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
