legal Free Legal Advice

[jake_roxas]

boss jake roxas, please help me out.

 

i was once flagged down by a cop manning a checkpoint. was asked to step down but i refused to abide since there was no reason to do so. after a heated exchange of words, this cop pulled out his service firearm and pointed it to my face. luckily, a concerned motorist passing by shouted "hoy, bawal yan!" which made the cop stand down. i'm in the process of filing a criminal case against this cop. however, i also want to file an adminstrative case. question is, where do file it aside from the ombudsman? should it be with the concerned PLEB, NAPOLCOM or IAS? thanks bro

 

please call the IBP Legal Aid office for immediate assistance.

 

I suppose you can file with as many agencies/tribunals as you want as long as you tweak your causes of action to fall under the jurisction of each agency.

 

Thanks.

[agentjackbauer]

Thanks Rocco, now I remember, ha ha.

[Dr_PepPeR]

Articles 1876-1880 of the Civil Code are the provisions relevant to your query.

 

Art. 1876. An agency is either general or special.

The former comprises all the business of the principal. The latter, one or more specific transactions. (1712)

 

Art. 1877. An agency couched in general terms comprises only acts of administration, even if the principal should state that he withholds no power or that the agent may execute such acts as he may consider appropriate, or even though the agency should authorize a general and unlimited management. (n

 

Art. 1878. Special powers of attorney are necessary in the following cases:

(1) To make such payments as are not usually considered as acts of administration;

(2) To effect novations which put an end to obligations already in existence at the time the agency was constituted;

(3) To compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of an action or to abandon a prescription already acquired;

(4) To waive any obligation gratuitously;

(5) To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration;

(6) To make gifts, except customary ones for charity or those made to employees in the business managed by the agent;

(7) To loan or borrow money, unless the latter act be urgent and indispensable for the preservation of the things which are under administration;

(8) To lease any real property to another person for more than one year;

(9) To bind the principal to render some service without compensation;

(10) To bind the principal in a contract of partnership;

(11) To obligate the principal as a guarantor or surety;

(12) To create or convey real rights over immovable property;

(13) To accept or repudiate an inheritance;

(14) To ratify or recognize obligations contracted before the agency;

(15) Any other act of strict dominion. (n)

 

Art. 1879. A special power to sell excludes the power to mortgage; and a special power to mortgage does not include the power to sell. (n)

 

Art. 1880. A special power to compromise does not authorize submission to arbitration. (1713a)

 

Clearly, hindi pwede ang GPA sa lahat ng transaksyon. For the transactions listed in 1878, kailangan ay SPA.

 

A simple expedient is to simply put all the special powers in one agency agreement. You must be as specific as possible especially when it involves a sale or disposition of the principal's property and when dealing with banks.

[complicated8]

long bootup with resources full.

 

I installed quicktime (free) and then di nag-install ng maayos so nag uninstall ako but failed. SO nag delete ako ng mga folders/files.

 

Now ito ang na-encounter ko. Yung DVD-ROM ko wala na sa list of devices and yung ethernet/lan ports ko disabled din

 

How can I fix this?

[kelvin]

I installed quicktime (free) and then di nag-install ng maayos so nag uninstall ako but failed. SO nag delete ako ng mga folders/files.

 

anong files ba ang na delete mo??? please give more details... bka kasi system files ng windows ang na delete mo. hope not.

 

Now ito ang na-encounter ko. Yung DVD-ROM ko wala na sa list of devices and yung ethernet/lan ports ko disabled din

 

How can I fix this?

 

Medyo madali lang ito:

 

1. Highlight my computer, right click and choose manage

2. go to device manager (magbabago ung right pane)

3. on the root computer, highlight again and right click... choose scan for hardware changes (para sa DVD rom mo)

4. about sa NIC card, go to network adapters subdirectory

5. right click the NIC card applet then choose enable

 

You can also enable the nic sa network connection

 

Hope nasagot ko ng maayos yung query mo...... :headsetsmiley:

 

[_Pabling]

long bootup with resources full.

