Saturday, October 08, 2016

1.3 million visits and 3.6 million page views: Thanks for browsing this blog!

I started this blog on October 30, 2005, and my website tracker Statcounter.com reports that, as of 5:45 PM today, this blog has now been visited more than 1,300,140 times. Another tracker that I used before, Sitemeter.com, previously reported that the average time per visit was over three minutes. Google Analytics, meanwhile, reports that visitors have come from more than 81 countries and that this blog has reached more than 3,627,168 page views.

Statcounter also reports for 2016 a daily average of 916 (page views), 510 (first-time visits), and 101 (return visits).

Google Analytics and Statcounter work in different ways and thus report different statistics. With regards the average time of 3 minutes per visit, Jakob Nielsen says that 2 minutes is an eternity on the Internet. (Nielsen is the acknowledged guru of writing for the Internet.) Nielsen also says that the number of return visits is a better indicator of website or blog’s effectiveness, rather than the number of first-time (or absolute unique) visits.

The service I provide in this blog and in my Family Matters website is free legal information and Biblical counseling. As I told one person who e-mailed me, what is legal is not always Biblical, and what is Biblical is not always legal. In my website and blogs, however, what is Biblical will always take precedence.

Do not depend on “legal information” found in chat rooms or online forums

Despite this milestone for this blog, three things sadden me:


One, I have stumbled upon chat rooms or online forums for OFWs, single parents, etc. and I am amazed at the tremendous amount of misinformation about legal matters I found in these forums. The problem is that people in these chat rooms, rather than inquiring from lawyers, rely on each other and on people who pretend to know the law. It does not matter whether a person has gone to law school or does good research on legal topics. Answering people’s questions about legal matters is considered as “practice of law” (as the Supreme Court ruled in the case involving the late Sen. Rene Cayetano and former COMELEC chairman Christian Monsod). The practice of law is reserved only for those who have passed the bar exams and are in good standing with the Integrated Bar of the Philippines.

text copied from this blog and then posted in a chat room without attributionSome people in chat rooms and online forums also copy and paste from my blog posts without giving any credit. For example, portions of my post “Can nephews and nieces inherit from their grandparents, unmarried aunts or uncles?” were posted verbatim without any attribution. (Click the image to the left so you can compare my blog post and what was posted in the forum.)

If you do have legal questions, you should inquire from lawyers directly or from government offices. I have listed in a tab below this blogs title graphic the contact information of government offices where you can get free legal assistance. For example, you can ask for free legal help from the Department of Justice Action Center (DOJAC). It acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try asking for free legal help or information from the following:

  1. Integrated Bar of the Philippines (IBP) chapter offices in your town or city, usually located in the Hall of Justice
  2. OLA (Office of Legal Aid) of the UP College of Law; Room 107, Malcolm Hall, University of the Philippines Diliman, Quezon City, 1101; UP College of Law Trunkline Phone No. (02) 920-5514, Office of Legal Aid - loc. 106; Office Hours: 8:00 am - 12:00 pm; 1:00 pm - 5:00 pm
  3. Legal Aid Bureau of the San Beda College of Law in Mendiola, Manila; tel. no. (02) 489-1670
  4. CJ Roberto Concepcion Legal Aid Clinic of the UST Institute of Civil Law, Espana, Manila; +63(02) 731-4027 or +63(02) 406-1611 (Local 8225)
  5. Sebastinian Office of Legal Aid, San Sebastian College Institute of Law; Trunk Line: (02)734-8931 to 39, Locals: 313 and 173
  6. Commission on Human Rights chapter offices
Two, the most visited page of this blog is that on adultery, concubinage, and psychological violence, with more than 250,000 visits. The other pages with a high number of visits are those dealing with support for an abandoned woman and her children (more than 119,000 visits), annulment or declaration of nullity of marriage, entertainer Amy Perez’s failed petition to have her marriage to Brix Ferraris declared void, and custody battles over children.

Three, there are more people who visit this blog rather than my Salt and Light blog on how to build strong relationships, marriages, and families. Compared to this blog, my SL blog is limping along with only 51,000+ visitors since December 2005. It seems that there are more people who want to know about how to end their marriage than people concerned about building stronger marriages.

Salt and Light blog title graphicsI remember Valentine’s Day twelve years ago. I received an e-mail from a woman, competent and highly successful in her profession. The problem was, her professional success had led to the breakdown of her marriage because her husband had become totally insecure. The question she desperately asked me was, “Is there hope for my marriage?” I spent the whole afternoon of that Valentine’s Day answering the e-mail, assuring her that yes, there was still hope for her marriage.

My hope is that more people will browse my Salt and Light blog and learn how to reclaim their marriage and rebuild their family. Some of my favorite articles are Lessons in love and life from Miriam Quiambao, Emotional word pictures as a communication tool for increasing intimacy between husbands and wives, and Men are terrible mind readers ...



I also hope that that those of you going through various marital difficulties will try to get hold and watch Kirk Cameron’s movie on relationships; you can watch the YouTube trailer above.
(Read more About FIREPROOF; surf to the FIREPROOF blog).

About FIREPROOF, the movie
At work, inside burning buildings, Capt. Caleb Holt lives by the old firefighter’s adage: Never leave your partner behind. At home, in the cooling embers of his marriage, he lives by his own rules.

Growing up, Catherine Holt always dreamed of marrying a loving, brave firefighter...just like her daddy. Now, after seven years of marriage, Catherine wonders when she stopped being "good enough" for her husband.

Regular arguments over jobs, finances, housework, and outside interests have readied them both to move on to something with more sparks.

As the couple prepares to enter divorce proceedings, Caleb's father challenges his son to commit to a 40-day experiment: "The Love Dare." Wondering if it's even worth the effort, Caleb agrees-for his father's sake more than for his marriage. When Caleb discovers the book's daily challenges are tied into his parents' newfound faith, his already limited interest is further dampened.

While trying to stay true to his promise, Caleb becomes frustrated time and again. He finally asks his father, "How am I supposed to show love to somebody who constantly rejects me?"

