2013 (Labor Law) Bar Exam Questions: Question 4

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Bobby, who was assigned as company branch accountant in Tarlac where his family also lives, was dismissed by Theta Company after anomalies in the company’s accounts were discovered in the branch. Bobby filed a complaint and was ordered reinstated with full backwages after the Labor Arbiter found that he had been denied due process because no investigation actually took place.

Theta Company appealed to the National Labor Relations Commission (NLRC) and at the same time wrote Bobby, advising him to report to the main company office in Makati where he would be reinstated pending appeal. Bobby refused to comply with his new assignment because Makati is very far from Tarlac and he cannot bring his family to live with him due to the higher cost of living in Makati.

(A) Is Bobby’s reinstatement pending appeal legally correct? (4%)

(B) Advise Bobby on the best course of action to take under the circumstances. (4%)



  1. no. for there to have a valid order of reinstatement pending appeal, there must be a finding of illegal dismissal on the part of the employer.

  2. A) Yes, reinstatement pending appeal is correct. Order of reinstatement is immediately executory, even pending appeal.

    B) Bobby should accept the reinstatement. Management prerogative where to assign the employee, so long as there is no diminution of benefits and rank.

  3. A. Same as astra.

    B. Bobby can demand that he shall be admitted back to work under the same terms and conditions prevailing prior to his dismissal. Although the transfer of an employee is a management prerogative, it should not be exercised in bad faith as a form of penalty.

    1. A transfer of work assignment without any justification therefor, even if respondent would be presumably doing the same job with the same pay, cannot be deemed faithful compliance with the reinstatement order. Pfizer case, 2011

  4. Is Bobby’s reinstatement pending appeal legally correct? (4%)

    No. This is tantamount to constructive dismissal.

    ” A transfer amounts to constructive dismissal when the transfer is unreasonable, unlikely, inconvenient, impossible, or prejudicial to the employee. (Phil. Industrial Security Agency Corp. vs. Aguinaldo, G.R. No. 149974, June 15, 2005.) ”

    In the case at bar, petitioner was validly relieved from his post for violating a company policy. The petitioner did not contest this violation as he in fact admitted to committing it during the investigation, though with a valid and plausible explanation. What tarnishes the whole scene is the fact that after petitioner was relieved from his old post in Santiago City, Isabela, he was temporarily reassigned to the head office of private respondent PISA in Malabon, Metro Manila pending the opening of another bank in Isabela (Rollo, p. 60). This act is unfair and downright oppressive considering that petitioner, along with his family, is a long-time resident of Santiago City, Isabela. The transfer would mean that petitioner would be away from his family or that he would bring his entire family to Manila entailing expenses. Further, it remains unclear if petitioner would be reassigned back to Isabela, as the said plan remains ambiguous for it is not clearly shown when the said reassignment would take place. In the Notice given to petitioner, it is stated that his reassignment to Manila is good for 179 days and maybe renewed after its expiration. We cannot give evidentiary weight to private respondent PISA’s claim that petitioner will be reassigned back to another branch in Isabela as no evidence to that effect was offered.

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