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PAMANTASAN NG LUNGSOD NG MAYNILA

University of the City of Manila


College of Engineering and Technology

CHAPTER 8 Legal Relations, Rights, and Responsibilities of Technical Men


A. EMPLOYMENT IN GENERAL

The employment of technical men in trade, business or professional work


is a contract and must contain all the essential features of a contract. Such contracts
are seldom written and are subject to the verbal agreements made when the
employment is consummated.
By definition, contract is a voluntary, deliberate, and legally binding agreement
between two or more competent parties. Contracts are usually written but may be
spoken or implied, and generally have to do with employment, sale, lease or tenancy. It
is evidenced by:
1. An offer
2. Acceptance of the offer
3. Valid consideration
If the length of employment is for an unspecified time, it may be terminated by
either party upon reasonable notice. Just what constitutes reasonable notice depends
on many things, such as the work period for one wage payment, the customs of the
particular type of business, or the customs of the particular type of business, or the
customs of a given locality. In some cases reasonable notice for employment
termination is specified by statute law.
If a certain notice of termination is required, such notice must be given by either
party who desires its termination, except when the employee is discharged for cause.
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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

Employment for a definite period unless soon terminated cannot be terminated prior to
the end of the period without proper cause.
If the employment is for certain definite period and the period is allowed to elapse
without notice, the law assumes a renewal of contract for a like period.
When an engineer is employed at a fixed salary for a fixed period of time and
during his employment additional duties are assigned to him, a claim for extra
compensation cannot be enforced unless there is an express agreement to that affect.
To assure compensation for services rendered it is important that the contract for
employment be made with those legally empowered to make such contracts. On the
other hand, the officials of a governmental agency cannot legally contract for services if
no appropriations are available for payment for the services.
DOLE: BOOK III CONDITIONS OF EMPLOYMENT
Chapter II, Article 93: Compensation for rest day, Sunday or Holiday work
1. Where an employee is made or permitted to work on his scheduled rest day,
he shall be paid an additional compensation of at least thirty percent (30%) of
his regular wage. An employee shall be entitled to such additional
compensation for work performed on Sunday only when it is his established
rest day.
2. When the nature of the work of the employee is such that he has no regular
workdays and no regular rest days can be scheduled, he shall be paid an
additional compensation of at least thirty percent (30%) of his regular wage
for work performed on Sundays and holidays.
3. Work performed on any special holiday shall be paid an additional
compensation of at least thirty percent (30%) of the regular wage of the
employee. Where such holiday work falls on the employees scheduled rest
day, he shall be entitled to an additional compensation of at least fifty per cent
(50%) of his regular wage.
4. Where the collective bargaining agreement or other applicable employment
contract stipulates the payment of a higher premium pay than that prescribed
under this Article, the employer shall pay such higher rate.
Chapter III, Article 94: Rights to Holiday pay
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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

1. Every worker shall be paid his regular daily wage during regular holidays,
except in retail and service establishments regularly employing less than ten
(10)
workers;
2. The employer may require an employee to work on any holiday but such
employee shall be paid a compensation equivalent to twice his regular rate;
and
3. As used in this Article, "holiday" includes: New Years Day, Maundy Thursday,
Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth
of July, the thirtieth of November, the twenty-fifth and thirtieth of December
and the day designated by law for holding a general election.
B. DISCHARGE
The matter of the discharge of an employee by an employer is not as simple as it
once was when about the only redress the employee had was a civil breach of contract.
In July, 1935, the National Labor Relations Act became law and made the
discharge of an employee for certain acts an unfair labor practice forbidden by the act.
In general an employee may be discharged for any of the following causes:
1.
2.
3.
4.
5.
6.
7.
8.

Insubordination
Dishonesty
Disloyalty
Drunkenness
Incompetence
General Neglect
Absence from work
Being a poor national security risk

DOLE: Termination of Employment


1. What is the right to security of tenure?
The right to security of tenure means that a regular employee shall remain
employed unless his or her services are terminated for just or authorized cause and
after observance of procedural due process
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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

2. May an employer dismiss an employee? What are the grounds?


Yes. An employer may dismiss an employee on the following just causes:
a) Serious misconduct;
b) Wilful disobedience;
c) Gross and habitual neglect of duty;
d) Fraud or breach of trust;
e) Commission of a crime or offense against the employer, his family or representative;
f) Other similar causes.
3. Are there other grounds for terminating an employment? What are they?
Yes. The other grounds are authorized causes:
a) Installation of labor-saving devices;
b) Redundancy;
c) Retrenchment to prevent losses;
d) Closure and cessation of business; and
e) Disease / illness.
C. PROFESSIONAL EMPLOYMENT
The relations of the professional man with his clients are confidential and
fiduciary. To prevent undue advantage from the unlimited confidence which such
relations involve, the law requires the utmost good faith in all transactions between the
parties. In accepting employment in a professional capacity, therefore, the individual
also accepts certain responsibilities without a special agreement.

