i. Grounds

SERIOUS MISCONDUCT OR WILLFUL DISOBEDIENCE (Labor Code, Article 297[a])

Effect of failure to resort to barangay conciliation to the labor case

Labor disputes are the exception to PD 1508. Under Rule V, Section 10 of the 2011 NLRC Rules of Procedure, a respondent may move to dismiss on grounds of lack of jurisdiction, improper venue, res judicata, or prescription. Hence, failure to resort to barangay conciliation is not a valid ground to defeat the labor case.

Gross Neglect

An absence of that diligence that an ordinarily prudent man would use in his own affairs (DOLE Manual, Sec. 4343.01[27])

Habitual Neglect

Implies repeated failure to perform one’s duties over a period of time (JGB and Associates, Inc. v. NLRC, G.R. no. 109390, March 7, 1996)

Gross Negligence vs. Habitual Neglect

The former connotes want of care in the performance of one’s duties while the latter implies repeated failure to perform one’s duties over a period of time, depending upon the circumstances.

Examples of Meritorious Grounds

• Fundamental consideration of substantial justice;
• Prevention of miscarriage of justice or of unjust enrichment; or
• Special circumstances of the case combined with its legal merits and the amount and issue involved (Garcia v. KJ Commercial, G.R. No. 196830, 2012)

Immorality

Disgraceful or immoral conduct can be used as a basis for termination of employment (Santos, Jr. v. NLRC, G.R. No. 115795, 1998)

The act of engaging in extramarital affairs was specifically provided for by the cooperative’s Personnel Policy as one of the grounds for termination of employment and said act raised concerns to the cooperative as the Board received numerous complaints and petitions from the cooperative members themselves asking for the removal of Bandiola because of his immoral conduct, hence, immorality (extramarital affair) justified terminating the employment by the employer (Alilem Credit Cooperative v. Bandiola, Jr., G.R. No. 173489, 2013)

RETRENCHMENT

Retrenchment is one of the economic grounds resorted to by an employer to terminate employment primarily to avoid or minimize business losses. (Azucena, The Labor Code with Comments and Cases Volume II-B, 884, 2016)

Closure Not Due to Losses

In cases of closure not due to losses, it must NOT be in BAD FAITH. (Azucena, The Labor Code with Comments and Cases Volume II-B, 902, 2016)

Grounds for Denying Petition (R.A. 9481; D.O. No. 40-F-03) (ALCEC-YDS)

• If the petitioner union does not Appear in two successive conferences called by the MedArbiter, upon showing that the petitioner was duly notified. (Non-Appearance)
• The petitioner is not Listed in the Department’s registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality. (Illegitimacy – Unregistered Union)

The filing or pendency of any inter/intra-union dispute and other related labor relations dispute is not a prejudicial question to any petition for certification and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings for certification election. (D.O. No. 40-03, as amended by D.O. No. 40-F-03, Sec. 2, Rule XI)

Certification election may be ordered despite the pendency of a ULP charge against a union filed by the employer (Barrera v. CIR, G.R. No. L32853, 1981) or the pendency of a petition to cancel the union’s registration certificate based on an alleged illegal strike by the union. (National Union of Bank Employees v. Minister of Labor, G.R. No. L-53406, 1981)

• Failure of a local/chapter or national union or federation to submit a duly issued Charter Certificate upon filing of the petition for certification election. (Illegitimacy – No Charter)
• Absence of an Employment relationship between all the members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented. (Absence of EER Relationship)
• The petition was filed before or after the freedom period of a duly registered collective bargaining agreement; provided that the 60- day period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement; (Contract Bar)
• The petition was filed within 1-year from entry of voluntary recognition or a valid certification, consent or run-off election and no appeal on the results of the certification, consent or run-off election is pending; (1- Year Bar/Certification Year Bar)
• A duly certified union has commenced and sustained negotiations with the employer or there exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party; (Deadlock Bar/Negotiation Bar)

Under R.A. 9481, a petition for certification election in an organized establishment may be filed during the freedom period without 25% written support.

In Summary, the Grounds for Denying Petition for Certification Election:

• Non-Appearance
• Illegitimacy – Unregistered Union
• Illegitimacy – No Charter
• No Employee-Employer Relationship
• Contract Bar
• 1-Year Bar/Certification Year Bar
• Negotiation/Deadlock Bar