 

I installed quicktime (free) and then di nag-install ng maayos so nag uninstall ako but failed. SO nag delete ako ng mga folders/files.

 

Now ito ang na-encounter ko. Yung DVD-ROM ko wala na sa list of devices and yung ethernet/lan ports ko disabled din

 

How can I fix this?

 

have you tried system restore??? if not yun muna or you can follow kelvin's advise. HTH

[Guest xHANGMANx]

Do we have any Labor Lawyer in the House?

 

here is the scenario

 

If you resigned from your employer and they asked you to go on terminal leave 20 days before the effectivity of your resignation and you were not yet able to accomplish complete turn over of your responsibilities (any pending work, cash advances)

 

then you inquired how your clearance will be processed and they gave you a verbal assurance that they will take care of it

 

then after more than a month, they send you a letter listing down items that according to them you failed to accomplished and they are ordering you to explain why such were remained unfinished

 

am I still legally required to answer their queries?

 

if not answering their queries delays the issuance of my clearance, what are my legal options?

 

if I answered their letter with this "asking me to go on terminal leave is tantantamount of clearing me of any outstanding responsibilites", am I correct on this line of reasoning?

 

with my reasoning above, they send me a letter threatening criminal prosecution if I don't reply to their queries, do I have legal right to sue them and claim moral damages?

 

would appreciate your answer even if you are not a practicing labor lawyer

When they asked you to go on "terminal leave" 20 days prior to your intended resignation date, was this in writing? if so, you better keep that letter. If it was not in writing, I suggest you write them a reply letter and emphasized that you intended to make proper turn-over, liquidation and accounting but was pre-empted from doing so, when they directed you to go on terminal leave coupled with the assurance that your clearance would be properly taken care of.

 

I further suggest that you request for details and copies of supporting documents in connection with the supposed "list of items" that you were not able to finish before you reply to their inquiries and even before you make an explanation. While it would always be prudent to reply and give an explanation, however, try to ascertain first if the letter is "inquisitorial" or accusatory, that is, if you think that your explanation wont matter anymore and that the company is hell-bent on filing criminal cases against you, then, dont explain anymore. Just request for supporting documents. If you do decide to make an explanation, make it short and concise. Remember, less talk, less mistake.

 

Hope this helps.

Just gather all supporting documents stemming from the query, Dictum is right, less talk, less mistake. I think mostly verbal ang mga arrangements ninyo so it's a my word vs. yours kinda thing. No offense dude pero ang sa akin lang kasi, it doesn't necessarily follow na they gave you a terminal leave e pwede ka nang maging negligent sa duties mo. You knew this outcome was possible and yet you failed to prepare. Again tama si Dictum, honga....what's the use of explaining when they are hell-bent of filing a case against you.....fraud is one since may cash na involved. Kung pwede pang maareglo, sana maareglo....in the end, ikaw din ang talo sa scenario na ito......think of it this way, unless your hiding something, last hurrah na nila ito.....after this, you don't have to deal with them anymore....kung di naman ganun kabigat ang hinihingi nila sa yo, baka naman pwede mo na lang tapusin ang pwede pang tapusin...maglelegal action pa kayo e pwede naman pagusapan yan internally....less stressful yon

Excellent advice from the two gents. Prepare for a fight by documenting everything. The first step is asking for a bill of particulars or the specifics of your alleged offense. Also put in writing the fact that you were asked to take a terminal leave. Be careful of what you write down with the perspective that this can be used against you.

Since the instruction to go on terminal leave is merely "verbal", I suggest you document it by sending a letter emphasizing that you were pre-empted from making a proper turn-over because there was already a verbal directive to go on terminal leave coupled with the assurance that your clearance would be properly taken care of as a matter of course. You may further add, that you were made to understand that you have already been "cleared" of all employee obligations.

 

Also, please ask for documents in connection with their charges against you. Insist that without these documents, you would not be able to make an intelligent explanation of the charges against you.

