Nature of the Ground
A strike is a temporary stoppage of work by employees arising from a labor dispute, usually to compel concessions in collective bargaining or to protest an unfair labor practice. The Constitution protects peaceful concerted activities, but the right to strike is exercisable only in accordance with law because it affects employment, property, public order, and the continuity of essential services.
An illegal strike may lead to loss of employment status only under the specific rules governing strikes and lockouts. Although the topic appears under employer termination, the consequence is not the same as an authorized cause such as redundancy, retrenchment, closure, installation of labor-saving devices, or disease. A dismissal based on an illegal strike is treated procedurally like a dismissal for culpable conduct: the employer must observe individual due process under Department Order No. 147, series of 2015, and cannot rely on the 30-day notice and separation-pay model for business authorized causes.
The employer's label is not controlling. The decisive questions are whether the strike was illegal, whether the employee belonged to the class that may lose employment status, whether the employee acted knowingly, and whether the employer observed procedural due process before severing employment.
When a Strike Becomes Illegal
A strike may be illegal because of its purpose, the procedure used in declaring it, the time when it was staged, or the means employed by the strikers. A strike lawful in its objective may become illegal because of unlawful acts, and a strike peaceful in conduct may still be illegal if mandatory statutory steps were ignored.
- Non-strikeable issue. A strike must be connected with a legitimate labor dispute, especially a bargaining deadlock or an unfair labor practice. Work stoppages over intra-union disputes, inter-union representation controversies, purely individual grievances, or issues already committed to the proper compulsory process are not protected as strikes.
- Absence of notice. A union must file the required notice of strike with the National Conciliation and Mediation Board before a strike may be staged. The notice allows conciliation, informs the employer of the dispute, and gives the State a chance to prevent unnecessary disruption.
- Disregard of cooling-off periods. The ordinary cooling-off period is longer for bargaining deadlocks than for unfair labor practice strikes. In a union-busting situation, the law allows urgent action, but the exception does not erase the separate strike-vote and strike-vote-report requirements.
- Defective strike vote. The decision to strike must be approved by the majority of the total union membership in the bargaining unit, through secret ballot in a meeting or referendum called for that purpose. The vote requirement prevents a minority, faction, or officer group from imposing a work stoppage on the bargaining unit.
- Failure to report the vote. The strike-vote result must be reported to the NCMB, and the union must observe the mandatory seven-day waiting period after the report. This seven-day strike ban is independent of the cooling-off period and is normally treated as indispensable.
- Strike despite assumption or certification. Once the Secretary of Labor and Employment assumes jurisdiction over a dispute affected with national interest, or certifies it for compulsory arbitration, any strike or continuation of a strike is prohibited. The assumption or certification order carries a return-to-work consequence, and deliberate defiance is treated seriously because it challenges the State's compulsory settlement authority.
- Illegal acts during the strike. Violence, coercion, intimidation, obstruction of ingress or egress, blocking public roads, threats against non-strikers, destruction of property, and similar acts are outside the protection of concerted activity. Peaceful picketing communicates a labor dispute; coercive picketing unlawfully compels others to join it.
- Bad-faith strike. A union's good-faith belief that the employer committed an unfair labor practice may protect the strike from being treated as baseless, even if the charge is later not sustained. The belief must have a reasonable factual basis, and good faith does not excuse noncompliance with mandatory strike procedure unless a specific legal exception applies.
Employees Who May Lose Employment Status
The consequence of an illegal strike is not imposed collectively on all employees who were absent from work. The law distinguishes union officers from ordinary union members and requires individualized proof of participation, knowledge, and conduct.
| Employee involved | Required showing | Effect |
|---|---|---|
| Union officer | The employee was a union officer and knowingly participated in a strike later found illegal. | The officer may be declared to have lost employment status, even without proof of a separate violent or coercive act. |
| Ordinary union member | The employee knowingly participated in the commission of illegal acts during the strike. | Mere participation in the illegal strike, without an individually proven illegal act, is insufficient for dismissal. |
| Officer or member who defied a return-to-work order | The employee had actual knowledge of the order and deliberately refused to comply or continued prohibited strike activity. | Defiance may constitute an illegal act and may justify loss of employment status if individually established. |
| Non-striker or employee merely identified with the union | Specific participation in the strike or in illegal strike acts must still be proved. | Union membership, sympathy, or presence near the picket line does not by itself justify dismissal. |
Union office must be proved, not presumed. The employer should identify the position held, the period of incumbency, and the acts showing knowing participation. For members, the employer must identify the particular illegal act, the employee's personal participation in it, and the circumstances showing that the act was knowingly committed.