When his father explains that this is the love Christ shows to us, Caleb makes a life-changing commitment to love God. And so with God's help he begins to understand what it means to truly love his wife.

But is it too late to fireproof his marriage? His job is to rescue others. Now Caleb Holt is ready to face his toughest job ever...rescuing his wife’s heart.

Thursday, September 24, 2015

Evidence: Rule 128 General Provisions
















Notes: (1) For this exercise to work properly, you must enable Javascript in your browser. (2) This exercise was created with Hot Potatoes v. 6.3, a freeware from the University of Victoria in Alberta, Canada. (3) Surf to the general index of exercises.

Flashcards




Step 1: Click "Next" to show the question; Step 2: Click "Next" again to show the answer; Repeat Steps 1 and 2. Total 4 items. (Best viewed on Firefox or Chrome(







[1] Define “evidence.”Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (Sec.1)
[2] When is evidence admissible?Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. (Sec.3)
[3] When is evidence relevant?Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. (Sec.4)
[4] Evidence on collateral matters is not allowed. Exception?When it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4)



Tuesday, August 25, 2015

Clear, concise, and effective disclosure documents (Australia)

Flashcards

Step 1: Click Next button to show the guideline or "Before" example. Step 2: Click Next button again to show the explanation or "After" Plain English revision; Repeat Steps 1 and 2.
Tool: Use the active voice.Explanation: Avoid using the passive voice, where possible, as it can hide details such as who is responsible for actions. In many cases, the passive voice also requires more words and is less engaging.
Original (passive voice):

The Offer Information Line is available for more information.
Rewritten (active voice):

You should call the Offer Information Line for more information.
Tool: Use direct language (personal pronouns).Explanation: It is more engaging to refer to an ‘applicant’ as ‘you’ and the ‘company’ as ‘we’. It can also be more concise. You should ensure there is no confusion about who ‘you’ and ‘we’ are.
Original (using the word "applicant")

Applicants should consider obtaining legal advice.
Rewritten ("applicant" replaced with "you")

You should consider obtaining legal advice.
Tool: Use the positive and avoid double negatives.Explanation: It is generally easier to understand sentences that are phrased positively rather than negatively.
Original (with double negative and written negatively):

It is not unlikely that the company will have trouble paying its debts if the offer is not successful.
Rewritten (without double negative and written positively):

It is likely that the company will have trouble paying its debts if the offer is unsuccessful.
Tool: Use verbs rather than nouns, where possible.Explanation: Verbs and the present tense are usually simpler, more direct and concise.
Original:

Payment should be made by cheque.
Rewritten:

Please pay by cheque.
Tool: Avoid overusing definitions.Explanation: Definitions are very useful in providing clarity of meaning, but should not be overused.

Use one definition that is specific rather than a definition that will lead readers to other definitions, where possible.

Avoid defining commonly understood terms.

If a term is only repeated two or three times, it may not need to be defined (depending on the length of the definition).
Tool: Choose simple words for definitions.Explanation: The defined terms should be short. Select a defined term that has meaning and facilitates easy reading of sentences that include the defined term.

Avoid using a defined term that has a common meaning that is contrary to or not compatible with the meaning given in the definition.
Tool: Avoid including additional content in definitions and using the defined term within the definition.Explanation: You should avoid including important information about the offer in a definition. You should also avoid including important qualifications in a definition: for example, ‘The Offer Price is $1.00 per share plus a further $10.00 per share due on the Instalment Date’. If you include important information in the definition, it is likely the information will not be given appropriate prominence and may be missed.

The definition should make sense each time it is used. You should avoid using the defined term within its own definition as this can be circular and confusing.
Original (definition of "closing date'):

"The date on which the offer closes. Applicants should ensure their application is submitted by the closing date".
Rewritten (definition of "closing date'):

"The date on which the offer closes, being 1 June 2011 unless extended."
Tool: Avoid jargon, where possible.Explanation: If technical terms are necessary, they should be explained the first time they are used or in a glossary, or both.

Terms such as ‘pari passu’, ‘swaps’, ‘passive portfolio management’ and ‘leveraged’ should be defined or explained.
Tool: Use short sentences.Explanation: Long sentences prevent readers from understanding information easily. Each idea should be presented in a separate sentence. You should also remove any surplus words.
Tool: Use industry accepted terms.Explanation: You should use terminology that is consistent with widely accepted industry guidelines, and use it in the same sense that it is used in the guidelines.

Friday, May 16, 2014

Escalation of interest rates in loan contracts void without written notice to and written consent of the borrower

Plain Language summary:

Case title:Spouses Ignacio F. Juico and Alice P. Juico, Petitioners, -versus- China Banking Corporation, Respondent,” G.R. No. 187678, April 10, 2013

Ruling: The escalation clause is void because it granted China Banking the power to impose an increased rate of interest without a written notice to the Juico couple and their written consent.  

Definition: “Escalation clauses refer to stipulations allowing an increase in the interest rate agreed upon by the contracting parties.  

Doctrine: “There is nothing inherently wrong with escalation clauses which are valid stipulations in commercial contracts to maintain fiscal stability and to retain the value of money in long term contracts.”

“But an escalation clause is void where the creditor unilaterally determines and imposes an increase in the stipulated rate of interest without the express conformity of the debtor.”

New Sampaguita Builders Construction, Inc. v. Philippine National Bank (July 30, 2004)

Note: The Supreme Court rulings on escalation clauses also apply to credit card agreements. Polotan, Sr. v. CA (Eleventh Div.), 357 Phil. 250 (1998)

Background facts


Spouses Ignacio and Alice Juico got a loan from China Banking Corporation as evidenced by 2 promissory notes. The loan was secured by a Real Estate Mortgage over the Juico couple’s property located at White Plains, Quezon City. The notes contained the following escalation clause stating that the interest rate would change every month based on the prevailing market rate:
“I/We hereby authorize the CHINA BANKING CORPORATION to increase or decrease as the case may be, the interest rate/service charge presently stipulated in this note without any advance notice to me/us in the event a law or Central Bank regulation is passed or promulgated by the Central Bank of the Philippines or appropriate government entities, increasing or decreasing such interest rate or service charge.”
The Juicos failed to pay the monthly amortizations due. As of February 23, 2001, the amount due on the two promissory notes totaled P19,201,776.63 representing the principal, interests, penalties and attorney’s fees. The mortgaged property was sold at public auction, with China Bank as the highest bidder for the amount of Php 10,300,000.

