ss_blog_claim=4c833f8ed6013350a63df30f8b86e435 ss_blog_claim=4c833f8ed6013350a63df30f8b86e435
 "The employer's act of tearing to pieces the employee's time card may be considered an outright - not only symbolic - termination of the parties' employment relationship."

FACTS:

San Joaquin and Fernandez (respondents) were employed by Vicente Ang (petitioner) in his business as helper and driver respectively.  In a hearing relative to 41 criminal cases filed by his former employee, the respondents testified against the petitioner.  After that, the latter began to treat them with hostility and antagonism.

One day, a heated argument between San Joaquin and Ang's wife Rosa took place, in view of the former's refusal to obey her her instruction to transfer the monobloc chairs in her restaurant.  Upon reporting for work two days later, he found out that his DTR was torn into pieces by Ang.  He learned that the DTR of Fernandez also suffered the same fate after they testified in Court.

Fernandez was suspended for a week for insubordination but the act of insubordination was not specified by Ang in his memorandum to the latter.

Respondents filed complaints for illegal constructive dismissal.

ISSUE:

Whether tearing of DTRs of the employees by the employer constitutes constructive dismissal.

HELD:

“Constructive dismissal exists where there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay.” It is a “dismissal in disguise or an act amounting to dismissal but made to appear as if it were not.” Constructive dismissal may likewise exist if an “act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.” “Constructive dismissal exists when the employee involuntarily resigns due to the harsh, hostile, and unfavorable conditions set by the employer.” “The test of constructive dismissal is whether a reasonable person in the employee’s position would have felt compelled to give up his position under the circumstances.”

"The CA is correct in its pronouncement that respondents were constructively dismissed from work. Moreover, by destroying respondents’ time cards, Ang discontinued and severed his relationship with respondents. The purpose of a time record is to show an employee’s attendance in office for work and to be paid accordingly, taking into account the policy of “no work, no pay”. A daily time record is primarily intended to prevent damage or loss to the employer, which could result in instances where it pays an employee for no work done; it is a mandatory requirement for inclusion in the payroll, and in the absence of an employment agreement,it constitutes evidence of employment. Thus, when Ang tore the respondents’ time cards to pieces, he virtually removed them from Virose’s payroll and erased all vestiges of respondents’ employment; respondents were effectively dismissed from work. The act may be considered an outright – not only symbolic – termination of the parties’ employment relationship; the “last straw that finally broke the camel’s back”, as respondents put it in their Position Paper."

see full text of case here.
It is of those nights that I am trying hard to court sleep but to no avail.  If that bottle of San Mig Light has something to do with my nocturnal blues, then I think I should avoid it next time ;).  

The whole day, our class had a review in Remedial Law as a requirement in one of our subjects for the second semester.  Some of our schoolmates also joined us.  I like the way our lecturer delivered the topics.  It was fun and I did not feel sleepy despite of the fact that those topics were already somewhat familiar to me (having listened to my favorite author Riano for countless of times).  

And since sleep is still eluding me, I might as well share something new that I learned from that review. 

Warning: This is intended for law students but those who are not are also welcome.  

On Bill of Particulars:

As stated in the Rules of Civil Procedure, before filing an Answer to a Complaint, the defendant has the option to file a bill of particulars.  It must be filed within the 15-day period provided by the Rules for the defendant to file his Answer. 

If within the 15-day period, the motion for a bill of particulars is denied on the 10th day, the defendant has five days to file his Answer.  However, if the said motion is denied on the 12th day, the defendant still has five days to file his Answer and not three days.  This is by virtue of the provision of Section 5, Rule 12 of the same Rules which states: 

"Sec. 5. Stay period to file a responsive pleading. - After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than five (5) days in any event."

Variance:

It is also the first time that I heard of the term "variance".  Maybe it's because, I have not read all the provisions of the Rules and my Civil Procedure textbook.  Variance is when the offense charged or the accusation does not conform with the evidence presented during trial.  In criminal cases, its effect is that the court would make its judgment in favor of the accused.

