the
POEA/DOLE which provides:
1. The employment of the seaman shall cease upon
expiration of the contract period indicated in the Crew
Contract unless the Master and the Seaman, by mutual
consent, in writing agree to an early termination . . . .
15
Employment contract
16. Clearly, under the foregoing, the employment of a Filipino
seaman may be terminated prior to the expiration of the
stipulated period provided that the master and the
seaman (a) mutually consent thereto and (b) reduce their
consent in writing.
(marsaman v nlrc/ CAJERAS G.R. No. 127195 , 25
August 1999
16
Employment contract
17. Whether employed locally or overseas, all Filipino
workers enjoy the protective mantle of Philippine labor
and social legislation, contract stipulations to the contrary
notwithstanding. This pronouncement is in keeping with
the basic public policy of the State to afford protection to
labor, promote full employment, ensure equal work
opportunities regardless of sex, race or creed, and
regulate the relations between workers and employers.
PNB vs CABANSAG, G.R. No. 157010 , 21 June 2005
17
Employment contract
18. REPATRIATION. If the vessel is outside the Philippines
upon the expiration of the contract, the seafarer shall
continue his service on board until the vessel's arrival at
a convenient port and/or after arrival of the replacement
crew, provided that, in any case, the continuance of such
service shall not exceed three months. The seafarer shall
be entitled to earned wages and benefits as provided in
his contract.
UNICA vs ANSCOR SWIRE SHIP MANAGEMENT
CORPORATION G.R. No. 184318 , 12 Feb. 2014
18
EMPLOYMENT CONTRACT
19. Clearly, the agency and Modern Metal committed a
prohibited practice and engaged in illegal recruitment
under the law. Article 34 of the Labor Code provides:
Art. 34. Prohibited Practices. It shall be unlawful for any
individual, entity, licensee, or holder of authority:
x x x x
(i) To substitute or alter employment contracts approved
and verified by the Department of Labor from the time of
actual signing thereof by the parties up to and including
the periods of expiration of the same without the approval
of the Secretary of Labor. 19
Alteration of an employment contract
20. Further, Article 38 of the Labor Code, as amended by
R.A. 8042, defined "illegal recruitment" to include the
following act:
(i) To substitute or alter to the prejudice of the worker,
employment contracts approved and verified by the
Department of Labor and Employment from the time of
actual signing thereof by the parties up to and including
the period of the expiration of the same without the
approval of the Department of Labor and Employment.
PERT/CPM MANPOWER EXPONENT CO.vs VINUYA,
et.al G.R. No. 197528 ,05 September 2012
20
Alteration of an employment contract
21. RIGHTS OF EMPLOYEE
1.Just and humane condition of work
2.Living wage/minimum wage
3.Hours of work
4. Days of rest
5.Freedom of Association/organization
6.Social Security Protection
7.Freedom of religion or belief
8.Freedom of expression
9.Access to justice and remedies
10. Security of Tenure
22. A. SECURITY OF TENURE
Refers to the right of an employee to keep his job
and not to be terminated except only for causes
allowed under the law.
security of tenure refers to the right of an employee
not to be terminated from employment unless
his/her termination is for a just and authorized
cause and effected after compliance with due
process of law.
23. CONDITIONS FOR THE RIGHT TO
SECURITY OF TENURE TO APPLY
Existence of employer-employee relationship
Just and authorized causes
Due process – is the right to be heard.
26. 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.
26
RESIGNATION: CONCEPT
27. . An employee voluntarily resigns when he finds
himself in a situation where he believes that personal
reasons cannot be sacrificed in favor of the exigency
of the service; thus, he has no other choice but to
disassociate himself from his employment.
27
RESIGNATION : CONCEPT
28. Records show that upon his repatriation from Taiwan,
respondent immediately went to petitioner’s office and
confronted its representative, Lorenza Ching, about the
assignment given to him which was contrary to the agreed
position of caretaker, for which he specifically applied. He
demanded that he be reimbursed the P30,000 he paid as
downpayment. When refused, he lodged a complaint with the
POEA. He also immediately filed a complaint for illegal dismissal
before Labor Arbiter Cresencio R. Iniego, upon his arrival in his
hometown, indicating that respondent did not voluntarily resign,
but was forced to resign, which was tantamount to a
dismissal.11 Petitioner did not refute respondent’s contentions
regarding these incidents. Further, it failed to prove the legality of
the dismissal, despite the fact that the burden of proof lies on the
employment and recruitment agency. Thus, the presumption
stands to the effect that respondent was illegally dismissed by
his employer.
