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?