legal Free Legal Advice

[fauxhead]

check serrano case.

 

@miss manners: details please. what wrong reasons?

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Serrano was a case decided in January 2000. Agabon just last November 2004. An excerpt from the decision:

 

Agabon vs NLRC GR 158693, November 17, 2004

 

After carefully analyzing the consequences of the divergent doctrines in the law on employment termination, we believe that in cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal was for just cause but imposing sanctions on the employer. Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing so, this Court would be able to achieve a fair result by dispensing justice not just to employees, but to employers as well.

 

The unfairness of declaring illegal or ineffectual dismissals for valid or authorized causes but not complying with statutory due process may have far-reaching consequences.

 

This would encourage frivolous suits, where even the most notorious violators of company policy are rewarded by invoking due process. This also creates absurd situations where there is a just or authorized cause for dismissal but a procedural infirmity invalidates the termination. Let us take for example a case where the employee is caught stealing or threatens the lives of his co-employees or has become a criminal, who has fled and cannot be found, or where serious business losses demand that operations be ceased in less than a month. Invalidating the dismissal would not serve public interest. It could also discourage investments that can generate employment in the local economy.

[Butsoy]

j s j99

 

Fauxhead already substantially answered your query...(scroll up this page) if you are not satisfied yet.. we can schedule you for a client interview but you will pay the Lawyers fees of our MTC lawyer....hehehehe...

 

 

Thanks sa mga reply

 

Guys I am not refering to dangerous drugs. or drug na pampa2log. or prohibited drug.

 

I am referring to those that can be readily bought from sexshop na pampainit or pampaarouse ng katawan.

 

If for example you are not satisfied with the performance of your partner. Pinainum mo siya or pinapahid mo with out her knowing it para maging horny, is one liable under the law? If so ano charge?

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[bonito99]

Thank you for the legal updates.

[fauxhead]

Your case, as pertains to the company, is governed by Art 2180 and 2181 of the New Civil Code. The employer of the truck driver shal be liable for damages done by his employees done in the course of the employment and acting upon their assigned tasks. The company is liable to pay for the damages caused to third persons. The employer, on the other hand, can charge the employee the amount he paid.

 

As for the insurance, do not allow the company to pay for the participation. This might get complicated. When the time has come for the insurance company to sue the company, the company might argue that when you agreed for them to pay the participation, you already allowed or consented that the company be absolved of its liabilities. Baka sasabihin nila na compromise na yun releasing them of their liability. Ikaw ngayon ang babalikan ng insurance company mo for undercutting their right to go after the people who caused the damage.

 

Therefore, you are left with two choices. Sue the driver and the company or collect on your insurance.

 

On the first option, you can file a criminal complaint for reckless imprudence resulting to damage property against the driver, pasok na dito yung civil liability ng employer. You can also file a civil case for damages against the driver and the company. However, you can collect only on one. Pero kung mahabagin ka at baka maawa ka sa tangang driver na tiyak mawawalan ng trabaho, yung second na lang. Tutal, accidents do happen.

 

On the second, collect ka na lang from the insurance para bawas sakit ng ulo. Sila na bahala maghabol dun sa company at sa driver because by paying you, subrogation sets in and the right to go after the company and the driver passes to them.

 

The strength of the case depends on the evidence presented. Because hindi naman nakapresenta evidence dito, bahala na yung abogadong kukunin mo to make a strong case.

 

The attorney's fees stated in decisions of courts, based on percentage of the total award for the damages, does not go to the lawyer. It goes to you. Baka kasi may ibang usapan kayo ng abogado mo. Malay mo, sa kasong ito kunin mong abogado galing sa malalaking law firm, malamang yung bayad mo sa kanila mas malaki pa sa makukuha mong damages.

 

 

good day MTC legal team. i need some insight on this matter:

more than a month ago, my car was hit by a truck. the driver of the truck was the one at fault and this was also indicated on the police report. as usual, i forwarded all the necessary documents to my insurance. i went out of the country for a few weeks thinking my insurance would handle everything and my car will be ready for the repair shop once i get back.

 

when i finally got back, i was informed that the insurance of the other party was only TPL so they can't do anything about it except i claim it as own damage and pay the participation. i took my car to a rep*table shop to have it estimated on how much the repair would cost. then i called up the other party and spoke with the one handling the company's trucks and drivers.

