2013 (Labor Law) Bar Exam Questions: Multiple Choice Question 16

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XVI. Ricardo operated a successful Makati seafood restaurant patronized by a large clientele base for its superb cuisine and impeccable service. Ricardo charged its clients a 10% service charge and distributed 85% of the collection equally among its rank-and-file employees, 10% among managerial employees, and 5% as reserve for losses and breakages. Because of the huge volume of sales, the employees received sizeable shares in the collected service charge.

As part of his business development efforts, Ricardo opened a branch in Cebu where he maintained the same practice in the collection and distribution of service charges. The Cebu branch, however, did not attract the forecasted clientele; hence, the Cebu employees received lesser service charge benefits than those enjoyed by the Makati-based employees. As a result, the Cebu branch employees demanded equalization of benefits and filed a case with the NLRC for discrimination when Ricardo refused their demand.

XVI(1) Will the case prosper? (1%)

(A) Yes, because the employees are not receiving equal treatment in the distribution of service charge benefits.

(B) Yes, because the law provides that the 85% employees share in the service charge collection should be equally divided among all the employees, in this case, among the Cebu and Makati employees alike.

(C) No, because the employees in Makati are not similarly situated as the Cebu employees with respect to cost of living and conditions of work.

(D) No, because the service charge benefit attaches to the outlet where service charges are earned and should be distributed exclusively among the employees providing service in the outlet.

(E) N, because the market and the clientele the two branches are serving, are different.

XVI(2) In order to improve the Cebu service and sales, Ricardo decided to assign some of its Makati-based employees to Cebu to train Cebu employees and expose them to the Makati standard of service. A chef and three waiters were assigned to Cebu for the task. While in Cebu, the assigned personnel shared in the Cebu service charge collection and thus received service charge benefits lesser than what they were receiving in Makati.

If you were the lawyer for the assigned personnel, what would you advice them to do? (1%)

(A) I would advise the to file a complaint for unlawful diminution of service charge benefits and for payment of differentials.

(B) I would advise them to file a complaint for illegal transfer because work in Cebu is highly prejudicial to them in terms of convenience and service charge benefits.

(C) I would advise them to file a complaint for discrimination in the grant of service charge benefits.

(D) I would advise them to accept their Cebu training assignment as an exercise of the company’s management prerogative.

(E) I would advise them to demand the continuation of their Makati-based benefits and to file a complaint under (B) above if the demand is not heeded.

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