(Question B.17, Labor Law, 2019 Bar Exam)
Ms. A is a volleyball coach with five (5) years of experience in her field. Before the start of the volleyball season of 2015, she was hired for the sole purpose of overseeing the training and coaching of the University’s volleyball team. During her hiring, the Vice-President for Sports expressed to Ms. A the University’s expectation that she would bring the University a championship at the end of the year.
In her first volleyball season, the University placed ninth (9th) out of 10 participating teams. Soon after the end of the season, the Vice-president for Sports informed Ms. A that she was a mere probationary employee and hence, she need not come back for the next season because of the poor performance of the team.
In any case, the Vice-President for Sports claimed that Ms. A was a fixed-term employee whose contract had ended at the close of the year.
(a) Is Ms. A a probationary, fixed-term, or regular employee? Explain your reasons as to why she is or she is not such kind of an employee for each of the types of employment given, (5%)
(b) Assuming that Ms. A was dismissed by the University for serious misconduct but was never given a notice to explain, what is the consequence of a procedurally infirm dismissal from service under our labor law and jurisprudence? Explain. (2%)
(a) Ms. A is a regular employee. Answer
Under the Labor Code, a regular employee is one who is engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. A probationary employee is one who has been engaged under a probationary employment not exceeding six (6) months and the standards or criteria for regular employment have been made known on/before the engagement. A fixed-term employee is one who has been engaged for a fixed period of employment which was agreed upon knowingly and voluntarily by the parties. Rule
In the case at bar, Ms. A as volleyball coach performs activities which are usually necessary or desirable in the usual business or trade of the employer, the University. She cannot be a probationary employee since there is no indication that she was engaged under a probationary employment not exceeding six (6) months, neither is there any indication that the standards or criteria for regular employment have been made known on/before the engagement. Further, she cannot be a fixed-term employee since there is no indication that she was engaged for a fixed period of employment which was agreed upon knowingly and voluntarily by the parties. Apply
Thus, Ms. A is a regular employee. Conclusion
(b) The following is the procedure for just cause termination:
Step 1: Issuance of 1st Written Notice
Step 2: Observance of Ample Opportunity to Explain
Step 3: Issuance of 2nd Written Notice
For Step 1, the 1st Written Notice to the employee should contain the following:
1) The specific causes or grounds for termination as provided for under the Labor Code, as amended, employment contract, and company policies, if any.
2) Detailed narration of facts and circumstances that will serve as basis for the charge against the employee. A general description of the charge will not suffice.
3) A directive that the employee is given opportunity to submit a written explanation within a reasonable period, which should be at least (5) calendar days.
For Step 2, the ample opportunity to explain is satisfied by either giving the employee the chance to defend himself/herself via: (a) a written explanation; or (b) a formal administrative hearing.
For Step 3, the employer shall issue a 2nd Written Notice to the employee after evaluating all available pieces of evidence and the explanation of the employee, if any. If the employee is innocent, the 2nd written notice will indicate so. This is often referred to as a Notice of Results. If the employee is guilty, the 2nd written notice shall state that all circumstances involving the charge against him/her have been considered and grounds have been established to justify the imposition of a penalty. This is often referred to as a Termination Notice.
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
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