 

Please remember to choose your words carefully having in mind that whatever you say may be used against you, in case, this develops into a full-blown legal matter.

 

Please keep us posted on development thru this site so we may be able to properly guide you on what steps to do.

 

Good luck.

 

 

 

 

 

it's almost three weeks since my brother in law answered all the accusations of his former employer

 

as of today, no reply/letter was received from the employer

 

my sister is growing impatient everyday, she wants to file a case with the NLRC

 

she already contacted a labor lawyer with regards to this

 

my sister doesn't care with any outstanding monetary claims that my brother in law may still have with the former employer

 

all she want is the employment clearance as my brother in law is applying for a job overseas

 

what should be our legal options right now?

 

and she wants to file claim for emotional distress

Edited September 13, 2006 by xHANGMANx

[jake_roxas]

Go ahead sign it. Its void anyway. He he. That provision is actually not a confidentiality clause but a non-compete (non-competition) one. Based on a very recent Supreme Court decision (I promise to look for it within the week), this non-compete clause may be deemed void for being vague and for overbreadth. There must be a definitiveness as to the area (territory) where one may not be employed plus I think 3 years is also too long for it to be valid. Anyway, before I rattle on from memory, I better stop and look for that darn case, ha ha.

 

Do check also if there is a provision for liquidated damages in your contract in the event that you breach it.

 

 

Hi Jack,

 

May we please have the title and the other details of this case? Thanks.

[Waterbearer]

Hi Jack,

 

May we please have the title and the other details of this case? Thanks.

I agree. I was also browsing at the SC website for court decisions relating to this but couldn't find one.....

 

The closest thing i got was an exact case but somewhere in LA i think

[pogingpogi2x]

may way ba para magamit ulit yung product ID ng Win XP SP2 para ma activate yung win xp mo?

 

na ka pag activate na kc ako b4 same product key pero this time dina pede yung isa... any help?

 

thanks

[agentjackbauer]

Patience paneros, I dont get paid for this, haha, just kidding.

 

I already told Jake to give me until Tuesday. If I dont have it by tomorrow then I must have imagined it, ha ha.

Edited September 18, 2006 by agentjackbauer

[jefoy]

problem: microsoft winmm wdm audio compatibility driver

this what i got when i windows update finish anyone help me on this? Before i had a sound and audio working in my skype but right now problem ko ito, i tried to re installed the driver na kasama ng mobo ko pero nde nya mahanap sa cd ung right driver ng "microsoft winmm wdm audio compatibility driver". I tried to uninstall and scan for hardwre changes then mag pop up ung audio device na yan but problem is corrupted at ung driver how can i fixed this?

[agentjackbauer]

Thanks for your patience gents. I've found it. Rivera vs. Solidbank Corp., G.R. No. 163269, April 19, 2006. Allow me to summarize the case.

 

Petitioner Rivera was an employee of Solidbank who availed of the company's retirement package and received the net amount of P963,619.28. Upon availment thereof, he was required to sign an Undertaking which stated thus:

 

"… I hereby expressly undertake that I will not seek employment with any competitor bank or financial institution within one (1) year from 28 February 1995."

 

At the time of his retirement, Rivera was the Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group. On May 1, 1995, despite his Undertaking, Rivera was employed by Equitable as its own Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group.

 

Solidbank sued Rivera for Sum of Money with a Prayer for Writ of Preliminary Attachment. On summary judgment, the trial court ruled in favor of the bank. The Court of Appeals affirmed the ruling in substance. It ruled that the contract was valid and constituted the law between the parties.

 

The SC found the petition meritorious but remanded the same to the trial court for reception of evidence. The SC made the following relevant rulings:

 

(1) "The issue as to whether the post-retirement competitive employment ban incorporated in the Undertaking is against public policy is a genuine issue of fact requiring the parties to present evidence to support their respective claims."