 

i told him that his driver hit my car and their company should pay for the damages. he started arguing that the company is not going to pay for it since the one driving their truck was the driver and it was the driver's fault and should be the one liable for it. he also argued that it was the driver who appears at fault on the police report and it was the driver's signature that appears on the police report. he even said that, it's their company's policy to let the driver pay whenever they get involve in collisions that's why they only used TPL in their fleet of trucks so the driver would be more careful on the streets.

 

i argued back that the company have some kind of liability and responsibility on the actions of their drivers and they could not just let the driver face the problem alone especially when the one i spoke to confirm that the driver might not be able to afford the payment.

 

he told me that since it involves a huge amount(21k+), the driver won't be able to pay up and so he insisted that my car's fender undergo "pukpok" instead of replacing which i strongly refused. i don't trust their repair shop as well as my insurance's accredited repair shop that's why i only go to this one rep*table shop all these years. besides with that kind of damage, repairing it will not suffice.

 

he suggested that i claim against my insurance and they will pay for the participation but i don't find it fair since i'm not going to the accredited shop of my insurance and they would opt for cash settlement which will surely have a depreciated amount that the estimated cost.

 

a friend of mine told me that if i claim it against my insurance and let the offending party pay for my participation, my insurance would still go after the offending party so i'd be better off if i just claim it on my insurance. is this true? won't the offending party sue me for agreeing on letting them pay for my participation and then my insurance would go after them later on?

 

so, is the company not liable at all? is his argument valid at all? what kind of case should i file against them? do i have a strong case? does the company automatically pays for my attorney's fee as well should the case rule in favor of me? any other things i should know of?

 

any info will be appreciated.

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[cdma]

I beg to disagree. Agabon vs NLRC (Nov 2004) brought back the Wenphil Doctrine or Belated Due Process Rule whereby dismissal for a sufficient cause (those included Art 282) but failure to observe the due process requirements only makes the employer liable for damages.  Thus, an employee dismissed for a valid cause but was not given due process can only claim for damages. He cannot ask for reinstatement and backwages.

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Mea Culpa. I should be more careful in stating my opinions. You are absolutely correct that where the dismissal is for a just cause( Art.282) or authorized cause(Art.283 & 284) failure to observe the due process requirements does not make the dismissal void. This failure results only in sanctions.

 

It is likewise correct to say that the Agabon case reversed Serrano and went back to Wenphil. It must be added that Agabon also modified Wenphil insofar as the extent of the sanctions. The Court opined that the damages to be imposed on the employer must be stiffer than that previously imposed in Wenphil to discourage the Dismiss Now Pay Later attitude of employers.

 

Let me add that when the cause is authorized rather than just, the Court in Jaka vs.Pacot said the sanctions must necessarily be stiffer still because the dismissal was in connection with the employer's exercise of management prerogatives.

 

Thanks again fauxhead :thumbsupsmiley:

[wildswans]

fauxhead,

 

thanks for the info but i do have some more questions regarding what you said which i don't quite understand.

 

Therefore, you are left with two choices. Sue the driver and the company or collect on your insurance.

 

On the first option, you can file a criminal complaint for reckless imprudence resulting to damage property against the driver, pasok na dito yung civil liability ng employer. You can also file a civil case for damages against the driver and the company. However, you can collect only on one.

 

so you mean there will be two charges that i can choose from, which is file a criminal complaint for reckless imprudence resulting to damage property against driver at pasok na dito ang civil liability ng employer OR file civil case for damages against the driver and company? if so, what's the difference between the two and which one is a better case to file? what do you mean by "you can collect only on one"?

 

On the second, collect ka na lang from the insurance para bawas sakit ng ulo. Sila na bahala maghabol dun sa company at sa driver because by paying you, subrogation sets in and the right to go after the company and the driver passes to them.

 

if i choose this option and collect from insurance, that means i fork out the participation from my own pocket and call it a day at bahala na yung insurance maghabol sa kanila? just curious, why pa sila hahabulin ng insurance, if i collect from them na? i don't understand this.

 

The strength of the case depends on the evidence presented. Because hindi naman nakapresenta evidence dito, bahala na yung abogadong kukunin mo to make a strong case.

