PHILIPPINES

K to 12: Retrenched college teachers win case vs Miriam

College
(UPDATED) Miriam College President Rosario Lapus says the school, which 'has acted fairly,' will
appeal the decision of the Labor Arbiter

Jee Y. Geronimo @jeegeronimo

Published 8:58 PM, November 14, 2016
Updated 8:00 PM, November 17, 2016

MANILA, Philippines (UPDATED) The National Capital Region (NCR) arbitration branch of the
National Labor Relations Commission (NLRC) ruled in favor of two general education (GE) faculty
members who filed a case against Miriam College after they were retrenched by the school due to the
K to 12 program.

In a 17-page decision dated November 9, Labor Arbiter Julio Gayaman declared the retrenchment of
Rebecca Aonuevo and Ann Debbie Lao Tan as illegal.

Gayaman found that Miriam College "failed to adduce clear and convincing evidence to validate the
complainants' retrenchment."
"Since the school intended from the very beginning to get rid of the tenured GE faculty, no reasonable
criteria were formulated; the expected substantial loss was not proven; and no alternative measures
were used. In the end, the ultimate test of determining the vailidity of retrenchment whether it was
applied as a last resort is clearly wanting," read the decision.

Last June, the education department rolled out senior high school's Grade 11 nationwide. This resulted
to a drop in college enrollment that is expected to last until school year 2020-2021.

A month before the rollout or on May 10, Aonuevo and Tan were among the school's GE faculty
members who were served a notice of retrenchment, supposedly "as a measure to prevent economic
losses and further losses due to lack of enrollment and to ensure sustainability and viability."

As early as June 2014, Miriam College already offered its GE faculty members a voluntary early
separation program (ESP), supposedly in anticipation of the decline in enrollment due to the full
implementation of the K to 12 program.

By October 2014, the school made the ESP voluntary until June 2015, and mandatory by June 2016.
Some GE faculty members availed themselves of the voluntary ESP, while Aonuevo and Tan were
among those who stayed and continued to question the school's plans.

After they were retrenched, the two filed a complaint and contended that their retrenchment was
illegal. According to them, the school had not shown "clear and convincing proof that retrenchment is
necessary to avoid substantial financial losses."

They also pointed out that the school:

has not undertaken measures to prevent the retrenchment

is expanding in Nuvali, Calamba, and in Porac, Pampanga
is hiring new and/or concurrent administrative positions and increasing the salaries
of eligible employees
has "unnecessary, extravagant, and excessive expenditures" such as the school
president's frequent foreign trips to America and Australia, the team building of the
school president's council in Balesin Island Club, and the seminar of tenured faculty
and part-timers in Thailand

Miriam College, meanwhile, argued that due to the impact of K to 12 that could result to business
losses, it was "constrained to implement cost-cutting measures, including abolishing and merging
departments, personnel transfers and reorganization, as well as the retrenchment program."

The school even pointed out that for academic year 2016-2017, the freshmen and sophomores
enrollment already dropped from the annual average of 900 to only 95.

It maintained that the separation of the employees was "carried out in good faith as a necessary
consequence" of the K to 12 program.
'Ill will, bad faith, malice'

In his decision, Gayaman reiterated that retrenchment should be implemented only as a last resort,
and it should be a reduction of personnel.

"In this instance, there is no reduction of personnel, but an intention from the very beginning to wipe
out all GE faculty members," the decision read, pointing out that the announcement of the voluntary
ESP came at a time when the legality of the K to 12 was still being questioned at the Supreme Court,
and its implementing rules were not yet released.

"Over and above, from what is extant in the record, respondents undertook no alternative plans,
remedies, and actions. All that appears is the school's hard stance of cutting the GE faculty first."

Gayaman also slammed the school's rehiring program, wherein GE faculty members who will avail
themselves of the voluntary ESP may be rehired as part-time or contractual.

"Things being equal, even if the rehiring program would mean saving, since the rehired employees
would be paid much lower salaries, this scheme is simply circumvention on the employee's security of
tenure," the decision read.

Moreover, Gayaman noted that the school failed to present any substantial proof of projected loss.
While the school did make a "belated submission" of the projected loss, it was "unsigned and
unverified."

"Mere speculation about the impact of the decrease of students is not a proof that significant losses
will be incurred. It should be mentioned that not every loss incurred or expected to be incurred by an
employer can justify retrenchment. The certainty that the school will abate substantial losses if the
complainants' retrenchment will not be instigated cannot be concluded."

Gayaman even questioned how the school can justify its expansion in Calamba and Pampanga, as
well as the other issues raised by Aonuevo and Tan.

"One can only wonder why respondents similarly elected to retrench complainants, allegedly to foil
significant economic losses, when the school failed to cut administrative and operating costs."

Gayaman said the ESP proves that the faculty members' retrenchment was "motivated by ill will, bad
faith, or malice."

"Above all, the retrenchment of complainants, which exhibited defiance of labor laws on the
respondents' part, desecrated their tenural rights."

Waiting

Aside from declaring Aonuevo and Tan as illegally dismissed, Gayaman ordered the school to
immediately reinstate the two to their former positions, or equivalent positions, without loss of benefits
and seniority rights.

Miriam College must also pay each of them their full back wages, moral damages (P100,000 or
$2,036.38*), exemplary damages (P100,000), and attorney's fees. The computed judgment award for
Aonuevo and Tan amounted to P836,956.15 ($17,040.56) and P437,969.07 ($8,917.12), respectively.

Gayaman ordered the school to make a report of compliance within 10 days from receipt of the
decision.

In a text message to Rappler, Aonuevo said they received a copy of the decision on Friday, November
11.

"We're waiting for Miriam [College] to issue return to work [order]. That [decision] is immediately
executory, pending appeal, if any, on awards," she added.

In a statement sent to Rappler on Thursday, November 17, Miriam College President Rosario Lapus
said they have received the decision of the Labor Arbiter.

"We will appeal the decision. The school has acted fairly, for the best interest of the school community,
and has complied with all legal requirements pertaining to the Early Separation Program. Guided by
our core values and advocacies, we will always do what is just," the statement read.

Aside from Miriam College, the following are also respondents to the case:

Rosario Lapus
Josefina Tan
Edith Alcantara
Lourdes Quisumbing
Emelina Almario
Maria Lim-Ayuyao
Corazon Dela Paz-Bernando
Laura Quiambao-Del Rosario
Baltazar Endriga
Ma Celeste Gonzalez
Sr Marisa Lichauco
Roberto Lavia
Carmelita Quebengco
Glenda Fortez
Noel Racho
Ma Concepcion Lupisan

Gayaman in his decision said Aonuevo and Tan's prayer to hold these individual respondents as
"solidarily liable" with Miriam College "is unavailing."

As of August, over 3,000 college workers have reportedly been displaced due to the K to 12 program.
(READ: College professors fear massive retrenchment due to K to 12) Rappler.com

*US$1 = P49.11

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