Most Frequently Asked Questions (MFAQ) in Legal Bases of Education and Their Possible Answer(OR A Simplified Catechetic in Legal Bases of Education)
Question: This question is in connection with student arrest in the school premises.
the arresting officer taking the student under custody is a member of the military establishment properly identified but without warrant of arrest, what would be the responsibility of the school if the student injury is sustained within the campus?
Answer: The school authorities have no liability. The reason is that they could not fight the police or military establishment. In this connection, the Supreme court gives the advice that when one is picked up by the police officer, he should not argue with the policeman. He must argue in court.
Question: Is a parent’s signature permitting his child to join on outing or excursion or field trip tantamount to a waiver? Suppose something happens to the students.
Answer: It is not a waiver. A parent just gives the permission to his child to join the outing or excursion or field trip but not the permission to be injured.
Questions: Assuming that one can prove that he exercised proper diligence, what then is the parameter for proper? When do we know it is proper not proper? What constitutes proper or not proper? who will decide that?
Answer: According to the Supreme Court of the Philippines, you cannot show that the diligence exercised was proper by calibrated degrees. Each case will have to depend on the circumstances surroundings the event. It is found in the Latin quis, quid, quibos, qour, quomodo, quando. What is proper diligence is one case may not be so in another circumstances because of the difference in the attendant circumstances .There are no hard and fast rules that can possibly be given.
Question: Would the school authority be liable for any accident that happens to its students in the school bus or because of traffic accidents to and from the school?
Answer: If the school bus belongs to the school, the school is liable. If it belongs to a private company, then the concessionaire is the one that is liable.
Question: Suppose that in a student evaluation, a teacher is consistently graded in a manner of leading to the conclusion that the teacher is inefficient; would this be ground for dismissing the teacher:
Answer: If the testimony of the students is convincing, and with due process, yes.
Question: Suppose something happens to the students on the way from the school to the police precinct , what is the school’s liability?
Answer: The school no liability. Nothing. The reason is that the student is now under police custody.
Question: It is said that most foolishness and conduct unbecoming of a student occur when the teacher dismisses his class too early, let us say, twenty minutes after the time or fifteen minutes before the time, Since every school head is after escaping liability, may he issue as an exercise of diligence, a regulation that anything that may happen within the period when the teacher is supposed to be in the classroom will be his liability and that the school head has nothing to do with it?
Answer: If it was already known to the school authorities that a particular teacher or teachers are in the habit of coming to class late or dismissing classes too early, the school has not done anything about, then the school is still liable. The regulation should be a general rule such as an announcement at the beginning of the school year or during faculty or teachers, meeting and that violation of that rule will be ground for disciplinary action on the teacher. That teacher shall be subject to administrative action.
Question: Suppose during a class a student leave without the teacher’s permission. Then, he meets an accident outside the school campus. the question is: Is the teacher, and therefore the school liable?
Answer: In such a case the age of the student will be the one to be the deciding factor. If the student is a minor the law requires that the school post guards so that the students cannot go out during class hours. If he is of age and he goes out of the school, the school is not liable. The school’s negligence will be for failure to post guards for the security of the students who are considered minors.
Question: how do you differentiate tenure from term of office?
Answer: The word tenure refers to the period of time during which the incumbent is in office where the word term of office refers to the period of time during which the incumbent has the right to be in office
Question: If an educational institution converts itself into a foundation and any of its employees or teachers refuse to become part of the foundation, would the refusal be tantamount to separation?
Answer: In the words of the Supreme Court, transfer is not just physical severance but the fact of being separated. Now, if a school employee or teacher refuses to be absorbed by the foundation, he has thereby made his own decision. In the words of the Existentialist Philosopher Jean Paul Sartre, a person who makes a decision is the moral one and the one who cannot make a decision is the immoral one. Now, he has thereby made his own decision. He has laid off himself. In short, he has dismissed himself!
Question: Suppose a school transfer location due to a government order on dispersal, is the refusal of a teacher to join that school that transfer location be a ground for separation, and may the Commission hold the school accountable?
Answer: Because the relocation of the school is mandated by the state, whoever refuses to join the migration and complains to the Commission on accounts of his separation would have to convince the NLRC that the school was acting in bad faith.
Question: why is it difficult to dismiss inefficient faculty members and yet comparatively easy for a faculty member to walk out of his school with very little penalty?
Answer: The question has, of course, serious socio-economic and moral implications. The state has to use its police power to counteract certain pressures in the free world economy. In a developing country like the Philippines which has a labor excess economy, which means that here we have a situation where the man runs after the jobs and not the job running after the man, the guidelines are based on the philosophy that unemployed workers constitutes a social burden to the government and such a situation should not be recommended to escalate. Moreover, the philosophy of egalitarian must be used here where the State is guided by the motto: the greatest good for the greatest number.”
Question: If a professor carries on an affair with a female student and the affair is carried on outside the school, may the professor be charged with immorality? Or if an unmarried teacher should become pregnant is this a case of immorality?
