Despite the tremendous advantages being enjoyed by employers, despite being defended by giant law firms

that bill them in millions, and notwithstanding the fact that their HR executives and managers are topnotch and
well-paid, companies are still losing their cases before the labor tribunals and courts. They were served
adverse decisions and writ of executions that direct them to pay millions to workers. I have a favorite example
involving a global company, manufacturing and selling consumer goods and represented by a very big and
influential law firm, that has produced many top officials in government. This company lost a multi-million case
to poor contractual workers who were represented only by a low profile lady lawyer, who used to be my law
student. The question is why.

Being a Law professor and Bar reviewer for more than three decades now, and as an author of Labor Law
books, it has become my yearly routine to review every January, all the Supreme Court decisions in labor
cases in the past year. I have found out that management lost 60% of all labor cases in 2012. I did examine
how these cases were handled by the line management that decided to hire, fire and manage people, by HR
managers who documented the management decisions, and by the lawyers who handled the litigation in court.
My findings are very revealing. This month, I shall share this in a symposium in Shangri-La Makati with CEOs,
HR executives and labor lawyers.

The first reason is making the wrong decisions about people, like hiring the wrong person or putting him in the
wrong position, dealing with labor-only contractors, major errors in wage-fixing and benefits administration, or
anti-labor and anti-union acts and other unfair labor practices. About 75% of cases filed against management
are illegal dismissal cases, either due to lack of just cause or for failure to follow the rules on due-process.
Others are lack of management skills in undertaking corporate transformation, like mergers and consolidations,
and lack of basic knowledge on the proper procedure to undertake retrenchments, redundancy, mechanization
and installation of labor-saving devices.

The second reason is the propensity of certain company owners and COOs/CEOs not to listen to the expert
advice of their own HR professionals, labor relations consultants and even DOLE officials and the companies'
failure to invest in the acquisition of adequate knowledge and skills in leading and managing people. Related to
this is the lack of basic knowledge in the company on the art and science of documentation related to
personnel, from hiring to retiring. They do not even know how to conduct administrative investigation properly
and in accordance with the Labor Code. Neither do they have any skill on the proper technique in HR
documentation. They need to study again from the masters.

The third reason for losing cases is getting the wrong lawyers, those who are not experts in labor cases. They
may be the most expensive corporate, criminal, civil or tax lawyers in town but labor cases are a different
banana altogether. These expensive lawyers might not even be familiar with the latest labor jurisprudence, and
they might not have rapport with Labor Arbiters, NLRC Commissioners and the staff in labor tribunals. The
labor lawyers would tell you that it is not enough that your lawyer knows the law. He must know the Arbiter too.

In 2012, some illegal dismissal cases were lost by management because some lawyers failed to file the
required position papers before the Labor Arbiter. Such failure is deemed a waiver of management's right to
contest the allegation of illegality in the termination of employment. Normally, such default would be a virtual
confession of judgment. Lawyers who commit this gross negligence deserve to be disbarred, or at least
suspended from the practice of law. How can employers claim of being deprived of a day in court when it is
their own lawyers who bungled the case from the very beginning. Clients should not be condemned to spend
millions for lawyers who are incompetent and grossly inept. Employers should fire these kinds of lawyers to
avoid major legal disasters.

Freeman ( Article MRec ), pagematch: 1, sectionmatch:

The fourth reason for losing cases is perhaps because, in the first place, the complainant really deserves to win
on the merits. No brilliant lawyer can turn around a losing case. Lawyers cannot, should not manufacture
evidence. If employers fire people indiscriminately, without due respect to both the law and the workers' rights,
they should not expect to win

Last year alone, hundreds of adverse rulings were slapped upon scores of companies, resulting to millions of
liabilities. It is sad to note that many employers today, either abetted by their HR and personnel managers, or
against the professional advice of HR and lawyers, do not really adhere to the provisions of the Labor Code, on
the rules of dealing with their own workers in the matter of discipline and dismissal. Despite all the seminars,
workshops and symposia, that HR personnel attend regularly, management never seems to learn. The result
could be very damaging, if not disastrous. An adverse decision by the NLRC and the Supreme Court entails not
only an order to reinstate workers and pay them full backwages but also moral and exemplary damages. The
greatest damage is upon the good name and corporate image and goodwill of the companies, or an irreparable
damage on the harmonious relations between employees and management, resulting to declines in
productivity, quality and profits.

To help address this problem, this writer is now embarking on an advocacy through the PMAP, the official
association of people managers in order to address this problem. Last week, I was in Baguio, then to Iligan.
Today, I am in Davao then later this week, to Cagayan de Oro, in July in Tacloban, Bicol and Batangas. By
August, I will conduct seminars in Cebu, Mandaue, and Mactan on the critical need to go back to the rule of law
in leading and managing people. I have 10 commandments on employee discipline and dismissal. First,
management should respect the workers' rights in the exercise of the employers' prerogatives to hire and fire
people, to transfer, promote and demote. The Labor Code is explicit and unequivocal. The DOLE, NLRC and
the Supreme Courts are strict and uncompromising.

The second commandment is that management should adhere to the specific just causes for termination of
employment, under Article 282 of the Code, like serious misconduct, insubordination, fraud, breach of trust,
gross and habitual negligence and crimes. Third, employers should follow the authorized causes under Article
283, like redundancy and retrenchment, labor-saving devices and closures. Fourth, the strict rules on due
process, under Article 277 (b) should never be compromised. Fifth, management should always bear in mind
that, in illegal dismissal cases, it is the employers and not the complainants who have the burden of proof.
Sixth, the proof must be enough to qualify, under the law, and controlling doctrine, as falling within the quantum
of substantial evidence. In Cebu alone, many firms failed to comply with these basic principles.

The seventh commandment is that management should master the art and science of proper and adequate
documentation, from hiring to retiring. Legal forms should be prepared following the intricate procedures and
formalities. The advice of expert lawyers should be sought. Some lawyers may be excellent in criminal and civil
laws but are absolutely clueless in the practice of labor laws and labor relations. Any mistake could endanger
the viability of the business and the career of CEOs and COOs and some HR executives. Commandment
number 8 is the crucial choice of lawyers and consultants and the proper handling of labor cases before the
Labor Arbiters and the NLRC, the appellate and the Supreme Court. The ninth commandment is knowing how
to respond to summons, adverse decisions, writs of executions and other legal processes. Out of sheer lack of
knowledge or worse, lack of respect for law and fundamental workers' rights, many monumental mistakes had
been committed.

The tenth is for management to proactively train their executives, managers and HR staff how to avoid and
prevent cases to be filed against the company. A small investment in these forward-looking, developmental and
empowering seminars can go a long way in saving the business from the adverse effects of unfavorable court
rulings.

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