So far,these two are all that I can discuss for now, the rest will be posted here when I get back from my vacation which will start tomorrow.  

I have to give credit to Atty. Bolanos for being a great lecturer.  I did not only enjoy this day, I also learned something  new to be added on my arsenal of legal know how.   Thank you very much sir.  

In closing, let me share this phrase quoted from a decided case of the Supreme Court. 

"Under the principle of res judicata, the Court and the parties are bound by such final decision, otherwise, there will be no end to litigation. It is to the interest of the public that there should be an end to litigation by the parties over a subject fully and fairly adjudicated, and an individual should not be vexed twice for the same cause." (Manalo et al v. CA, G.R. No. 124204, April 20, 2001)
Habemus Papam! (meaning: We have a Pope in Latin, the official language of the Roman Catholic Church).  This is what greeted me this morning when I got online.  For us who belong to the Roman Catholic Church, it means that a new pope was elected by the cardinals in the conclave inside the Sistine Chapel in Vatican City.


Looking back, on February 11, 2013, Pope Benedict XVI announced his resignation effective February 28, 2013 (the first pope to have done so after 700 years) because of his failing health.  On March 12, 2013, the conclave started.  And on this fateful day, after four times of failing to elect a pope, the conclave finally got the required two-thirds majority vote in its fifth attempt.  I thought the streak would last for several days, but in God’s grace it only took two days for the College of Cardinals to elect the successor of Pope Benedict XVI; the next Fisherman who would lead the flock of the Roman Catholic Church.

And yes, sede vacante no more.  Habemus Papam!  We now have a Pope in the person of an Argentinean cardinal named Jorge Mario Bergoglio whose papal name is Francis I.


Forget about the scandals that plagued the Church.  Let’s celebrate the election of the Holy Father, the Holy See, Bishop of Rome, Supreme Pontiff, Vicar of Christ, Servant of the Servants of God or whatever you prefer to call the Pope.  I hope his election would bring new hope to the Church.


Like any yuppies (that’s for young urban professionals) I dream of having my own home.  It is something which I consider as my own kingdom.  Nothing beats having a home of your own where you can do whatever you want. 

And for anyone who like me, is also planning to buy a house, there are a lot of things to consider.  One of my top most priorities, well aside from electricity is the plumbing system of the house.  It must be borne in mind that water is very important; so it is a must that you use good if not the best plumbing supplies.

These days, there are a lot of hardware stores that offer plumbing supplies.  It is important to choose the best brand of plumbing supplies or you will end up in frustration by replacing them every other day.  If you do not have time to go to the hardware, there is an online store where you can shop  for your metal pipe fittings and other plumbing needs even as small as brass pipe nipples.  It is called PexUniverse.com.  They are selling a wide variety of brands of plumbing supplies such as Amtrol, Honeywell, Wright Valves, Senphus and a lot more.  I can vouch for their quality since I used to work for a hardware store that sells the brands that I mentioned above. 

Why shop in PexUniverse.com?  First, they have a wide variety of brands you can choose from.  Second, it is convenient since all you have to do is go to their website to place your order.  Third, there is no need to worry about the delivery of your orders because you will not pay a single cent for it if your order is over $250.  They will deliver it free of shipping.  All you have to do is click and wait for it to be delivered at your doorstep. Neat, right?  

I am lying in bed thinking of things to do tonight but nothing will come to my mind.  My brain still numbs from the exam I had earlier.  I was bombarded with objective questions that I did not imagine my professor would ask.  Well anyway, I should have known better that anything goes when it comes to stuff like that.  I have to do better next time.  

Anyhow, I am thinking of having a movie marathon for some relaxation since I do not have an exam tomorrow.  But hey, before that, I still have to purchase some alejandra guzman tickets and calibash tickets and oh, rodrigo ygabriela tickets too!  This is not for me but for my friends, I am just doing it as a favor. 