Answer: Moral standards are supposed to be universal. Such a situation should not be tolerated whether the school is private or public.
Question: What is our law on tenure?
Answer: The explicit mandate of the 1987 Philippine Constitution enjoins the State to assure the security of tenure of workers in employment. This constitutional provision abolishes the almost absolute right of the employer under the Termination Pay Law (R. A 1987) to terminate at any time the services of his employees even without just cause. (Department of Labor Staff Committee on labor code)
Question: what statutory law implements the constitutional provision on tenure?
Answer: The statutory law that implements the constitutional provision on tenure is presidential Decree 442, as amended, which took effect last may 1, 1974. Specifically its pertinent provision provides that “In cases of employment without a definite period, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. (Article 269, Labor Code)
Question: What is the effect of an unjust dismissal of an employee?
Answer: He shall be entitled to reinstatement without loss of seniority right and to his back wages computed from the time his compensation which was withheld up to the time of his compensation which was withheld up to the time of his actual reinstatement. (Article 269, Labor Code)
Question: What do you mean by dismissal for a just cause?
Answer: As a sufficient ground for dismissal, a just cause is a legal cause and not merely a cause, which the appointing power, in the exercise of his discretion, deems sufficient. It is the statutory prescription of the cause of termination of employment.
Question: What exactly do we mean by probationary period?
Answer: Under the Labor Code, the probationary period is actually the period needed to determine fitness for the job. This period, due to lack of a better measurement, is deemed to be the period needed to learn the job.
Question: What is the probationary period for employees covered by the Labor Code?
Answer: The general probationary period is actually six months. If the job is apprenticeable, the probationary period is the apprenticeship period, which may range from less than six to more than six months depending upon the nature of the job. The probationary employment of professors, instructors, and teachers shall be subject to standards established by the Department of Education and Culture (Policy Instruction No. 11). However, for those working in the DepEd now, there is no more probationary period.
Question: what is liability, if any, or to what extent will heads of schools be liable for mass demonstration similar to those in Thailand or in China?
Answer: Mass demonstrations are without sanction of the school activities. Therefore, the schools are not liable.
Question: Suppose the demonstration is inside the school premises without permission of the school authorities during class hours just like what happen to the University of Southern Mindanao way back in 1983’s, what liabilities do the school officials have?
Answer: If the activity is in violation of school regulations and the school authorities had tried their best to stop it, the school would not be liable. The school will be held liable if there was implied consent.
Question: In case of an arrest of student during class hours. What is the liability of the school if it refuses to surrender a student?
Answer: This is disobedience to lawful authority. The school is therefore held liable.
Question: Can a teacher who has to use force in a students’ fight be held liable if he accidentaly hurts a student in trying to stop the fight?
Answer: No., because the teacher was acting in the performance of lawful duty. However, the forced employed by the teacher must be commensurate with the danger involved.
Question; Is there direct assault if both offender and offended are persons in authority?
Answer: In a case where a superintendent boxed a fellow superintendent because of conflict of jurisdiction, it was ruled that there was no assault.
Question: Is serious vandalism committed by an employee against the property of teachers in the classroom considered as assault of person in authority?
Answer: The offense may be termed malicious mischief or destruction of property with evil motive, etc..
Question: Is a student liable for direct assault upon a person in authority even if the act was committed during recess time and not in actual performance of the teacher’s duties?
Answer: Yes, as long as it is by reason or no accession of the teacher’s duties. When we say on occasion of the reason behind the assault was the performance of the teacher’s duties.
Question: If a student’s refusal to obey teacher in public provokes the teacher’s anger who loses his temper and slaps the student or even manhandles him, should the school officials side with the teacher or the student?
Answer: That situation is a plain case of the teacher taking the law into her own hands-the teacher becomes the offender and the students, his victim. More importantly, the offense is even aggravated by the teacher being a person in authority.
Question: When we refer to students assaulting persons in authority, do we refer only to student currently enrolled or does this include students who have been granted honourable dismissal?
Answer: The law does not mention students only. It includes non students,parents, even strangers. If a student was flunked by a professor there is direct assault on a person in authority
Question: In most barrios it is difficult to divorce the social functions of a teacher from the academic. If a teacher attends a school social function and in refusing to dance with a man she gets slapped direct assault on a person in authority?
Answer: It depends on the reason why the teacher was slapped.
Question: The teacher refused to danced with him because he smells liquor.
Answer: The teacher’s refusal to dance has nothing to do with the performance of a teacher’s duty but for a private reason. If a teacher is in the performance of duty, no matter if the reason for the assault has nothing to do with teacher (such as when a teacher is explaining a lesson and a creditor comes and slaps her in front of the students) there is direct assault of person in authority. The reason is immaterial if the assault is committed while the teacher is performing her duties.
Question: Would homosexual practices constitute just cause for separation?
Answer: The attending circumstances should be taken into account. In most state universities and colleges as wella sprivate