28
RESIGNATION : CONCEPT
ATHENA MANPOWER V VILLANOS G.R. 151303 , 15 APRIL 2005,
29. In case of termination of overseas employment without
just, valid or authorized cause as defined by law or
contract, the worker shall be entitled to the full
reimbursement of his placement fee with interest at twelve
percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever
is less.
29
Section 10 of R.A. No. 8042, or The Migrant
Workers and Overseas Filipinos Act of 1995,
30. In case of termination of overseas employment without
just, valid or authorized cause as defined by law or
contract, the worker shall be entitled to the full
reimbursement of his placement fee with interest at twelve
percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever
is less.
30
Section 10 of R.A. No. 8042, or The Migrant
Workers and Overseas Filipinos Act of 1995,
31. JUST CAUSE – refers to a wrongdoing committed
by the employee on the basis of which the
aggrieved party may terminate the employer-
employee relationship.
AUTHORIZED CAUSE - refers to a cause brought
about by changing economic or business
conditions of the employer.
31
TERMINATION BY
EMPLOYER
32. Furthermore, Morales was not accorded due
process. Under Article 277(b) of the Labor Code,
the employer must send the employee who is
about to be terminated, a written notice stating the
cause/s for termination and must give the
employee the opportunity to be heard and to
defend himself. There was no showing that Al
Sandos warned Morales of her alleged poor
performance. Likewise, Morales was not served
the first notice apprising her of the particular acts
or omissions on which her dismissal was based
together with the opportunity to explain her side.
The only notice given to Morales was the letter
dated December 14, 2002 informing her that she
was already terminated. UNIVERSAL STAFFING
SERVICES, INC. VS NLRC and Morales
G.R. 177576 , 21 July 2008
32
ILLEGAL TERMINATION
33. Serious misconduct or willful disobedience by
the employee of the lawful orders of his employer or
representative in connection with his work;
Gross and habitual neglect by the employee of his
duties;
33
JUST CAUSES OF
TERMINATION
34. Serious misconduct or willful disobedience by
the employee of the lawful orders of his employer or
representative in connection with his work;
Gross and habitual neglect by the employee of his
duties;
34
JUST CAUSES OF
TERMINATION
35. Fraud or willful breach by the employee of the
trust reposed in him by his employer or duly
authorized representative;
Commission of a crime or offense by the
employee against the person of his employer or any
immediate member of his family or his duly
authorized representatives; and
Other causes analogous to the foregoing.
35
JUST CAUSES OF
TERMINATION
36. Misconduct is improper or wrong conduct. It is the
transgression of some established and definite rule of action,
a forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not mere error in judgment.
The misconduct to be serious must be grave and aggravated
in character and not mere trivial or unimportant.
Misconduct must be in connection with the work of the
employee to constitute just cause for his separation
Sexual Harassment is a serious misconduct.
36
SERIOUS MISCONDUCT
37. In order that willful disobedience by an employee may constitute
a just cause for terminating his employment, the orders,
regulations, or instructions of the employer or representative must
be:
1) reasonable and lawful;
2) sufficiently known to the employee; and
3) in connection with the duties which the employee has been
engaged to discharge.
37
WILLFUL DISOBEDIENCE
38. Neglect of duties must not only be gross but also
habitual.
Gross negligence means absence of that diligence
that an ordinary prudent man would use in his own
affairs.
Gross and habitual neglect by the employee of his
duties tends to prejudice the employer’s interest .
EXAMPLE: ABANDONMENT
38
NEGLECT OF DUTIES
39. Fraud is any act or omission, or concealment which
involves a breach of legal duty, trust, or confidence
justly reposed, and is injurious to another.
Fraud must be committed against the employer or
representative and in connection with the employee’s
work.
There should be willfulness or wrongful intent.
39
FRAUD
40. Employee concerned holds a position of trust and
confidence.
It is the breach of this trust that results in the
employer’s loss of confidence in the employee.
Personnel occupying positions of responsibility like
cashiers, managers, supervisors, salesmen, bank
tellers and the like.