 

so you mean, the outcome of the case will still depend on how good my lawyer will be at hindi sure win ito maski na nakalagay sila ang at fault sa police report? also, if i sue them, can i sue for additional damages like attorney's fees and other relevant charges? or just the case to get my car fixed?

 

The attorney's fees stated in decisions of courts, based on percentage of the total award for the damages, does not go to the lawyer. It goes to you.

 

i don't get this also, you mean if i won and the other party pays up, i still have to pay my lawyer from my own pocket? hindi ko kasi naintindihan yung nabanggit mong percentage.

[fauxhead]

wildswans,

 

Ok, let me clarify. You actually have three choices, shinort-cut ko na lang for practical purposes. First, you have the option to sue the driver for reckless imprudence resulting to damage to property where the employer of the driver is liable, alongside the driver, for the damages caused. Second option is to file a civil suit for damages against the driver and the company. Third option, file them both. Hindi ko na sinama yung third option because masyado magastos na magfile ka ng dalawang case pero isang beses ka lang makakakolekta ng damages. Halimbawa, naifile mo pareho, manalo ka sa civil case at makolekta mo yung damages, pagdating dun sa criminal case, hindi na isasama ng judge sa decision yung civil liability. You can collect only once dahil isang beses ka lang naman nadamage.

 

Ang difference nila lies on the nature of the complaints. Dahil criminal yung nature ng reckless imprudence, you need to prove the guilt of the driver beyond reasonable doubt. Sa civil case, preponderance of evidence lang o kung sino yung mas convincing na evidence, yun ang panalo. Dahil nga mas mataas ang requirement ng criminal case, generally mas matagal yung kaso.

 

As for the insurance part, what i meant was collect from the insurance company. Kapag nagbayad na yung insurance sa iyo, sila na ang maghahabol dun sa driver at sa company for the damages. Kapag kumolekta ka ng insurance, wala ka nang karapatang habulin for damages yung driver at company. By collecting from the insurance company, you are passing the right to collect for damages from the persons who caused the damage to the insureance company. bawas sakit ulo yun kasi may pera ka na pampaayos ng sasakyan mo, hindi pa sasakit ulo at bawas gastos kung ikaw mismo ang magpa-file ng kaso. Yan ang dahilan kung bakit malaki kita ng mga accident insurance companies. Kung walang aksidente, yung premium mo derecho sa bulsa ng insurance company. Kung merong aksidente naman, magbabayad nga sila pero pwede nila kolektahin yung ginastos nila dun sa nag-cause in accident.

 

Walang sure win na kaso. Kung meron, baka mawalan na ng trabaho mga abogado. The police report is just one piece of evidence. It can even be discredited or its probative value lessened.

 

If you win, attorney's fees, along with the other expenses arising from the suit, are awarded so that the losing party ultimately shoulders the cost of the suit. It is based on a certain percentage of the total award. Kasama yung attorney's fees na iaaward sayo, hindi ito mapupunta sa abogado mo. Yung bayad mo sa abogado ngayon, depende sa usapan nyo. Hindi naman pwede i-bill ng abogado mo yung losing party, hindi nya naman nakausap yun eh.

 

 

fauxhead,

 

thanks for the info but i do have some more questions regarding what you said which i don't quite understand.

so you mean there will be two charges that i can choose from, which is file a criminal complaint for reckless imprudence resulting to damage property against driver at pasok na dito ang civil liability ng employer OR file civil case for damages against the driver and company? if so, what's the difference between the two and which one is a better case to file? what do you mean by "you can collect only on one"?

 

On the second, collect ka na lang from the insurance para bawas sakit ng ulo. Sila na bahala maghabol dun sa company at sa driver because by paying you, subrogation sets in and the right to go after the company and the driver passes to them.

 

if i choose this option and collect from insurance, that means i fork out the participation from my own pocket and call it a day at bahala na yung insurance maghabol sa kanila? just curious, why pa sila hahabulin ng insurance, if i collect from them na? i don't understand this.

so you mean, the outcome of the case will still depend on how good my lawyer will be at hindi sure win ito maski na nakalagay sila ang at fault sa police report? also, if i sue them, can i sue for additional damages like attorney's fees and other relevant charges? or just the case to get my car fixed?

i don't get this also, you mean if i won and the other party pays up, i still have to pay my lawyer from my own pocket? hindi ko kasi naintindihan yung nabanggit mong percentage.

