G.R. No.

114337 September 29, 1995

NITTO ENTERPRISES, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ROBERTO CAPILI, respondents.

This petition for certiorari under Rule 65 of the Rules of Court seeking to annul the decision 1 rendered by
public respondent National Labor Relations Commission, which reversed the decision of the Labor
Arbiter.

Briefly, the facts of the case are as follows:

Petitioner Nitto Enterprises, a company engaged in the sale of glass and aluminum products, hired
Roberto Capili sometime in May 1990 as an apprentice machinist, molder and core maker as evidenced
by an apprenticeship agreement 2 for a period of six (6) months from May 28, 1990 to November 28,
1990 with a daily wage rate of P66.75 which was 75% of the applicable minimum wage.

At around 1:00 p.m. of August 2, 1990, Roberto Capili who was handling a piece of glass which he was
working on, accidentally hit and injured the leg of an office secretary who was treated at a nearby
hospital.

Later that same day, after office hours, private respondent entered a workshop within the office premises
which was not his work station. There, he operated one of the power press machines without authority
and in the process injured his left thumb. Petitioner spent the amount of P1,023.04 to cover the
medication of private respondent.

3
The following day, Roberto Capili was asked to resign in a letter which reads:

August 2, 1990

Wala siyang tanggap ng utos mula sa superbisor at wala siyang experiensa kung papaano gamitin and
"TOOL" sa pagbuhat ng salamin, sarili niyang desisyon ang paggamit ng tool at may disgrasya at
nadamay pa ang isang sekretarya ng kompanya.

Sa araw ding ito limang (5) minute ang nakakalipas mula alas-singko ng hapon siya ay pumasok sa shop
na hindi naman sakop ng kanyang trabaho. Pinakialaman at kinalikot ang makina at nadisgrasya niya ang
kanyang sariling kamay.

Nakagastos ang kompanya ng mga sumusunod:

Emergency and doctor fee P715.00
Medecines (sic) and others 317.04

Bibigyan siya ng kompanya ng Siyam na araw na libreng sahod hanggang matanggal ang tahi ng
kanyang kamay.

Tatanggapin niya ang sahod niyang anim na araw, mula ika-30 ng Hulyo at ika-4 ng Agosto, 1990.

Ang kompanya ang magbabayad ng lahat ng gastos pagtanggal ng tahi ng kanyang kamay, pagkatapos
ng siyam na araw mula ika-2 ng Agosto.

Sa lahat ng nakasulat sa itaas, hinihingi ng kompanya ang kanyang resignasyon, kasama ng kanyang
comfirmasyon at pag-ayon na ang lahat sa itaas ay totoo.

Naiintindihan ko ang lahat ng nakasulat sa itaas, at ang lahat ng ito ay aking pagkakasala sa hindi
pagsunod sa alintuntunin ng kompanya.

(Sgd.) Roberto Capili

Roberto Capili

On August 3, 1990 private respondent executed a Quitclaim and Release in favor of petitioner for and in
4
consideration of the sum of P1,912.79.

Three days after, or on August 6, 1990, private respondent formally filed before the NLRC Arbitration
Branch, National Capital Region a complaint for illegal dismissal and payment of other monetary benefits.

On October 9, 1991, the Labor Arbiter rendered his decision finding the termination of private respondent
as valid and dismissing the money claim for lack of merit. The dispositive portion of the ruling reads:

WHEREFORE, premises considered, the termination is valid and for cause, and the money claims
dismissed for lack of merit.

The respondent however is ordered to pay the complainant the amount of P500.00 as financial
assistance.