40
LOSS OF CONFIDENCE
41. Employee’s commission of a crime
or offense against:
a) the person of his employer; or
b)any immediate member of the
family by affinity or consanguinity
within the fourth civil degree.
41
COMMISSION OF A CRIME OR
OFFENSE
42. Introduction of labor saving device;
Redundancy
Retrenchment
Closure or Cessation not due to
serious business losses;
Disease
42
AUTHORIZED CAUSES
43. AUTOMATION is the reduction of the
number of workers in a company made
necessary by the introduction of
machinery with a view to effecting more
economy and efficiency in its method of
production.
43
AUTOMATION OR INTRODUCTION
OF LABOR SAVING DEVICE:
44. Redundancy – exist where the
services of an employee are in excess
of what is reasonably demanded by
the actual requirements of the
enterprise.
44
REDUNDANCY
45. Retrenchment to prevent losses:
1)losses expected should be substantial and
not merely de minimis in extent;
2) substantial loss must be imminent
3) reasonable necessary and likely to prevent the
expected losses;
4) expected imminent losses must be proven by
sufficient and convincing evidence
45
RETRENCHMENT
46. CESSATION OF OR WITHDRAWAL
FROM BUSINESS OPERATIONS MUST
BE DONE IN GOOD FAITH AND WITH
VALID REASON.
46
CLOSURE/CESSATION OF
BUSINESS NOT DUE TO BUSINESS
LOSSES
47. The employee is found to be suffering from disease; and
employees continued employment is prohibited by law or is
prejudicial to his health as well as to the health of his co-
employees.
REQUIREMENTS:
A) the disease cannot be cured within a period of six
(6)months despite proper medical treatment; and
B) certification by a competent public physician
47
DISEASE AS A GROUND FOR
TERMINATION
48. -
Money claims under R.A.10022
Section 3.Joint and Several Liability. The liability of the principal/employer
and the recruitment/placement agency on any and all claims under this Rule
shall be joint and several. This liability shall be incorporated in the contract for
overseas employment and shall be a condition precedent for its approval. The
performance bond to be filed by the recruitment/ placement agency, as
provided by law, shall be answerable for all money claims or damages that may
be awarded to the workers.
If the recruitment/placement agency is a juridical being, the corporate officers
and directors and partners, as the case may be, shall themselves be jointly and
severally liable with the corporation or partnership for the aforesaid claims and
damages
Such liabilities shall continue during the entire period or duration of the
employment contract and shall not be affected by any substitution, amendment
or modification of the contract made locally or in a foreign country.
49. Section 5.Effect of Illegal Termination and/or
Deduction. In case of termination of overseas
employment without just, valid or authorized
cause as defined by law or contract, or any
unauthorized deduction from the migrant
worker's salary, the worker shall be entitled to the
full reimbursement of his placement fee with
interest of twelve per cent (12%) per annum, plus
his salaries for the unexpired portion of his
employment contract or three (3) months for
every year of the unexpired term, whichever is
less.
-
Money claims under R.A.10022
.
50. Section 1.Primary Responsibility for
Repatriation.
The repatriation of the worker or his/her remains,
and the transport of his/her personal effects shall
be the primary responsibility of the principal,
employer or agency that recruited or deployed
him/her abroad. All costs attendant thereto shall
be borne by the principal, employer or the
agency concerned 50
Section 1, Rule XIII of R.A. No. 10022 or The
Migrant Workers and Overseas Filipinos Act
of 1995, as amended
51. In case of termination of overseas employment without
just, valid or authorized cause as defined by law or
contract, the worker shall be entitled to the full
reimbursement of his placement fee with interest at twelve
percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three
(3) months for every year of the unexpired term, whichever
is less. (Italics ours)
51
Section 10 of R.A. No. 8042, or The Migrant
Workers and Overseas Filipinos Act of 1995,
52. SINGLE ENTRY APPROACH (SENA)
Issuances
DOLE Department Order No. 107-10
Rules of Procedure on SEnA
Republic Act No. 10396: An Act Strengthening
Conciliation-Mediation As A Voluntary Mode Of
Dispute Settlement For All Labor Cases, Amending
For This Purpose Article 228 Of Presidential Decree
No. 442, As Amended, Otherwise Known As The
"Labor Code Of The Philippines"
53. “whatever you do, work at it
with all your heart, as working
for the lord, not for men” COL. 3;23
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