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[Kurtsky Keigee]

could it be that my vid card or ram is busted?

what could be wrong with the floppy?

i raely use it..at hinde ako marunong magbukas ng pc ko

 

wait ko nlgn technician

Edited September 9, 2005 by kUrTsKY

[deus]

could it be that my vid card or ram is busted?

what could be wrong with the floppy?

i raely use it..at hinde ako marunong magbukas ng pc ko

 

wait ko nlgn technician 

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Vid card and ram has nothing to do with it. If your vid card is fried or something, you will have no screen just the powerlight blinking on your monitor. Ram, the only way to bust a ram is to fry it with electricity from your PC volt settings in the BIOS, otherwise by trashing it during handling.

 

to look for the noisy part is to open the PC case and boot.

[wildswans]

fauxhead,

 

thank you very much for the detailed explanation. i appreciate it. :cool:

[countrystyle]

i have a problem here

 

Recently my PC started up with a grinding sound so i turned it off,

turned it on again after 1 minute ganun padin. I left my PC unused for couple of days tas ok na. What do you think is the problem. My hard disk has been unstable for white sometime now pero ngayon ok naman.

If hard disk or memory and may sira, posible kayang if i do memory intensive stuff or things that will make my PC use up more resources like games then baka may chance na may masunog sa loob or may masira?

Thanks in advance. Anyway i plan to upgrade rin naman soon just asking.

<{POST_SNAPBACK}>

 

palagay ko power supply yan. nangyari sa kin yan dati, minsan maingay, minsan tahimik. eventually, the power supply broke down and i had to replace it.

[Kurtsky Keigee]

changed the hard disk & memory..seems ok now..

galing nga eh mas mataas ung clock speed nung memory na linagay ko sa pc ko pero nag adjust mag isa ung ram..ayan di ko na kelangan tapon old memory ko..mas bumilis..hehe astig

 

ano pala ko na budget geforce video card ung mga 4-5k ung tatagal at gagana rome,farcry etc ng ok.. hehe

[Kurtsky Keigee]

I recently reformatted my pc and added a ne wmemory stick but when i startup C&C generals : ZH,

after the splash intro screen it crashed back to the desktop

Can anyone help me out with this?

Before gumagana naman

 

[webmaster_ph]

Maybe its the fan in the PS. Try checking the exhaust fans @ the casing 2. By the way, if you need hard-to-find s/w(warez),video,audio then pm me. Give me a week to prepare, only P200 per CD.

[-=extreme=-]

I recently reformatted my pc and added a ne wmemory stick but when i startup C&C  generals : ZH,

after the splash intro screen it crashed back to the desktop

Can anyone help me out with this?

Before gumagana naman

 

<{POST_SNAPBACK}>

 

Have you tried to remove the additional memory you put is it the same? Have check the video card driver/direct x software installed. Before you upgrade reformat does the game works fine?

[Kurtsky Keigee]

before i upgraded my pc and reformatted it the game works fine..

di ko nag magets eh..i upgraded video card drivers too to the latest ones..

il try to downgrade video drivers and see if it works..

hw bout if i reinstall the game?

[kramski]

I recently reformatted my pc and added a ne wmemory stick but when i startup C&C  generals : ZH,

after the splash intro screen it crashed back to the desktop

Can anyone help me out with this?

Before gumagana naman

 

<{POST_SNAPBACK}>

 

 

after you reformatted your pc dapat reinstall mo rin lahat ng upgrades na inilagay mo dati like patches from games and drivers.

[kramski]

i have a problem here

 

Recently my PC started up with a grinding sound so i turned it off,

turned it on again after 1 minute ganun padin. I left my PC unused for couple of days tas ok na. What do you think is the problem. My hard disk has been unstable for white sometime now pero ngayon ok naman.

If hard disk or memory and may sira, posible kayang if i do memory intensive stuff or things that will make my PC use up more resources like games then baka may chance na may masunog sa loob or may masira?

Thanks in advance. Anyway i plan to upgrade rin naman soon just asking.

