K to 12: Retrenched college teachers win case vs Miriam College
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 Añonuevo 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, Añonuevo 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 Añonuevo 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 Añonuevo 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 Añonuevo 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 Añonuevo 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, Añonuevo 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 Laviña
- Carmelita Quebengco
- Glenda Fortez
- Noel Racho
- Ma Concepcion Lupisan
Gayaman in his decision said Añonuevo 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