 

(2) "On the face of the Undertaking, the post-retirement competitive employment ban is unreasonable because it has no geographical limits; Rivera is barred from accepting any kind of employment in any competitive bank within the proscribed period. Although the period of one year may appear reasonable, the matter of whether the restriction is reasonable or unreasonable cannot be ascertained with finality solely from the terms and conditions of the Undertaking or even in tandem with the Release, Waiver and Quitclaim.

 

(3) The employer must establish that a restrictive covenant barring an employee from accepting a competitive employment after retirement or resignation is not unreasonable or oppressive, or in undue or unreasonable restraint of trade. The employer must show that the restriction is reasonable and not greater than necessary to protect the employer's business interests.

 

(4) The determination of reasonableness is made on the particular facts and circumstances of each case. Thus, the courts must have before it evidence relating to the legitimate interests of the employer which might be protected in terms of time, space and the types of activity proscribed.

 

(5) In determining whether or not the contract is reasonable, the trial court should consider the following factors: (a) whether the covenant protects a legitimate business interest of the employer; ( whether the covenant creates an undue burden on the employee; c ) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy.

 

(6) There is a distinction between restrictive covenants barring an employee from accepting a post-employment competitive employment (restraint on trade in employment contracts) and restraints on post-retirement in pension and retirement plans (contracts which provide that an employee who accepts post-retirement competitive employment will forfeit retirement benefits. The strong weight of authority is that forfeitures for engaging in subsequent competitive employment included in pension and retirement plans are valid even though unrestricted in time or geography.

[rocco69]

In amplification, the Supreme Court recognizes the validity of post-employment restrictions, so long as the same is REASONABLE.

 

In Ferrazzini v. Gsell (34 Phil. 697) [cited in the Rivera v. Solidbank case], the Supreme Court declared as an unreasonable restraint of trade a provision in the contract of employment that prohibited the employee for five years from the termination of employment from accepting ANY employment with any employer in the Philippines except upon prior written permission from the former employer.

 

The Supreme Court said that while the restraint was for five years only and covered employment only inthe Philippines, it was not limited to a specific trade. The employee would have had to leave the Philippines to obtain other employment if the former employer withheld his consent to the employee’s working elsewhere in country.

 

In Ollendorf v. Abrahamson (38 Phil. 585), the contract of employment prohibited the employee from accepting employment in any business similar to or competitive with that of the employer within the Philippines for five years from the date of the agreement. The employee engaged in the manufacture and sale of embroidered underwear for export in competition with the employer. The Supreme Court held that the former employee may be enjoined from engaging in these competing activities, reasoning that:

 

“the contract here in question. . . does not seem to us to be obnoxious to the rule of reasonableness. While such restraint if imposed as a condition of the employment of a day laborer would at once be rejected as merely arbitrary and wholly unnecessary to the protection of the employer, it does not seen so with respect to an employee whose duties

are such as of necessity to give him an insight into the general scope and details of his employer’s business.”

 

However, the Supreme Court staed in Ollendorf that a post-employment restraint prohibiting employees from engaging in ANY employment in the cosmetics, pharmaceutical and personal case industries, ANYWHERE and ANYTIME would be broad and unbounded restraint and would be unenforceable.

 

In G. Martini v. Glaiserman (39 Phil. 120) the Supreme Court declared that a stipulation that the employee, for one year after the termination of his contract, will not engage, for himself or others, in any business similar to that in which the employer may be engaged, is void as constituting an unreasonable restriction where it appears that the employer is engaged in a great variety of business enterprises, while the employee was working only in a minor branch of the business. The Supreme Court also rejected the employer’s claim that the employee should be restrained from engaging in any business identical to that in which he was employed, holding that an employment restraint which is greater than necessary for the protection of the employer is void IN ITS ENTIRETY and the employer cannot cure the invalidity by a waiver of the express terms of the stipulation and its election to limit the restraint to that which would have been permissible.

 

 

Thanks for your patience gents. I've found it. Rivera vs. Solidbank Corp., G.R. No. 163269, April 19, 2006. Allow me to summarize the case.