After the auction, China Bank filed a collection case with the Regional Trial Court (RTC) of Makati City for Php 8,901,776.63, the amount of deficiency after applying the proceeds of the foreclosure sale to the mortgage debt.

In their Answer, the Juicos admitted their debt but claimed that the principal of the loan was already paid when the mortgaged property was extrajudicially foreclosed and sold for Php 10,300,000. They contended that should they be held liable for any deficiency, it should be only for Php 55,000 representing the difference between the total outstanding obligation of Php 10,355,000 and the bid price of Php 10,300,000.

At the trial, China Bank presented Ms. Annabelle Cokai Yu, its Senior Loans Assistant, as witness. She testified that she handled the account of the Juicos and assisted them in processing their loan application. She called them monthly to inform them of the prevailing rates to be used in computing interest due on their loan.

On cross-examination, Ms. Yu reiterated that the interest rate changes every month based on the prevailing market rate and she notified the Juicos of the prevailing rate by calling them monthly before their account becomes past due. When asked if there was any written authority from the Juicos to increase the interest rate unilaterally, Ms. Yu answered that they signed a promissory note indicating that they agreed to pay interest at the prevailing rate.

In defense, Ignacio Juico testified that before the loan’s release, he was required to sign a blank promissory note and was informed that the interest rate on the loan will be based on prevailing market rates. On cross-examination, Ignacio testified that he is a Doctor of Medicine and also engaged in the business of distributing medical supplies. Ignacio admitted having read the promissory notes and that he is aware of his obligation under them before he signed them.

The RTC rules against the Juicos 


The trial court held that:

(1) Ignacio’s claim that he signed the promissory notes in blank cannot negate or mitigate his liability since he admitted reading the Promissory Notes before signing them.

(2) Considering the substantial amount involved, it is unbelievable that the Juicos threw all caution to the wind and simply signed the documents without reading and understanding the contents.

The Court of Appeals affirms RTC ruling 


The CA recognized China Bank’s right to claim the deficiency because the proceeds of the foreclosure sale were insufficient to cover the amount of the debt.

Also, the CA found as valid the stipulation in the promissory notes that interest will be based on the prevailing rate. It noted that the parties agreed on the interest rate which was not unilaterally imposed by the bank but was the rate offered daily by all commercial banks as approved by the Monetary Board. Having signed the promissory notes, the Juicos are bound by the stipulations.

Supreme Court rules partly for the Juicos and partly for China Bank 


The Juico couple appealed to the Supreme Court. According to the Juicos, the issues are:

(1) The interest rates imposed by China Bank are not valid as they were not by virtue of any law or Bangko Sentral ng Pilipinas regulation or any regulation that was passed by an appropriate government entity. They insist that the interest rates were unilaterally imposed by the bank and thus violate the principle of mutuality of contracts.

(2) The escalation clause in the promissory notes does not give China Bank the unbridled authority to increase the interest rate unilaterally. Any change must be mutually agreed upon.

The Court’s ruling in favor of the Juicos: 

(1) Escalation clauses are not necessarily void. These clauses are valid stipulations in commercial contracts to maintain fiscal stability and to retain the value of money in long term contracts.

(2) The Juicos were not coerced into signing the promissory notes and they did not protest the new rates imposed on their loan. Nevertheless, an escalation clause “granting the creditor an unbridled right to adjust the interest independently and upwardly, completely depriving the debtor of the right to assent to an important modification in the agreement” is void. A stipulation of this nature violates the principle of mutuality of contracts under Article 1308 of the New Civil Code.

(3) An escalation clause is void where the creditor unilaterally determines and imposes an increase in the stipulated rate of interest without the express conformity of the debtor.

(4) Changes in the rate of interest for loans under an escalation clause must be the result of an agreement between the parties.

(5) China Bank should have given a detailed billing statement based on the new imposed interest with corresponding computation of the total debt. The statement would have enabled the Juicos to make an informed decision. China Bank should also have provided an appropriate form to be signed by the Juicos to indicate their conformity to the new rates.

The Court’s ruling in favor of China Bank: 

The Court ordered the Juicos to pay China Bank Php 4,761 ,865. 79 (instead of Php 8,901,776.63, the amount originally claimed) representing the amount of deficiency inclusive of interest, penalty charge and attorney’s fees.

Overview of Supreme Court rulings on escalation cases 


The controlling case and ruling on escalation clauses is New Sampaguita Builders Construction, Inc. v. Philippine National Bank. The Court ruled that “an escalation clause is void where the creditor unilaterally determines and imposes an increase in the stipulated rate of interest without the express conformity of the debtor.” The Court explained:
Courts have the authority to strike down or to modify provisions in promissory notes that grant the lenders unrestrained power to increase interest rates, penalties and other charges at the latter’s sole discretion and without giving prior notice to and securing the consent of the borrowers. This unilateral authority is anathema to the mutuality of contracts and enable lenders to take undue advantage of borrowers. Although the Usury Law has been effectively repealed, courts may still reduce iniquitous or unconscionable rates charged for the use of money. Furthermore, excessive interests, penalties and other charges not revealed in disclosure statements issued by banks, even if stipulated in the promissory notes, cannot be given effect under the Truth in Lending Act.
Posted below are some other cases on escalation clauses.