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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

The engineer is the agent of his principal, and his responsibilities are those
established by the laws of agency. The engineer as an agent has the following
responsibilities:
1. He must possess the reasonable degree of skill, learning, and experience
ordinarily possessed by those in his professional position.
2. He must obey the lawful instructions of his principal.
3. He must use reasonable and ordinary care, diligence, skill, and knowledge.
4. He must use his best judgment
5. He must be honest
If the professional man neglects or fails to exercise any one of these
requirements and injuries or damages result from such neglect or failure, he is liable
under the law for such injury or damages.
Acceptance of employment is a warranty that the employee is competent to do
his work in a reasonably satisfactory manner and he will do it faithfully and in
accordance with lawful directions.
All persons, even professional men, are permitted mistakes, miscalculations, and
errors of judgment but only up to a certain point. If the mistakes, errors, or
miscalculations could have been avoided by reasonable skill and diligence, the engineer
is liable. The law also requires that all of those who practice engineering must acquire
sufficient ability to protect the public health and safety, and the engineer is therefore
responsible for all the consequence of these of his designs.
D. THE ENGINEER AS AN AGENT
Where an engineer or architect undertakes to supervise the construction of work,
as he becomes an agent of his client with the authority and subject to the liability of
agents.
The authority of an agent, unless otherwise known or limited, consists of:
1. Those powers directly conferred.
2. Incidental powers reasonably necessary to carry into effect the powers directly
conferred.
3. Powers which custom and usage have added to the powers directly conferred.

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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

4. Such other powers as the principal has by act, neglect, omission, or


acquiescence or permitted those dealing with the agent to reasonably believe he
has conferred.
5. Powers exercised by the agent and subsequently conferred by the principal.
E. THE ENGINEER AS AN ARBITER
By the terms of a contract an engineer or architect is clothed with discretionary or
quasi-judicial power. When an engineer acts as an arbiter or referee in the
determination of disputed questions or of matters of fact which appertain to the
completion of work or the basis of payment for the same.
F. OWNERSHIP OF PLANS, DESIGNS AND INVENTIONS
Unless otherwise specifically agreed, the plans for a structure will belong to the
owner when he has paid the engineer a reasonable price for his services, at least during
the time and for the purpose of construction.
The unauthorized of such plans by copying or building from them is held illegal,
unless they are published to the world, in which case, unless copyrighted, they become
public property.
The design, plans and inventions of an employee are the property of the
employer only if such ownership is agreed or reasonably implied. When a professional
designer is employed for the purpose of design, he has no rights in the design produced
during his employment; but the rights of discovery of a new method of process or
material would remain in the employee, although the employer might retain a license to
use them if the discovery was in the direct line of effort for which the designer was
employed.
G. NECESSITY OF EXPERT SERVICE
In litigation involving technical matters, it is commonly necessary for the parties
involved to call in engineers who are specially informed on the matter in question. This
is made necessary by the fact that the attorneys employed cannot be informed on the
many and diverse technical matters which they are called upon to present on the courts.
It is desirably that the attorneys employed on any technical case should have had
previous experience on similar cases.

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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

In any event technical litigation will ordinarily require expert service for the
purpose of:
1.
2.
3.
4.

Consultation in regard to the technical details involved.


Assistance in the preparation of the case
Assistance in the examination of technical witnesses by the attorney.
Testifying as an expert witness.

Expert Witness

Expert evidence presented to the Court should be, and should be seen to be, the
independent product of the expert uninfluenced by the pressures of litigation.

An expert witness should provide independent assistance to the Court by way of


objective unbiased opinion in relation to matters within his expertise. An expert
witnessshould never assume the role of an advocate.

H. CONSULTATION
In most cases where litigation arises concerning technical projects or affairs there
are certain questions involved which are more or less doubtful. These questions must
be determined by evidence concerning the facts in the case and often by the opinions of
men experienced in the particular subject as to the bearing of the facts on the points
issue.
When the engineer is called in on such matters, he should, before he expresses
an opinion in regard to the point at issue, determine all the facts in the case and all the
conditions which surround it and, after careful deliberation and study, deduce the logical
conclusions.
Engineer as an Expert Advisor:
Appointed to give an initial opinion on a claim and to determine:

The factual evidence and the type of case that may be pursued with this
evidence.
The technical strengths and weaknesses of the clients case.
The basis of technical arguments which may be included in a claim submission.
Any measures to mitigate loss, if weaknesses are present in the clients claim.

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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

Promote settlement, if possible, prior to any litigation process.

How to perform his/her role properly:

Evaluate all documentation and evidence.


Perform a site inspection
Prior to providing conclusions, thoroughly determine all technical issues,
Advise the client on conclusions.
Advice must be balanced and independent as the Expert Advisor may be
required to act as an Expert Witness.

I. PREPARATION OF THE CASE


The engineer may be of great value in the preparation of the case for courts
presentation:
1. Formulation of Claim/Development of Expert Opinion:

An opinion cannot be developed without first analysing all the factual information.
Problems (Damage/Defects) must be identified and what/who caused these
problems.
Preliminary opinion is formed and presented in a report; subsequently an expert
court report will be produced as the basis of oral testimony.
This opinion may be exchanged with the opposing party to narrow issues in
dispute or lead to settlement of the dispute.

2. Forensic Analysis of Facts:

All documents should be original and presented in chronological order by date


i.e. Timeline of events.
Useful documents for analysis include:
a. Original Contract documents including; Tender documentation including
bills of quantities, Design reports including calculations e.g.
geotechnical reports etc., Specifications, Construction drawings,
Any correspondences.

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PAMANTASAN NG LUNGSOD NG MAYNILA


University of the City of Manila
College of Engineering and Technology

Engineers instructions and any site instructions, requests for further information,
Variation or change orders for the construction works,
Issued certificates; whether interim or final,
Site diaries, daily and/or weekly reports, quality assurance records and site test
results,
Site meeting minutes, applications for payment, accounts and final accounts,
Asbuilt records.
Further aspects for forensic analysis: Obtain evidence from manufacturers
materials & products, Construction photographs.
Design and Construction methodologies to determine whether best practice was
used and include a review of: Relevant codes of practice; Technical journals;
Manufacturer guidelines; Employer or project requirements ;Any legislative
requirements.

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