Tuesday, January 31, 2017

Dismissal of employee for just cause but without proper notice

To dismiss an employee, the law requires not only the existence of a just and valid cause but also enjoins the employer to give the employee the opportunity to be heard and to defend himself.

To dismiss an employee because of abandonment, the following requisites must concur to constitute abandonment: (1) failure to report for work or absence without valid reasons; AND (2) a clear intention to sever employee-employer relationship; the latter being the more determinative factor.

The procedure for terminating an employee is found in Book VI, Rule 1, Section 2(d) of the Omnibus Rules Implementing the Labor Code.

In cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to follow the Wenphil doctrine which held that the dismissal was for just cause but still imposing sanctions on the employer.

This is to avoid the absurd situation where there is a just or authorized cause for dismissal but a procedural infirmity invalidates the termination.

Where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal or render it illegal or ineffectual. But the employer should indemnify the employee for the violation of the latter's statutory rights, as ruled in Reta vs. NLRC (G.R. No. 112100 May 27, 1994).

The indemnity to be imposed should be stiffer to discourage the abhorrent practice of "dismiss now, pay later" which the Supreme Court sought to deter in the Serrano ruling.

Monday, January 30, 2017

Notes on the Katarungang Pambarangay Law

Lupon proceedings under the Local Government Code are not judicial proceedings. There is no such thing as a barangay court.

In the lupon, only mediation and conciliation are done. The lupon does not have inherent adjudicatory powers. Any adjudicatory power must be agreed upon by the parties in writing. In other words, a barangay lupon may exercise adjudicatory powers only if the parties agree so in writing.

The purpose of the lupon proceedings is to reduce the number of court litigations. It also aims to prevent the deterioration of the quality of justice.

No lawyers are allowed in the proceedings before the lupon, and personal appearance is required.

What may be settled? All disputes EXCEPT the following:

1.) government is a party
2.) public officer or employee is a party and where the dispute relates the performance of his official function
3. offenses with maximum penalty of imprisonment exceeding one year or a fine exceeding P5,000.00
4.) there is no private offended party
5.) real properties in different cities or municipalities, unless parties agree otherwise
6.) parties actually reside in different barangays of different cities or municipalities, except where such units adjoin each other and the parties agree to submit their differences to an appropriate lupon.

(So where the parties are not actual residents in the same city or municipality or adjoining barangays, they are not required to submit their dispute to the lupon.

7.) such other  classes of disputes which the president may determine in the interest of justice.

In another instance where a case may fall under the lupon, the court in a criminal case may motu proprio refer the case, at any time before the trial, to the lupon for amicable settlement, even if the case does not fall within the authority of the lupon.

The form of settlement must be in writing.

An amicable settlement has the same effect of a final judgment of a court upon the expiration of 10 days from date thereof.

Failure to go through prior recourse to the lupon when required by law bars the filing of the criminal or civil action in court. It is a ground to dismiss the case, that a condition precedent for filing the claim has not been complied with.

Sunday, January 29, 2017

Right of action and cause of action

The elements of a cause of action are:

1.) a Right (in favor of the plaintiff)
2.) an Obligation (of the defendant to respect such right)
3.) Violation of this right (by the defendant)

A cause of action is substantive in character, while a right of action is procedural in character. There can be no right of action without a cause of action first being established.

But the existence of a cause of action does not guarantee a right of action. In Philippine American General Insurance Co. vs. Sweet Lines, Inc. (G.R. No. 87434 August 5, 1992), the Supreme Court held:
"In the case at bar, there is neither any showing of compliance by petitioners with the requirement for the filing of a notice of claim within the prescribed period nor any allegation to that effect. It may then be said that while petitioners may possibly have a cause of action, for failure to comply with the above condition precedent they lost whatever right of action they may have in their favor or, taken in another sense, that remedial right or right to relief had prescribed." [emphasis supplied]

Friday, January 27, 2017

Is a seaman entitled to overtime pay?

A seafarer, or what is commonly known in the Philippines as seaman, is generally not entitled to overtime pay merely on the basis of rendering service during the whole time he is confined in the vessel at sea.

The nature of the job of a seaman is such that he is required to be in the vessel at sea where his services, while following a shifting schedule, may be required at various times during the entire voyage for the safety of passengers, crewmen and cargo.

In PCL Shipping Philippines vs. NLRC (G.R. No. 153031, December 14, 2006), the Supreme Court ruled that the correct criterion in determining if sailors are entitled to overtime pay is not whether they were on board and can not leave ship beyond the regular eight working hours a day, but whether they actually rendered service in excess of said number of hours.

To be entitled to overtime pay, the sailor must therefore prove that he rendered service in excess of the regular eight working hours a day.

In Cagampan v. National Labor Relations Commission (195 SCRA 533 [1991]), the court stated:
"Realistically speaking, a seaman, by the very nature of his job, stays on board a ship or vessel beyond the regular eight-hour work schedule. For the employer to give him overtime pay for the extra hours when he might be sleeping or attending to his personal chores or even just lulling away his time would be extremely unfair and unreasonable."


Wednesday, January 25, 2017

Is an unnotarized contract of sale of land effective between the seller and buyer?

A contract of sale involving real property is perfected the moment all the elements of a contract of sale are present -- even if said contract is reduced only in a private instrument or in layman's terms, an unnotarized document.

The Supreme Court in Tapec vs. Court of Appeals (G.R. No. 111952, October 26, 1994) explained in this, to wit:

"Article 1358 does not invalidate the acts or contracts enumerated therein if they are not embodied in public documents. As one noted civilian (Tolentino, Arturo) has said:

This Article enumerates certain contracts that must appear in public or private documents. This provision does not require such form in order to validate the act or contract but to insure its efficacy. It is limited to an enumeration of the acts and contracts which should be reduced to writing in a public or private instrument. The reduction to writing in a public or private document, required in this article, is not an essential requisite for the existence of the contract, but is simply a coercive power granted to the contracting parties by which they can reciprocally compel the observance of these formal requisites. Contracts enumerated by this article are, therefore, valid as between the contracting parties, even when they have not been reduced to public or private writings. Except in certain cases where public instruments and registration are required for the validity of the contract itself, the legalization of a contract by means of a public writing and its entry in the register are not essential solemnities or requisites for the validity of the contract as between the contracting parties, but are required for the purpose of making it effective as against third person." [emphasis supplied]

The Supreme Court in Estate of Pedro C. Gonzales vs. Heirs of Marcos Perez (G.R. No. 169681, November 5, 2009) further states:

"Nonetheless, it is a settled rule that the failure to observe the proper form prescribed by Article 1358 does not render the acts or contracts enumerated therein invalid. It has been uniformly held that the form required under the said Article is not essential to the validity or enforceability of the transaction, but merely for convenience. xxx  For the time-honored rule is that even a verbal contract of sale of real estate produces legal effects between the parties. Stated differently, although a conveyance of land is not made in a public document, it does not affect the validity of such conveyance. Article 1358 does not require the accomplishment of the acts or contracts in a public instrument in order to validate the act or contract but only to insure its efficacy." [emphasis supplied]


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