 

Petitioner Rivera was an employee of Solidbank who availed of the company's retirement package and received the net amount of P963,619.28. Upon availment thereof, he was required to sign an Undertaking which stated thus:

 

"… I hereby expressly undertake that I will not seek employment with any competitor bank or financial institution within one (1) year from 28 February 1995."

 

At the time of his retirement, Rivera was the Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group. On May 1, 1995, despite his Undertaking, Rivera was employed by Equitable as its own Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group.

 

Solidbank sued Rivera for Sum of Money with a Prayer for Writ of Preliminary Attachment. On summary judgment, the trial court ruled in favor of the bank. The Court of Appeals affirmed the ruling in substance. It ruled that the contract was valid and constituted the law between the parties.

 

The SC found the petition meritorious but remanded the same to the trial court for reception of evidence. The SC made the following relevant rulings:

 

(1) "The issue as to whether the post-retirement competitive employment ban incorporated in the Undertaking is against public policy is a genuine issue of fact requiring the parties to present evidence to support their respective claims."

 

(2) "On the face of the Undertaking, the post-retirement competitive employment ban is unreasonable because it has no geographical limits; Rivera is barred from accepting any kind of employment in any competitive bank within the proscribed period. Although the period of one year may appear reasonable, the matter of whether the restriction is reasonable or unreasonable cannot be ascertained with finality solely from the terms and conditions of the Undertaking or even in tandem with the Release, Waiver and Quitclaim.

 

(3) The employer must establish that a restrictive covenant barring an employee from accepting a competitive employment after retirement or resignation is not unreasonable or oppressive, or in undue or unreasonable restraint of trade. The employer must show that the restriction is reasonable and not greater than necessary to protect the employer's business interests.

 

(4) The determination of reasonableness is made on the particular facts and circumstances of each case. Thus, the courts must have before it evidence relating to the legitimate interests of the employer which might be protected in terms of time, space and the types of activity proscribed.

 

(5) In determining whether or not the contract is reasonable, the trial court should consider the following factors: (a) whether the covenant protects a legitimate business interest of the employer; ( whether the covenant creates an undue burden on the employee; c ) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy.

 

(6) There is a distinction between restrictive covenants barring an employee from accepting a post-employment competitive employment (restraint on trade in employment contracts) and restraints on post-retirement in pension and retirement plans (contracts which provide that an employee who accepts post-retirement competitive employment will forfeit retirement benefits. The strong weight of authority is that forfeitures for engaging in subsequent competitive employment included in pension and retirement plans are valid even though unrestricted in time or geography.

[jake_roxas]

As i see it, the SC has not finally ruled on this type of clauses. That is, there is no categorical ruling has been laid down yet. In fact, it remanded the case for further proceedings. The decision contains some parts which may be used by either party (employer vs. employee) to further their respective positions.

 

http://www.supremecourt.gov.ph/jurispruden...o.%20163269.htm

 

"In the present case, the trial court ruled that the prohibition against petitioner accepting employment with a competitor bank or financial institution within one year from February 28, 1995 is not unreasonable. The appellate court held that petitioner was estopped from assailing the post-retirement competitive employment ban because of his admission that he signed the Undertaking and had already received benefits under the SRP.

 

 

 

The rulings of the trial court and the appellate court are incorrect.

 

 

 

There is no factual basis for the trial court’s ruling, for the simple reason that it rendered summary judgment and thereby foreclosed the presentation of evidence by the parties to prove whether the restrictive covenant is reasonable or not. Moreover, on the face of the Undertaking, the post-retirement competitive employment ban is unreasonable because it has no geographical limits; respondent is barred from accepting any kind of employment in any competitive bank within the proscribed period. Although the period of one year may appear reasonable, the matter of whether the restriction is reasonable or unreasonable cannot be ascertained with finality solely from the terms and conditions of the Undertaking, or even in tandem with the Release, Waiver and Quitclaim."