SO ORDERED. 5

Labor Arbiter Patricio P. Libo-on gave two reasons for ruling that the dismissal of Roberto Capilian was
valid. First, private respondent who was hired as an apprentice violated the terms of their agreement
when he acted with gross negligence resulting in the injury not only to himself but also to his fellow
worker. Second, private respondent had shown that "he does not have the proper attitude in employment
particularly the handling of machines without authority and proper training. 6

On July 26, 1993, the National Labor Relations Commission issued an order reversing the decision of the
Labor Arbiter, the dispositive portion of which reads:

WHEREFORE, the appealed decision is hereby set aside. The respondent is hereby directed to reinstate
complainant to his work last performed with backwages computed from the time his wages were withheld
up to the time he is actually reinstated. The Arbiter of origin is hereby directed to further hear
complainant's money claims and to dispose them on the basis of law and evidence obtaining.

SO ORDERED. 7

The NLRC declared that private respondent was a regular employee of petitioner by ruling thus:

As correctly pointed out by the complainant, we cannot understand how an apprenticeship agreement
filed with the Department of Labor only on June 7, 1990 could be validly used by the Labor Arbiter as
basis to conclude that the complainant was hired by respondent as a plain "apprentice" on May 28, 1990.
Clearly, therefore, the complainant was respondent's regular employee under Article 280 of the Labor
Code, as early as May 28,1990, who thus enjoyed the security of tenure guaranteed in Section 3, Article
XIII of our 1987 Constitution.

The complainant being for illegal dismissal (among others) it then behooves upon respondent, pursuant
to Art. 227(b) and as ruled in Edwin Gesulgon vs. NLRC, et al. (G.R. No. 90349, March 5, 1993, 3rd Div.,
Feliciano, J.) to prove that the dismissal of complainant was for a valid cause. Absent such proof, we
8
cannot but rule that the complainant was illegally dismissed.

On January 28, 1994, Labor Arbiter Libo-on called for a conference at which only private respondent's
representative was present.

On April 22, 1994, a Writ of Execution was issued, which reads:

NOW, THEREFORE, finding merit in [private respondent's] Motion for Issuance of the Writ, you are
hereby commanded to proceed to the premises of [petitioner] Nitto Enterprises and Jovy Foster located at
No. l 74 Araneta Avenue, Portero, Malabon, Metro Manila or at any other places where their properties
are located and effect the reinstatement of herein [private respondent] to his work last performed or at the
option of the respondent by payroll reinstatement.

You are also to collect the amount of P122,690.85 representing his backwages as called for in the
dispositive portion, and turn over such amount to this Office for proper disposition.
Petitioner filed a motion for reconsideration but the same was denied.

Hence, the instant petition for certiorari.

The issues raised before us are the following:

WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN

HOLDING THAT PRIVATE RESPONDENT WAS NOT AN APPRENTICE.

II

WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN

HOLDING THAT PETITIONER HAD NOT ADEQUATELY PROVEN THE EXISTENCE OF A VALID
CAUSE IN TERMINATING THE SERVICE OF PRIVATE RESPONDENT.

We find no merit in the petition.

Petitioner assails the NLRC's finding that private respondent Roberto Capili cannot plainly be considered
an apprentice since no apprenticeship program had yet been filed and approved at the time the
agreement was executed.

Petitioner further insists that the mere signing of the apprenticeship agreement already established an
employer-apprentice relationship.

Petitioner's argument is erroneous.

The law is clear on this matter. Article 61 of the Labor Code provides:

Contents of apprenticeship agreement. Apprenticeship agreements, including the main rates of

apprentices, shall conform to the rules issued by the Minister of Labor and Employment. The period of
apprenticeship shall not exceed six months. Apprenticeship agreements providing for wage rates below
the legal minimum wage, which in no case shall start below 75% per cent of the applicable minimum
wage, may be entered into only in accordance with apprenticeship program duly approved by the Minister
of Labor and Employment. The Ministry shall develop standard model programs of apprenticeship.
(emphasis supplied)

In the case at bench, the apprenticeship agreement between petitioner and private respondent was
executed on May 28, 1990 allegedly employing the latter as an apprentice in the trade of "care maker/
molder." On the same date, an apprenticeship program was prepared by petitioner and submitted to the
Department of Labor and Employment. However, the apprenticeship Agreement was filed only on June 7,
1990. Notwithstanding the absence of approval by the Department of Labor and Employment, the
apprenticeship agreement was enforced the day it was signed.