Banco Filipino Savings & Mortgage Bank v. Navarro, No. L-46591, July 28, 1987, 152 SCRA 346, 353

“I/We hereby authorize Banco Filipino to correspondingly increase the interest rate stipulated in this contract without advance notice to me/us in the event a law should be enacted increasing the lawful rates of interest that may be charged on this particular kind of loan.”
Ruling:

Escalation clause void because: Circular No. 494 issued by the Monetary Board on January 2,1976, because said circular is not a law although it has the force and effect of law Escalation clause has no provision for reducing the stipulated interest “in the event that the applicable maximum rate of interest is reduced by law or by the Monetary Board” (de-escalation clause).
Philippine National Bank v. Court of Appeals, G.R. No. 107569, November 8, 1994, 238 SCRA 20

The promissory notes authorized PNB to increase the stipulated interest per annum “within the limits allowed by law at any time depending on whatever policy [PNB] may adopt in the future; Provided, that, the interest rate on this note shall be correspondingly decreased in the event that the applicable maximum interest rate is reduced by law or by the Monetary Board.” Philippine National Bank v. Court of Appeals, 273 Phil. 789 (1991)
Ruling:

Although the contract included a de-escalation clause, increases unilaterally imposed by PNB violated the principle of mutuality essential in contracts.
Philippine National Bank v. Court of Appeals, 328 Phil. 54, 61-62 (1996)

Escalation clause authorized PNB to raise the stipulated interest rate at any time without notice, within the limits allowed by law.
Ruling:

PNB did not secure the conformity of the borrower to the successive increases in the interest rate. The borrower’s assent to the increases cannot be implied from lack of response to the letters sent by PNB, informing them of the increases.
Philippine Savings Bank v. Castillo, G.R. No. 193178, May 30, 2011, 649 SCRA 527

“The rate of interest and/or bank charges herein stipulated, during the terms of this promissory note, its extensions, renewals or other modifications, may be increased, decreased or otherwise changed from time to time within the rate of interest and charges allowed under present or future law(s) and/or government regulation(s) as the [PSBank] may prescribe for its debtors.”
Ruling:

Escalation clause void despite provision for de-escalation.

“The increase or decrease of interest rates under such clause hinges solely on the discretion of petitioner as it does not require the conformity of the maker before a new interest rate could be enforced. We also said that respondents’ assent to the modifications in the interest rates cannot be implied from their lack of response to the memos sent by petitioner, informing them of the amendments, nor from the letters requesting for reduction of the rates.”

Some observations: 

[1] The Juicos should have asked for the reduction of the attorney’s fees demanded by China Bank amounting to 10% or about Php 1.36 million. In New Sampaguita Builders Construction, Inc. v. Philippine National Bank, the Supreme Court equitably reduced the attorney’s fees to just 1%.

[2] The Supreme Court rulings on escalation clauses also apply to credit card agreements. See Polotan, Sr. v. CA (Eleventh Div.), 357 Phil. 250 (1998).

Friday, May 09, 2014

Rights of employees and obligations of employers in business closure, asset sale, or stock sale

Business closure The law permits an employer to dismiss its employees if the business is being closed down. Obligations of employer:

(1) serve written notices on the employees and the Department of Labor at least one month before the intended date of closure;

(2) pay the dismissed employees separation pay, except if the closure is due to serious business losses or financial reverses.

Exemption from giving separation pay: .

a. the closure was due to serious business losses or financial reverses; .

b. the employer must show convincing evidence that it actually suffered serious financial reverses.
Asset sale The business owner sells all or substantially all of the assets to another party. The business owner who sells in good faith is authorized to dismiss the affected employees. But the owner must give separation pay to the employees.

The buyer in good faith, on the other hand, is:

(1) not obliged to absorb the employees affected by the sale.

(2) not liable for paying their claims.
Stock sale

The individual or corporate shareholders sell a controlling block of stock to new or existing shareholders. The employees cannot be dismissed simply because new majority stockholders and new management have taken over the business.


Sari-sari Group of Companies, Inc. v. Piglas Kamao, G.R. No. 164624, 11 August 2008, 561 SCRA 569

Facts: The employees agreed with the corporation’s act of considering them as terminated. They accepted their separation pay.

Ruling: Despite having accepted the separation pay, the employees can contest the legality of their dismissal.

SME Bank vs. De Guzman, G.R. No. 184517, October 8, 2013


Background facts:


The original principal shareholders and corporate directors of Small and Medium Enterprise Bank, Incorporated (SME Bank) were Eduardo M. Agustin, Jr. (Agustin) and Peregrin de Guzman, Jr. (De Guzman). Some of SME Bank’s employees were Elicerio Gaspar (Elicerio), Ricardo Gaspar, Jr.(Ricardo), Eufemia Rosete (Eufemia), Fidel Espiritu (Fidel), Simeon Espiritu, Jr. (Simeon, Jr.), and Liberato Mangoba (Liberato).

SME Bank experienced financial difficulties in June 2001. To remedy the situation, Agustin and De Guzman sold 86.365% of the shares of stock of SME Bank to spouses Abelardo and Olga Samson. The Samson couple then became the principal shareholders of SME Bank, while Aurelio Villaflor, Jr. was appointed bank president.

Before the sale, Simeon Espiritu (Espiritu), then the general manager of SME Bank, met with all the employees of the head office and of the Talavera and Muñoz branches of SME Bank. He persuaded them to tender their resignations, with the promise that they would be rehired when they reapplied.

Relying on this representation, Elicerio, Ricardo, Fidel, Simeon, Jr., and Liberato tendered their resignations dated August 27, 2001. As for Eufemia, she first tendered a resignation letter and then a retirement letter dated September 2001. But as it turned out, the employees, except for Simeon, Jr., were not rehired.

The employees demanded the payment of their respective separation pays but their requests were denied. They then filed a Complaint with the National Labor Relations Commission (NLRC) – Regional Arbitration Branch No. III against SME Bank, the Samson couple, and Villaflor for unfair labor practice; illegal dismissal; illegal deductions; underpayment; and nonpayment of allowances, separation pay and 13th month pay. The employees later on amended their Complaint to include Agustin and De Guzman as respondents.

In defense, the Samson Group (the Samson couple, and Villaflor) contended that Elicerio, Ricardo, Fidel, and Liberato voluntarily resigned from their posts while Eufemia retired from her position. As their resignations and retirements were voluntary, they were not dismissed from their employment. In support of this argument, the Samson Group presented copies of their resignation and retirement letters, which were couched in terms of gratitude.