I am a person who desires to learn new stuff to make my mind always busy.  This is because my teacher in high school once told me; an idle mind is the devil’s playground. 

There are a lot of things that I want to learn ; how to bake, sew, play the piano and a lot more.  I envy (hmmm...one of the seven deadly sins...my sisters who know how to use the sewing machine.  It is really my dream to make my own quilt.  I attempted to do it but when I accidentally sewed my finger, I gave up.  Maybe sewing is not for me.  My mind fantasized cross stitching too but because I get caught up with my work and my studies most of the time, it has to take a backseat for a while.  I sometimes envy (again!)  my sisters.   Why do they know a lot of craft, while the only thing I know is hold a book, sit in a corner and read or sometimes solve puzzles.  I cannot even sew my own pillow case.  I have to wait for my sister to do it for me.  I know how to cook but I am not what you consider an expert in the kitchen.  My ability to cook is somewhat mediocre. Don't worry though, I assure you, the dishes I prepare are edible.

I even tried to ride a motorcycle when I was seven under my father's tutelage but it was so long ago and I already forgot everything about it.  I also want to learn how to hold and shot a gun.  It is not because I want to kill people.  It is  for self-defense just in case I need it someday.  There is nothing wrong with being prepared for anything.  We do not know what lies ahead in the next bend.
  
 As for my latest adventure, it is learning the French language.  It is really a challenge.  I bought a French dictionary for this purpose.  I know few words and phrases but too bad, I do not know how to construct sentences.  My best friend cannot teach me for now as he is busy with his job.  I am trying to familiarize myself with two words a day.  I am learning  them step by step.  And that is where it ends as I do not know how to write and construct sentences from those words I learned.  I wish I was born a French because I really love the language (maybe I was one in my previous life.)

So I guess this is all for now.  Au revoir mes amis!

     It's been three weeks that I didn't experience weekends, wow! Everyday feels like weekdays. I am always on the go. And well today is really a manic Monday! I woke up very early for my scheduled reading time, no time should be wasted for a working student like me. I was tired to the bones but I have no choice but to leave my bed.

It's just another manic Monday
I wish it was Sunday
'Cause that's my fun day
My I don't have to run day
It's just another manic Monday.

     This song of The Bangles is what running through my mind while I was on my way to work. A bad omen because when I arrived at the office, a pile of other people's work was on my table waiting for my attention. Whew! As usual, I have to do it since I don't have a choice. If not for my boss, I would let their papers rot to hell so they would learn to do their job. I do not know where they put their sense of responsibility. Even as simple as drafting an order, they can't do it on their own. I want to help but it is a different thing when I am left on my own to do a job that is not supposed to be mine! By golly, when are they going to change their attitude? Yes, I learn something from doing it but this is too much.

      Okay since I don't have a choice, I have to do it (again). Meanwhile, my articles and dealfun.com reviews would have to take a backseat to give way to a “little charity”. I just hope I will gain something from sacrificing for these dumb, lazy and irresponsible people!And oh, I hate Mondays!
Well, well, well, it's been eon since the last time I was here.  I am taking the liberty of writing something again.

Last night, I was devastated by the news of my boss' sister-in-law's death.  It seems surreal. It was only a week ago that we were talking about her chemotherapy session as she was diagnosed of stage 4 breast cancer.   I feel for my boss because she tried everything to save her but to no avail.  This made me think again of the fragility of life.  We  can be taken away in just a blink of an eye, whether we are prepared or not.  This made me ponder about one thing that I regret most up to this very moment.  

Let me take you back to the time when I was this selfish teen.  I have this very loving grandmother whose only fault is to love me unconditionally; despite the fact that I don't mind her.  She loved running her fingers through my hair.  Sometimes, she would love to have me put my head on her lap.  However, I cannot appreciate these small gestures of love that she showered on me because I was too preoccupied with myself. 

  I forgot that there were people around me who love me.  I was a despicable, selfish bitch. I never realized that life was about to give me the most painful lesson I would ever have.