Based on the evidence before us, petitioner did not comply with the requirements of the law. It is
mandated that apprenticeship agreements entered into by the employer and apprentice shall be entered
only in accordance with the apprenticeship program duly approved by the Minister of Labor and
Employment.

Prior approval by the Department of Labor and Employment of the proposed apprenticeship program is,
therefore, a condition sine quo non before an apprenticeship agreement can be validly entered into.

The act of filing the proposed apprenticeship program with the Department of Labor and Employment is a
preliminary step towards its final approval and does not instantaneously give rise to an employer-
apprentice relationship.

Article 57 of the Labor Code provides that the State aims to "establish a national apprenticeship program
through the participation of employers, workers and government and non-government agencies" and "to
establish apprenticeship standards for the protection of apprentices." To translate such objectives into
existence, prior approval of the DOLE to any apprenticeship program has to be secured as a condition
sine qua non before any such apprenticeship agreement can be fully enforced. The role of the DOLE in
apprenticeship programs and agreements cannot be debased.

Hence, since the apprenticeship agreement between petitioner and private respondent has no force and
effect in the absence of a valid apprenticeship program duly approved by the DOLE, private respondent's
assertion that he was hired not as an apprentice but as a delivery boy ("kargador" or "pahinante")
deserves credence. He should rightly be considered as a regular employee of petitioner as defined by
Article 280 of the Labor Code:

Art. 280. Regular and Casual Employment. The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to
be regular where the employee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer, except where the employment has been fixed for
a specific project or undertaking the completion or termination of which has been determined at the time
of the engagement of the employee or where the work or services to be performed is seasonal in nature
and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided,
That, any employee who has rendered at least one year of service, whether such service is continuous or
broken, shall be considered a regular employee with respect to the activity in which he is employed and
his employment shall continue while such activity exists. (Emphasis supplied)
 9
and pursuant to the constitutional mandate to "protect the rights of workers and promote their welfare."

Petitioner further argues that, there is a valid cause for the dismissal of private respondent.

There is an abundance of cases wherein the Court ruled that the twin requirements of due process,
substantive and procedural, must be complied with, before valid dismissal exists. 10 Without which, the
dismissal becomes void.

The twin requirements of notice and hearing constitute the essential elements of due process. This simply
means that the employer shall afford the worker ample opportunity to be heard and to defend himself with
the assistance of his representative, if he so desires.

Ample opportunity connotes every kind of assistance that management must accord the employee to
enable him to prepare adequately for his defense including legal representation. 11

As held in the case of Pepsi-Cola Bottling Co., Inc. v. NLRC: 12

The law requires that the employer must furnish the worker sought to be dismissed with two (2) written
notices before termination of employee can be legally effected: (1) notice which apprises the employee of
the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which
informs the employee of the employer's decision to dismiss him (Sec. 13, BP 130; Sec. 2-6 Rule XIV,
Book V, Rules and Regulations Implementing the Labor Code as amended). Failure to comply with the
requirements taints the dismissal with illegality. This procedure is mandatory, in the absence of which,
any judgment reached by management is void and in existent (Tingson, Jr. vs. NLRC, 185 SCRA 498
[1990]; National Service Corp. vs. NLRC, 168 SCRA 122; Ruffy vs. NLRC. 182 SCRA 365 [1990]).

The fact is private respondent filed a case of illegal dismissal with the Labor Arbiter only three days after
he was made to sign a Quitclaim, a clear indication that such resignation was not voluntary and
deliberate.

Private respondent averred that he was actually employed by petitioner as a delivery boy ("kargador" or
"pahinante").