Labor Arbiter dismisses case against the Samson Group but rules against Agustin and De Guzman


(1) The buyer of an enterprise is not bound to absorb its employees, unless there is an express stipulation to the contrary.

(2) The employees were illegally dismissed, because they had involuntarily executed their resignation letters after relying on representations that they would be given their separation benefits and rehired by the new management. The arbiter ordered Agustin and De Guzman to pay the complainants’ separation pay.

NLRC ruling: mere change in management not a valid ground to terminate the employees


Dissatisfied with the judgment, Elicerio and the other employees appealed to the NLRC. Agustin and De Guzman also appealed. The employees questioned the labor arbiter’s failure to award backwages. Agustin and De Guzman, on the other hand, contended that they should not be held liable for the payment of the employees’ claims.

The NLRC found that there was only a mere transfer of shares – and therefore, a mere change of management – from Agustin and De Guzman to the Samson Group. As the change of management was not a valid ground to terminate respondent bank employees,

(1) Elicerio and the other employees were illegally dismissed;

(2) Agustin, De Guzman, and the Samson Group should be held jointly and severally liable for the employees’ separation pay and backwages.

Supreme Court ruling: corporate officers who act in bad faith or with malice liable for illegal dismissal


(1) Elicerio and the other employees are entitled to separation pay, full backwages, moral damages, exemplary damages and attorney’s fees. They tendered resignation letters only because they were led to believe that, upon reapplication, they would be reemployed by the new management. They had no real intention of leaving their posts.

While resignation letters containing words of gratitude may indicate that the employees were not coerced into resignation, this fact alone is not conclusive proof that they intelligently, freely and voluntarily resigned. To rule that resignation letters couched in terms of gratitude are, by themselves, conclusive proof that the employees intended to relinquish their posts would open the floodgates to possible abuse.

In order to withstand the test of validity, resignations must be made voluntarily and with the intention of relinquishing the office, coupled with an act of relinquishment. Therefore, in order to determine whether the employees truly intended to resign from their respective posts, the Court cannot merely rely on the tenor of the resignation letters, but must consider the totality of circumstances.

(2) Contrary to SME Bank’s argument, there was no transfer of the business establishment but merely a change in the new majority shareholders and new management of the corporation. This change is not a just or authorized cause for termination of employment under the Labor Code.

SME Bank continued to be the employer of respondent employees notwithstanding the equity change in the corporation. A corporation has a personality separate and distinct from that of its individual shareholders or members. Thus, a change in the composition of its shareholders or members would not affect its corporate liabilities.

As the employer of the illegally dismissed employees before and after the equity transfer, SME Bank is liable for the satisfaction of their claims.

(3) Liability of corporate directors and officers in illegal dismissal cases

Rule

Corporate officers are not personally liable for their official acts. A corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders, and members.
Exception

Corporate directors and officers are solidarily liable with the corporation if they acted with malice or in bad faith in terminating the employees.
 

Agustin and De Guzman are corporate directors who acted in bad faith. They may be held solidarily liable with SME Bank for the satisfaction of the employees’ lawful claims.

The dismissal of Elicerio and the other employees was done in bad faith. Motivated by their desire to sell their shares of stock to the Samson couple, Agustin and De Guzman agreed to and later implemented the precondition in the Letter Agreements as to the termination or retirement of SME Bank’s employees. But instead of going through the proper procedure, the bank manager induced the employees to resign or retire from their respective employments, while promising that they would be rehired by the new management. Fully relying on that promise, they tendered courtesy resignations or retirements and eventually found themselves jobless. Clearly, this sequence of events constituted a gross circumvention of labor laws and a violation of the employees’ constitutionally guaranteed right to security of tenure.

Tuesday, May 06, 2014

Differences between regular employees and project employees, between project employment and fixed term employment

Plain Language summary:

Case title: GMA Network, Inc., Petitioner, vs.Carlos P. Pabriga, Geoffrey F. Arias, Kirby N. Campo, Arnold L. Lagahit, And Armando A. Catubig, Respondents” G.R. No. 176419, November 27, 2013

Ruling: Pabriga and his co-workers were GMA7’s regular employees, not project employees, and they were illegally dismissed.

Definitions:

Regular employees perform activities that are usually necessary or desirable in the employer’s usual business or trade.”

Project employees perform activities that may be usually necessary or desirable in the usual business or trade of the employer.” (For example, a construction company engages in various projects like a twenty-five-storey hotel in Makati; a residential condominium building in Baguio City; and a domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these separate projects, the scope and duration of which has been determined and made known to the employees at the time of employment, are properly treated as “project employees,” and their services may be lawfully terminated at completion of the project.)

“Project employees perform activities that may not be usually necessary or desirable in the usual business or trade of the employer.” (For example, a steel company engages in  fish production or cultivation of vegetables.)

A project employee or a member of a work pool may acquire the status of a regular employee.

Related case:Universal Robina Sugar Milling Corporation, et. al., vs. Acibo, et. al” G.R. No. 186439, 15 January 2014 (differences between regular, project/seasonal, and casual employees)

Background facts


Carlos Pabriga, Geoffrey Arias, Kirby Campo, Arnold Lagahit, and Armando Catubig worked as television technicians for GMA7 in the late 1990s. Their work included manning of technical operations center and acting as transmitter/VTR men, maintenance staff, and cameramen. They were repeatedly rehired in several fixed term contracts from 1996 to 1999.

Pabriga and his co-workers originally filed in July 1999 a complaint for non-payment of benefits with the National Labor Relations Commission (NLRC). Later on, they amended their complaint by raising the issues of unfair labor practice, illegal dismissal, damages, and attorney’s fees.

Pabriga and his co-workers claimed that they were GMA7's regular employees. On the other hand, GMA7 claimed that they were merely hired as “pinch-hitters” on fixed term contracts.

Labor Arbiter rules against Pabriga and his co-workers


The Labor Arbiter dismissed the complaint for illegal dismissal and unfair labor practice, but held GMA 7 liable for 13th month pay.