<{POST_SNAPBACK}>

 

 

kapag maingay like cracking sounds, i think that sounds eminates from any rotating source like harddisk lalo na kapag nagbabasa or sumusulat siya sa disk. kasi parang ganun din ang tunog kapag nagbabasa ang floppy disk at cdrom.

[oliverjohnholmes]

Pañeros and pañeras:

 

I have a bit of a problem, my knowledge on labor law is rusty at best. I seek the learned opinions of esteemed colleagues in MTC.

 

Firstly, if a probationary employee has passed the perfromance appraisal, albeit barely (76 on passing rate of 75 out of 100), is the employer without recourse to terminate him?

 

Secondly, may an employer validly refuse the issuance of a property clearance and/or COEs of an employee who resigned abruptly (meaning non compliance with 30 day notice rule)?

 

Finally, a contractual employee has finished his contract and is being eyed for a more permanent employment by the owner. Since the contract of employment included a premium (since no other benefits accrue, a 10% premium was added on top of the normal salary rate for the position), would there be a diminution of benefits if the employee goes through the normal probationary status (6 months) and the 10% premium was removed?

 

I have an idea of the attack, just seeking other learned opinions.

 

Thanks!

 

linus larrabee

 

 

Two roads diverged in a wood, and I--

I took the one less traveled by,

And that has made all the difference.

- Robert Frost, “The Road Not Taken”(1920)

[bonito99]

you don't have to study for it.

[tentacle]

hello, shadowfang!

 

good luck. just remember, when asked if you hear voices at night, your answer should be no.

 

seriously though, if i remember right, the entrance exam for ateneo law focuses on your capability to analyze facts. so if you really want to study for it, you may want to review your intro to logic books. (but you know what? no one i know ever studied for the ateneo law entrance exams. and believe me, i know a lot of people who studied or who are studying there.)

 

i just noticed that you were interested in getting a scholarship. if you want to go to a good law school but you are worried about the costs, you may want to take the UP LAE.

 

while there are scholarships offered in ateneo law, the cost of studying there is a bit high. the campus is in rockwell. so, unless you're planning to eat at home all the time, you'll be spending at least P20 more for each meal. they also require students to wear business attire. so if you're male, be prepared to buy or have barongs made. if you're female, ok na ang slacks and blazers.

[bukoloids]

Hi! Anyone here has a syllabus of "Dean Cesar Villanueva's" corporation law outline?I badly need it. Im currently taking up law in a lesser known school. I am really weak in commercial law. If anyone here could give me an ATENEO OR UP reviewer on mercantile law especially their magic notes. If you have Tristan Katindig's notes please forward me some.Thanks more power to MTC

[LonelyGuy]

sir is this anyway na mapadali annulment? i mean the cost and time? and totoo ba dati yung mga issues na pwede ioa bunot ang papers sa census and cityhall, i mean to erase all necessary records and then ok na lahat ... share some info po please ... advance thanks

[boibastos]

Hi tentacle! I'll keep that in mind,,,

 

I heard the test includes cases, where you'll decide if a certain law applies to it,,,

 

Actually, it's not studying. It's more of preparing.

 

I also like UP Law. However, I feel I'll be more comfortable in AL.

It's worth the cost. Really costly, though.

 

Thanks a lot!  :cool:

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Remember this, if you don't know the answer right away to any number, skip it and move on to the next. Balikan mo na lang later. Time management is half the battle. Oh, and get a good night's sleep the night before. Sluggish brain equals wasted application fee.

[tentacle]

Hi tentacle! I'll keep that in mind,,,

 

I heard the test includes cases, where you'll decide if a certain law applies to it,,,

<{POST_SNAPBACK}>

 

Oh, that. Don't worry, you don't have to review laws. The questions are structured so that it first discusses the law (or quotes a provision of law) then you're given several situations. You'll have to determine if the law discussed applies to the situations given. So, all you really need to do is to understand the law.

 

I also like UP Law. However, I feel I'll be more comfortable in AL.

It's worth the cost. Really costly, though.

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My thoughts exactly. And it also helped that AL is so organized that you don't really have to deal with stuff other than studying (or having fun.)

 

And boibastos is right, have plenty of sleep and eat breakfast before the exam. It's difficult to answer questions when you're sleepy or hungry.