He further asserted that petitioner "strong-armed" him into signing the aforementioned resignation letter
and quitclaim without explaining to him the contents thereof. Petitioner made it clear to him that anyway,
he did not have a choice. 13

Petitioner cannot disguise the summary dismissal of private respondent by orchestrating the latter's
alleged resignation and subsequent execution of a Quitclaim and Release. A judicious examination of
both events belies any spontaneity on private respondent's part.

WHEREFORE, finding no abuse of discretion committed by public respondent National Labor Relations
Commission, the appealed decision is hereby AFFIRMED.

SO ORDERED.

G.R. No. 152894 August 17, 2007

CENTURY CANNING CORPORATION, Petitioner,

vs.
COURT OF APPEALS and GLORIA C. PALAD, Respondents.

DECISION

The Case

1 2
This is a petition for review of the Decision dated 12 November 2001 and the Resolution dated 5 April
2002 of the Court of Appeals in CA-G.R. SP No. 60379.

The Facts

On 15 July 1997, Century Canning Corporation (petitioner) hired Gloria C. Palad (Palad) as "fish cleaner"
at petitioners tuna and sardines factory. Palad signed on 17 July 1997 an apprenticeship agreement3
with petitioner. Palad received an apprentice allowance of P138.75 daily. On 25 July 1997, petitioner
submitted its apprenticeship program for approval to the Technical Education and Skills Development
Authority (TESDA) of the Department of Labor and Employment (DOLE). On 26 September 1997, the
4
TESDA approved petitioners apprenticeship program.

According to petitioner, a performance evaluation was conducted on 15 November 1997, where petitioner
gave Palad a rating of N.I. or "needs improvement" since she scored only 27.75% based on a 100%
performance indicator. Furthermore, according to the performance evaluation, Palad incurred numerous
5
tardiness and absences. As a consequence, petitioner issued a termination notice dated 22 November
1997 to Palad, informing her of her termination effective at the close of business hours of 28 November
1997.

Palad then filed a complaint for illegal dismissal, underpayment of wages, and non-payment of pro-rated
13th month pay for the year 1997.

On 25 February 1999, the Labor Arbiter dismissed the complaint for lack of merit but ordered petitioner to
pay Palad her last salary and her pro-rated 13th month pay. The dispositive portion of the Labor Arbiters
decision reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring that the complaint for illegal
dismissal filed by the complainant against the respondents in the above-entitled case should be, as it is
hereby DISMISSED for lack of merit. However, the respondents are hereby ordered to pay the
complainant the amount of ONE THOUSAND SIX HUNDRED THIRTY-TWO PESOS (P1,632.00),
representing her last salary and the amount of SEVEN THOUSAND TWO HUNDRED TWENTY EIGHT
(P7,228.00) PESOS representing her prorated 13th month pay.

All other issues are likewise dismissed.

SO ORDERED.6

On appeal, the National Labor Relations Commission (NLRC) affirmed with modification the Labor
Arbiters decision, thus:

WHEREFORE, premises considered, the decision of the Arbiter dated 25 February 1999 is hereby
MODIFIED in that, in addition, respondents are ordered to pay complainants backwages for two (2)
months in the amount ofP7,176.00 (P138.75 x 26 x 2 mos.). All other dispositions of the Arbiter as
appearing in the dispositive portion of his decision are AFFIRMED.

7
SO ORDERED.

Upon denial of Palads motion for reconsideration, Palad filed a special civil action for certiorari with the
Court of Appeals. On 12 November 2001, the Court of Appeals rendered a decision, the dispositive
portion of which reads:

WHEREFORE, in view of the foregoing, the questioned decision of the NLRC is hereby SET ASIDE and
a new one entered, to wit:

(a) finding the dismissal of petitioner to be illegal;

(b) ordering private respondent to pay petitioner her underpayment in wages;

(c) ordering private respondent to reinstate petitioner to her former position without loss of seniority rights
and to pay her full backwages computed from the time compensation was withheld from her up to the
time of her reinstatement;
(d) ordering private respondent to pay petitioner attorneys fees equivalent to ten (10%) per cent of the
monetary award herein; and

(e) ordering private respondent to pay the costs of the suit.