NLRC reverses Labor Arbiter’s decision; Court of Appeals affirms NLRC ruling



The NLRC ruled that Pabriga and his co-workers were regular employees with respect to the particular activity to which they were assigned, until it ceased to exist. As such, they were entitled to payment of separation pay computed at one month salary for every year of service.

The NLRC also ruled that Pabriga and his co-workers were entitled to 13th month pay, night shift differential, and service incentive leave pay.

GMA7 elevated the case to the Court of Appeals through a petition for certiorari. On September 8, 2006, the CA denied the petition for lack of merit.


Supreme Court ruling: Pabriga and his co-workers were regular employees, not project employees, and they were illegally dismissed


The Supreme Court affirmed the findings of the NLRC and the CA that Pabriga and his co-workers were GMA7’s regular employees and that they were illegally dismissed.The Court ruled:

(1) Pabriga and his co-workers were not project employees because the manning of the operations center to air commercials, acting as transmitter/VTR men, maintaining the equipment, and acting as cameramen were not undertakings separate or distinct from the business of a broadcasting company.

(2) Even if Pabriga and his co-workers are to be considered as project employees, they attained regular employment status because GMA7 continuously rehired them.

(3) GMA7 did not report the completion of its projects and the dismissal of Pabriga and his co-workers in its finished projects to the nearest Public Employment Office as required by Policy Instruction No. 20 of the Department of Labor and Employment. Based on jurisprudence, the failure of an employer to report to the nearest Public Employment Office the termination of its workers’ services every time a project or a phase is completed indicates that the workers are not project employees.

(4) GMA7’s practice of hiring and rehiring of workers on fixed terms, without end, is unjustifiable.

Difference between regular employee and project employee


A regular employee performs activities that are usually necessary or desirable in the employer’s usual business or trade. A project employee performs activities that may or may not be usually necessary or desirable in the usual business or trade of the employer.

The services of the project employees are legally and automatically terminated when the project ends or is completed.

The principal test for determining whether employees are “project employees” is two-fold:

(1) Is the employee assigned to carry out a specific project or undertaking?

(2) Is the completion or termination of the project specified or determined at the time the employee was engaged for that project?

Definition of “project”



The term “project” must be properly defined in order to safeguard the rights of workers against the arbitrary use of the word “project” by employers to prevent them from attaining the status of regular employees.

(1) The “project” would ordinarily have some relationship to the usual business of the employer.

For example, a construction company ordinarily carries out two or more [distinct] identifiable construction projects: a twenty-five-storey hotel in Makati; a residential condominium building in Baguio City; and a domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these separate projects (the scope and duration of which has been determined and made known to the employees at the time of employment), are properly treated as “project employees,” and their services may be lawfully terminated at completion of the project.

(2) Exceptionally, the “project” job or undertaking is not within the regular business of the employer. The job or undertaking is identifiably separate and distinct from the ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined or determinable times. For example, a steel-making company, for one reason or another, undertakes the breeding and production of fish or the cultivation of vegetables.

Examples of regular employee and a project employee


Philippine Long Distance Telephone Company v. Ylagan, 537 Phil. 840 (2006)

Although essentially a telephone company, PLDT maintains its own accounting department to which Ylagan was assigned. PLDT was not able to prove that accounting duties were distinct, separate and identifiable from its usual undertakings.

Ylagan is therefore a regular employee, not a project employee.


San Miguel Corporation v. National Labor Relations Commission, 357 Phil. 954 (1998)

The private respondent was hired to repair furnaces, which are needed by San Miguel Corporation to manufacture glass, an integral component of its packaging and manufacturing business.

San Miguel Corporation is not engaged in the business of repairing furnaces. Although the activity was necessary to enable it to continue manufacturing glass, the necessity for the repairs arose only when a furnace reached the end of its life or operating cycle.

Private respondent is therefore a project employee.





























A project employee or a member of a work pool may acquire the status of a regular employee when the following concur:

(1) The project employee is continuously rehired even after a project has ended; and

(2) The alleged project employee performs tasks are vital, necessary, and indispensable to the usual business or trade of the employer.

Difference between project employment and fixed period/fixed term employment


GMA7 interchangeably characterized Pabriga and his co-workers’s service as project employment and fixed term employment. But these types of employment are not the same.

Project employment

The employee’s services are coterminous with the project.
The employment may, in fact, last for more than a year, depending on the needs or circumstances of the project.
Fixed period/fixed term employment

Duration of employment is agreed upon by the parties.


The decisive determinant in fixed-term employment is not the activity that the employee is called upon to perform but the day certain agreed upon by the parties for the employment relationship to commence and terminate.

The use of fixed-term employment is subject to abuse by employers who want to deprive workers of their security of tenure. In this situation, the fixed term or period should be struck down as contrary to public policy or morals.

Indications or criteria under which “term employment” does not circumvent the law on security of tenure:

(1) The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or

(2) The employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.

To prove the fixed term contracts, GMA7 presented cash disbursement vouchers signed by Pabriga and his co-workers, stating that they were merely hired as “pinch-hitters.” The Court observed that Pabriga and his co-workers were in no position to refuse to sign these vouchers, as refusal would entail not getting paid for their services. Plainly, Pabriga and his co-workers as “pinch-hitters” cannot be considered to be on equal footing as GMA7 in the negotiation of their employment contract.

Thursday, October 10, 2013

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (23): Typography and visual design for pleadings, motions, court and other legal documents

Jump to: Efficient Use of Paper Rule A.M. No. 11-9-4-SC; Save forests, use Plain English; Proposed Rules on E-Filing A. M. 10-3-7-SC; Typography in briefs and other papers, from US 7th Circuit Court of Appeals; US SEC design guidelines; How to create a PDF
[1] “Typography for Lawyers, Essential Tools for Polished and Persuasive Documents” by Matthew Butterick (California-based lawyer; graduated magna cum laude from Harvard University in visual and environmental studies; designed fonts for Apple and Microsoft; awarded the Legal Writing Institute’s 2012 Golden Pen Award)
Good typography is part of good lawyering.