A few days after my graduation in high school, she went to Arakan to visit my uncle's family. After a few days, my cousin told me that she got sick and because of complications, never recovered again.  When she got home, she was no longer the vibrant woman I used to know.   She could not even say a word.  It was only her eyes that told me she still recognize me.  I talked to her to say how sorry I am for my behavior.  She struggled to open her mouth but no words would come out.  I realized the time that I wasted ignoring her.  If only I could turn back time.  I would do everything just to have her back so I can requite all the love she has given me  but I already forfeited my chance.  I tried to whisper to her ear that I love her.  Did she hear me?  I don't have a way of knowing because I only got  blank stare.  All I know is the feeling of regret seeping through every fiber of my being and gradually killing me.    I learned my lesson in a hard way.

Fast forward to present day,  I still feel the same way.  I am still longing to have her back.  Even in my dreams, my subconscious is shouting my desire to hug and kiss her.  If only I could turn back time, I would be the sweetest granddaughter she would ever had.  I would requite all the kindness and love she had given me but sadly, I will never have her again.
   
From that experience I had learned to seize every moment to let the people I care about know  that I love them, especially my parents and my siblings.  I hug and kiss them to show them how much I love and care for them; hoping that those small gestures of love would one day become their most cherished moment. 



    

Negotiable Instruments Law exam last night.  I was so mentally drained that I slept so soundly when I got home.  It is a very nice way to sleep than taking sleeping pills.  It worked for me. :)

I had Transportation Law exam earlier. Thanks God, no multiple questions to mess up my mind, only kilometric questions that made my right hand shake because of 1 1/2 hour of non-stop writing of answers.  I wish I am an ambidextrous. 

Four subjects down, three more to go.  Tomorrow is Land and Titles schedule.  So good luck to me again. And oh, I need more than that, I need blessings. :)
Midterm Examination week.....

It's very exhausting but I do not have a choice since I want to pass all my subjects.  Two down, five subjects more to go.  I will discuss next time the answer to my assignment in Criminal procedure.  Thanks to my ever loyal assistant, Google for helping me with my assignments and cases.

Gotta go, I still need to study in preparation for tomorrow night's exam.  


Ciao!


Our class in Criminal Procedure ended with my professor giving me an assignment about pleading guilty to a lesser offense; i.e. if it is allowed under the Rules on Criminal Procedure.  And I was thinking that our next class would be on Thursday but good thing my classmate reminded me that next meeting will be tomorrow.  With a lot of things in mind, I forgot about my class schedule.  Poor me! 

When I got home, I immediately opened my laptop and took my assignment seriously by doing some research before I embarrass myself in class tomorrow night and I can give my professor a satisfactory answer.   As always I consulted Mr. Google again.  Fortunately, I found what I was looking for.  I hope it is the answer to his question. 

I feel pressured especially that I am called to recite in class constantly,  sometimes depriving my classmates of their moment to shine.  This is embarrassing.  I do not want them to think that I am dominating the class.  I admit, I am not  brilliant but just an idiot of a student struggling to pass my subjects; however my professor have this penchant of always making me stand and answer his questions that sometimes I would be standing for the whole period.   

Fortunately, this is not true with my other subjects. For if it would be also what I have in Crim Pro, for sure, I won’t be sleeping 24/7.  Thanks God!




 Accidents nowadays are inevitable. Most common of which are auto accidents ranging from pedestrian accidents, motorcycle accidents,  and bicycle accidents. No matter how careful we are there are others who are not careful enough to avoid it. What if it really happens? It would be apparent that you would be out of work because of somebody's carelessness. No matter how big or small the injury was, the injured party should be properly compensated for it. In some cases, insurance companies tries to run away from their obligations posing circumstances that neglect the injured person's rights.

Well, if you have that very same problem and is currently living in Hawaii, you are one lucky person because a Hawaii Auto Accident Lawyer is just around the corner. So drop everything now and get what you deserve.