8
SO ORDERED.

The Ruling of the Court of Appeals

The Court of Appeals held that the apprenticeship agreement which Palad signed was not valid and
binding because it was executed more than two months before the TESDA approved petitioners
apprenticeship program. The Court of Appeals cited Nitto Enterprises v. National Labor Relations
9
Commission, where it was held that prior approval by the DOLE of the proposed apprenticeship program
is a condition sine qua non before an apprenticeship agreement can be validly entered into.

The Court of Appeals also held that petitioner illegally dismissed Palad. The Court of Appeals ruled that
petitioner failed to show that Palad was properly apprised of the required standard of performance. The
Court of Appeals likewise held that Palad was not afforded due process because petitioner did not comply
with the twin requirements of notice and hearing.

The Issues

Petitioner raises the following issues:

1. WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT

PRIVATE RESPONDENT WAS NOT AN APPRENTICE; and

2. WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT

PETITIONER HAD NOT ADEQUATELY PROVEN THE EXISTENCE OF A VALID CAUSE IN
TERMINATING THE SERVICE OF PRIVATE RESPONDENT.10

The Ruling of the Court

The petition is without merit.

Registration and Approval by the TESDA of Apprenticeship Program Required Before Hiring of
Apprentices

The Labor Code defines an apprentice as a worker who is covered by a written apprenticeship agreement
11
with an employer. One of the objectives of Title II (Training and Employment of Special Workers) of the
12
Labor Code is to establish apprenticeship standards for the protection of apprentices. In line with this
objective, Articles 60 and 61 of the Labor Code provide:

ART. 60. Employment of apprentices. Only employers in the highly technical industries may
employ apprentices and only in apprenticeable occupations approved by the Minister of Labor
and Employment. (Emphasis supplied)

ART. 61. Contents of apprenticeship agreements. Apprenticeship agreements, including the wage
rates of apprentices, shall conform to the rules issued by the Minister of Labor and Employment. The
period of apprenticeship shall not exceed six months. Apprenticeship agreements providing for wage
rates below the legal minimum wage, which in no case shall start below 75 percent of the
applicable minimum wage, may be entered into only in accordance with apprenticeship programs
duly approved by the Minister of Labor and Employment. The Ministry shall develop standard model
programs of apprenticeship. (Emphasis supplied)

13
In Nitto Enterprises v. National Labor Relations Commission, the Court cited Article 61 of the Labor
Code and held that an apprenticeship program should first be approved by the DOLE before an
apprentice may be hired, otherwise the person hired will be considered a regular employee. The Court
held:

In the case at bench, the apprenticeship agreement between petitioner and private respondent was
executed on May 28, 1990 allegedly employing the latter as an apprentice in the trade of "care maker/
molder." On the same date, an apprenticeship program was prepared by petitioner and submitted to the
Department of Labor and Employment. However, the apprenticeship agreement was filed only on June 7,
1990. Notwithstanding the absence of approval by the Department of Labor and Employment, the
apprenticeship agreement was enforced the day it was signed.

Based on the evidence before us, petitioner did not comply with the requirements of the law. It is
mandated that apprenticeship agreements entered into by the employer and apprentice shall be
entered only in accordance with the apprenticeship program duly approved by the Minister of
Labor and Employment.

Prior approval by the Department of Labor and Employment of the proposed apprenticeship
program is, therefore, a condition sine qua non before an apprenticeship agreement can be validly
entered into.

The act of filing the proposed apprenticeship program with the Department of Labor and Employment is a
preliminary step towards its final approval and does not instantaneously give rise to an employer-
apprentice relationship.