Good typography reinforces the goals of the text.

Any lawyer can master the essentials of good typography.

Typography in legal documents should be held to the same standards as any professionally published material.

Some of Butterick’s recommendations for typography in legal documents:
  • Point size should be 10-12 points in printed documents, 15-25 pixels on the web.
  • Never use Times New Roman and Arial.
  • Line spacing should be 120-145% of the point size. In word processors, use the “Exact” line-spacing option to achieve this. The default single-line option is too tight; the 1½-line option is too loose.
  • The average line length should be 45-90 characters (including spaces).
Butterick’s view on point size for pleadings, motions, and court documents:
While courts often require text to be set at 12 point—and sometimes larger—it’s not the most comfortable size for reading. If you compare a court filing with the average book, newspaper, or magazine, you’ll notice that the text in the filing is larger.

When you’re not bound by court rules, don’t treat 12 point as the minimum. Try sizes down to 10 point, including intermediate sizes like 10.5 and 11.5 point—half-point differences are meaningful at these sizes.
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[2] “Best Dressed Briefs - Why Appearance Matters by Susan Hanley Duncan, University of Louisville Louis D. Brandeis School of Law
US Supreme Court’s clerk accepts only documents using fonts in the Century family and refuses to accept filings of any brief printed in Times New Roman.
[3] “Pay Attention to the Aesthetics of Your Pages by Bryan A. Garner (Michigan Bar Journal, March 2010)
Yet the legal profession is still largely unaware of how important page layout can be. On the whole, we're still stuck in the ugly typewriting mode: we still tend to rely on all-caps text and underlining as means of emphasis. Professional typographers I've spoken with are bewildered by our naiveté about the importance of not just what words appear on the page, but how they appear.
[4] “Requirements and Suggestions for Typography in Briefs and Other Papers” from US 7th Circuit Court of Appeals
Use typefaces that were designed for books. Both the Supreme Court and the Solicitor General use Century.
Any face with the word “book” in its name is likely to be good for legal work. Baskerville, Bembo, Caslon, Deepdene, Galliard, Jenson, Minion, Palatino, Pontifex, Stone Serif, Trump Medieval, and Utopia are among other faces designed for use in books and thus suitable for brief-length presentations.
Use italics, not underlining, for case names and emphasis.
Use real typographic quotes (“and”) and real apostrophes (’), not foot and inch marks. Reserve straight ticks for feet, inches, and minutes of arc.
Put only one space after punctuation. The typewriter convention of two spaces is for monospaced type only.
Do not justify your text unless you hyphenate it too. Indent the first line of each paragraph 1/4 inch or less. Big indents disrupt the flow of text.
Cut down on long footnotes and long block quotes.
Avoid bold type. It is hard to read and almost never necessary. Use italics instead.
Avoid setting text in all caps.
Another way to improve the attractiveness and readability of your brief or motion is to emulate high-quality legal typography. The opinions of the Supreme Court, and the briefs of the Solicitor General, are excellent models of type usage.
[5] US Securities and Exchange Commission “Plain English Handbook” design guidelines
A plain English document reflects thoughtful design choices. The right design choices make a document easier to read and its information easier to understand. The wrong design choices can make even a well-written document fail to communicate.
Typography (do not use all caps; use serif typefaces; mixing two serif or two sans serif typefaces can look like a mistake; do not use more than two typefaces in any document, not including the bold or italic versions of a typeface.)
Layout (flush left, ragged right; short line length; short paragraphs; vertical lists; white space)

Before and After example from SEC handbook (click the graphic to see the enlarged view)

[6] “Document Design: Pretty in Print- Part I” by Judge Gerald Lebovits (faculty member of Columbia University - Law School, Fordham University School of Law, and New York University School of Law)
Document design, or typography, refers to the visual component of a word: typeface, type size, white space, margins, alignment, horizontal and vertical spacing, headings, footnotes, endnotes, superscript, straight and curly quotes, boldface, italics, and underlining.
Without effective, legible typography, the reader won't appreciate a document's content. When you have a choice, make the document accessible, comprehensible, persuasive, and professional.
[7] “Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents” by Ruth Anne Robbins, Associate Professor of Law, Rutgers School of Law, Camden.
Persuasion includes looking good on paper — literally. Persuasion is the backbone of a lawyer’s job. Attorneys who are able to appeal to their audience will establish a measure of credibility, ethos, that will enhance the overall effectiveness of the argument. Lawyers are taught to use every part of a document as an opportunity to persuade. Textual design of the document should be approached with the same attitude, i.e., how can it help the lawyer persuade an audience?
Prof. Robbins on point size and court rules:
her legal There is no definitive scientific answer, however, to whether court rules should require 12-point or 14-point font, given a page that is 8.5 inches by 11 inches. The studies unfortunately did not test the relative legibility of font sizes using lines of text closer to what normally appears on the standard paper size used for most legal documents. There is some discussion that larger font sizes such as 14-point Roman cause longer fixation pauses, which in turn slows reading. Dr. Tinker took care to caution that there was no easy way to draw a final conclusion as to optimal type size because other factors contribute to the equation, such as line length and line spacing. Nevertheless, experts in the field recommend reserving 14-point and larger sizes for headings as opposed to blocks of text. (page 122)
On line length:
The optimal line length depends on the size of the type. Unfortunately, the standard 6.5 inches of 12-point type in common use, that is, one-inch margins on the left and right sides of an 8.5-inch-wide page, decreases legibility by more than 3%. Based on those studies, more modern publications claim that the ideal line length for 12-point type should range from 2.75 to 4 inches. Modern examples of text using narrow columns for printing include newspapers and online legal research documents from Lexis/Nexis or Westlaw. (pages 122-123)
Prof. Robbins includes in her study the typographic requirements of various US courts.


“Efficient Use of Paper Rule” A.M. No. 11-9-4-SC

The Supreme Court’s “Efficient Use of Paper Rule” became effective as of January 1, 2013. Covered by the Rule are pleadings, motions, and similar papers; all decisions, resolutions, and orders issued by courts and by quasi-judicial bodies under the administrative supervision of the Supreme Court; reports submitted to the courts, and transcripts of stenographic notes. (Please read also A.M. No. 10-3-7-SC Proposed Rules on E-Filing.)