Administrative Procedure for Dismissal
Before dismissal, the employer should separate two related inquiries. The first is the labor-relations issue: whether the strike was illegal and which acts were committed during it. The second is the employment issue: whether a particular employee may be dismissed after due process. A competent labor tribunal may determine the illegality of the strike in the proper case, and the employer's unilateral conclusion does not by itself finally establish illegality.
Department Order No. 147, series of 2015 requires the just-cause style of due process for dismissal based on illegal strike participation or illegal strike acts. The procedure is individual, written, and evidence-based.
| Step | What the employer must do | Why it matters |
|---|---|---|
| First written notice | Serve a notice specifying the charge, the facts relied upon, the employee's alleged role as officer or member, the strike-related acts attributed to the employee, and the possible penalty of dismissal. | A vague accusation of joining an illegal strike does not allow the employee to prepare a meaningful explanation. |
| Opportunity to explain | Give the employee a reasonable period, commonly at least five calendar days from receipt, to submit a written explanation, gather evidence, and seek assistance if desired. | The employee must have a real chance to deny participation, challenge the illegality theory, or explain the circumstances of the alleged acts. |
| Hearing or conference | Conduct a hearing or conference when requested, when substantial factual issues exist, when company rules require it, or when fairness demands confrontation and clarification of evidence. | Strike cases often involve identification, dates, videos, photographs, affidavits, and allegations of group action that require testing. |
| Evaluation of evidence | Assess the evidence separately for each employee, distinguishing union officers, members, returning workers, non-strikers, and employees alleged to have committed specific illegal acts. | Mass findings are vulnerable because the legal consequences differ by status and conduct. |
| Second written notice | Serve a decision notice stating the employer's findings, the evidence considered, the legal basis for dismissal, and the effectivity of the termination. | The decision must show that the employer actually considered the employee's explanation before imposing dismissal. |
The notices should be served personally when practicable, or by reliable means that prove receipt. Posting a general notice at the workplace is ordinarily inadequate for dismissal because the charge and evidence must be directed to the employee concerned.
If the strike is covered by an assumption or certification order, the employer should document service or actual knowledge of the return-to-work order, the time for compliance, the employee's response, and any attempted return. Employees who seasonably return should generally be admitted back to work, subject to later lawful proceedings for separately proven misconduct. Refusal to accept returning employees may convert the situation into an employer-side violation and weaken the basis for dismissal.
Proof and Evidence
The employer bears the burden of proving a valid cause for dismissal. In illegal strike cases, substantial evidence means relevant evidence that a reasonable mind might accept as adequate to support the conclusion that the strike was illegal and that the employee personally fell within the statutory consequence.
- For union officers, useful proof includes union records, election results, notices of officers, minutes, public statements, strike leadership roles, picket assignments, instructions to members, and acts showing knowledge of procedural defects or prohibited orders.
- For ordinary members, useful proof includes clear identification in videos or photographs, credible affidavits, incident reports, police or security records, medical or property records, and testimony connecting the employee to a specific illegal act.
- For return-to-work violations, useful proof includes copies of the order, proof of service, announcements, payroll or attendance records, communications to employees, security logs, and evidence that the employee knowingly refused to resume work.
- For employees who deny participation, the employer must address alibi, mistaken identity, approved leave, illness, lack of notice, or evidence of attempted return.
General accusations against a crowd do not establish individual liability. Identification must be reliable enough to connect the employee to the act charged. Affidavits that merely repeat conclusions, photographs without context, or lists prepared after the fact may be insufficient if they do not show personal participation and knowledge.
Effects of Noncompliance
If the strike is not proven illegal, dismissal based on illegal strike participation fails. If the strike is illegal but the employee is an ordinary member with no proven illegal act, dismissal also fails. If an illegal act is proven but the employee was denied the required notices and opportunity to be heard, the dismissal may be exposed to procedural due process liability even when a substantive ground exists.
Employees unlawfully dismissed may be entitled to reinstatement, backwages, and other appropriate relief, subject to the tribunal's findings on the legality of the strike, the employee's conduct, and the feasibility of reinstatement. Employees who are not validly dismissed but voluntarily joined a strike are generally subject to the no-work-no-pay principle for the strike period, unless the employer's own unlawful act legally changes the consequence.
Separation pay is not a normal incident of dismissal for knowing participation in an illegal strike or illegal acts during a strike because the dismissal is not based on a business authorized cause. Where the employee's conduct involves violence, coercion, willful defiance, or other serious wrongdoing, equitable separation pay is generally disfavored.
The employer should therefore avoid collective termination notices, automatic dismissal of all strikers, and reliance on the mere fact of union membership. The legally sound procedure is to prove the illegality of the strike, classify each employee correctly, observe individual due process, and impose dismissal only on employees whose status and conduct satisfy the statutory standard.