The Rule requires all pleadings and court documents to be written in:
  • single space with a one-and- a-half space between paragraphs,
  • using an easily readable font style of the party's choice,
  • of 14-size font, and
  • on a 13-inch by 8.5-inch white bond paper.
The Rule also requires a left hand margin of 1.5 inches from the edge; an upper margin of 1.2 inches from the edge; a right hand margin of 1.0 inch from the edge; and a lower margin of 1.0 inch from the edge.

The Supreme Court justifies the Rule by the following reasons:

(1) To produce 500 reams of paper, twenty trees are cut and 100,000 liters of water are used, water that is no longer reusable because it is laden with chemicals and is just released to the environment to poison our rivers and seas;

2) The judicial system needs to cut the use of excessive quantities of costly paper, save our forests, avoid landslides, and mitigate the worsening effects of climate change that the world is experiencing;

(3) The judiciary can play a big part in saving our trees, conserving precious water, and helping mother earth.

Save forests, use Plain English

“In 1992, the Sierra Club estimated that the average California lawyer used a ton of paper each year, a hefty pile indeed in a state that had about 137,000 lawyers. The environmental group urged the state’s Judicial Council to enact a rule requiring use of recycled paper in documents filed in the courts, a move that the group estimated would save more than 6,000 trees annually.

“Two days later, a Los Angeles Times reader penned a letter-to-the-editor with a one-sentence solution of his own. ‘If the Sierra Club would like to save whole forests rather than just a few thousand trees,’ he wrote, ‘I suggest that they encourage lawyers to use plain English.’”

“The letter writer was David Mellinkoff, professor emeritus at the UCLA School of Law and the acknowledged dean of the legal profession’s Plain English movement.”

Source: “Legal Writing: Sense and Nonsense” by Douglas E. Abrams, Associate Professor, University of Missouri School of Law


Proposed Rules on E-Filing A.M. No. 10-3-7-SC: Guidelines on Submission and Processing of Soft Copies of Supreme Court-Bound Papers Pursuant to the Efficient Use of Paper Rule

(1) Soft copies of all Supreme Court-bound papers and their annexes must be submitted simultaneously with the hard copy if by compact disc (CD) or within twenty-four (24) hours from the filing of the hard copy if by e-mail. It must be understood, however, that the paper shall be deemed to have been filed on the date and time of filing of the hard copy and not the soft copy.

(2) The soft copies must be in PDF and individually saved, as well as individually attached to the e-mail, if applicable. The file name of the soft copy must be the same as the document title. Examples: Petition for Review should have a file name "Petition for Review.pdf" Annex A should have a file name "Annex A. pdf"

(3) Soft copies submitted by e-mail must be addressed to the appropriate docketing office:

Case Type Docketing Office E-mail Address (please verify)


Judicial cases Judicial Records Office (JRO) efilejro@sc.judiciary.gov.ph
Administrative
complaints
against personnel of the SC and its decentralized units (e.g., OCA, PHILJA, JBC,
MCLEO)
Office of Administrative Services, SC (OAS-SC) efile_oas_sc@sc.judiciary.gov.ph
Administrative complaints and
matters involving the Court of
Appeals, Sandiganbayan,
Court of Tax Appeals and lower courts, its justices, judges and personnel

Documentation Division, Legal Office, OCA efile_oca@sc.judiciary.gov.ph
Administrative
matters
involving the SC
and its
decentralized
units
Office of the Clerk of Court En Banc efile_occeb@sc.judiciary.gov.ph
Complaints against lawyers
and other bar matters
Office of the Bar Confidant (OBC) efile_bar@sc.jucliciary.gov.ph
(4) The above docketing offices have the primary responsibility of ensuring that all Supreme Court-bound papers have the corresponding soft copies. They shall also be responsible for the safekeeping and archiving of the CDs.

(5) The e-mail shall use the following format:



(6) A CD or an e-mail shall contain only electronic documents pertaining to one case. In the same manner, all soft copies of Supreme Court-bound papers and their annexes pertaining to the same case shall be saved in one CD or attached to one e-mail. In case the total file size of the electronic documents exceeds the maximum size of the CD or the maximum size allowed for uploading by the e-mail service being used by the filer, the electronic documents may be saved in different CDs or e-mailed in batches, but must be clearly marked and/or follow the format prescribed above.

(7) The filer shall also attach to the CD or the e-mail a verified declaration that the pleading and annexes submitted electronically are complete and true copies of the printed document and annexes filed with the Supreme Court. The declaration shall use the following format:



The declaration attached to the CD must be original, while the declaration attached to the e-mail must be in PDF.


How to create a PDF; use a scanner to turn your paper documents to PDF

The Proposed Rules on (paperless) E-Filing require lawyers to submit their pleadings to the Supreme Court in PDF format. PDF stands for “Portable Document Format.” Adobe Acrobat is the standard for creating PDFs (where you can sign your documents online) but it is expensive.

A cheaper alternative is to use a scanner to turn your paper document to PDF. Late-model printers from HP, Brother, Epson, etc. have scanners bundled with them. (If you only have a generic scanner, you can download free software.) Here are the steps:

[1] After preparing your documents in your word processor (MS Word, Libre Office, etc.), print them out. Sign the documents and have them notarized.

[2] Scan your documents page by page; if you have voluminous documents, scanning them will be a tedious process.

You can monitor on your computer screen the scanning progress. Be careful with choosing the scanning type. If you choose a very high resolution, your PDF file will be extremely large. (If you are using Yahoo Mail, it has a limit of 25 megabytes for attachments.)

Save your documents as PDF to an appropriate folder.

[3] Burn your PDFs into a CD. Or attach them to your email.

Resources: 

How do I scan to PDF? (University of Cambridge, Faculty of Law)

Scanning Directly to a PDF File – Epson

How to Scan a Document to PDF | eHow

Advanced Scan to PDF Free - CNET Download.com