Article 57 of the Labor Code provides that the State aims to "establish a national apprenticeship program
through the participation of employers, workers and government and non-government agencies" and "to
establish apprenticeship standards for the protection of apprentices." To translate such objectives into
existence, prior approval of the DOLE to any apprenticeship program has to be secured as a condition
sine qua non before any such apprenticeship agreement can be fully enforced. The role of the DOLE in
apprenticeship programs and agreements cannot be debased.

Hence, since the apprenticeship agreement between petitioner and private respondent has no force and
effect in the absence of a valid apprenticeship program duly approved by the DOLE, private respondents
assertion that he was hired not as an apprentice but as a delivery boy ("kargador" or "pahinante")
deserves credence. He should rightly be considered as a regular employee of petitioner as defined by
14
Article 280 of the Labor Code x x x. (Emphasis supplied)

Republic Act No. 779615 (RA 7796), which created the TESDA, has transferred the authority over
apprenticeship programs from the Bureau of Local Employment of the DOLE to the TESDA.16 RA 7796
emphasizes TESDAs approval of the apprenticeship program as a pre-requisite for the hiring of
apprentices. Such intent is clear under Section 4 of RA 7796:

SEC. 4. Definition of Terms. As used in this Act:

xxx

j) "Apprenticeship" training within employment with compulsory related theoretical instructions involving
acontract between an apprentice and an employer on an approved apprenticeable occupation;

k) "Apprentice" is a person undergoing training for an approved apprenticeable occupation during

an established period assured by an apprenticeship agreement;

l) "Apprentice Agreement" is a contract wherein a prospective employer binds himself to train the
apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation
emphasizing the rights, duties and responsibilities of each party;

m) "Apprenticeable Occupation" is an occupation officially endorsed by a tripartite body and approved

for apprenticeship by the Authority [TESDA]; (Emphasis supplied)

In this case, the apprenticeship agreement was entered into between the parties before petitioner filed its
apprenticeship program with the TESDA for approval. Petitioner and Palad executed the apprenticeship
agreement on 17 July 1997 wherein it was stated that the training would start on 17 July 1997 and would
end approximately in December 1997.17 On 25 July 1997, petitioner submitted for approval its
apprenticeship program, which the TESDA subsequently approved on 26 September 1997.18 Clearly, the
apprenticeship agreement was enforced even before the TESDA approved petitioners apprenticeship
program. Thus, the apprenticeship agreement is void because it lacked prior approval from the TESDA.
The TESDAs approval of the employers apprenticeship program is required before the employer is
allowed to hire apprentices. Prior approval from the TESDA is necessary to ensure that only employers in
the highly technical industries may employ apprentices and only in apprenticeable occupations.19 Thus,
under RA 7796, employers can only hire apprentices for apprenticeable occupations which must be
officially endorsed by a tripartite body and approved for apprenticeship by the TESDA.1avvphil This is to
ensure the protection of apprentices and to obviate possible abuses by prospective employers who may
want to take advantage of the lower wage rates for apprentices and circumvent the right of the employees
to be secure in their employment.

The requisite TESDA approval of the apprenticeship program prior to the hiring of apprentices was further
emphasized by the DOLE with the issuance of Department Order No. 68-04 on 18 August 2004.
Department Order No. 68-04, which provides the guidelines in the implementation of the Apprenticeship
and Employment Program of the government, specifically states that no enterprise shall be allowed to
20
hire apprentices unless its apprenticeship program is registered and approved by TESDA.

Since Palad is not considered an apprentice because the apprenticeship agreement was enforced before
the TESDAs approval of petitioners apprenticeship program, Palad is deemed a regular employee
performing the job of a "fish cleaner." Clearly, the job of a "fish cleaner" is necessary in petitioners
21
business as a tuna and sardines factory. Under Article 280 of the Labor Code, an employment is
deemed regular where the employee has been engaged to perform activities which are usually necessary
or desirable in the usual business or trade of the employer.

Illegal Termination of Palad

We shall now resolve whether petitioner illegally dismissed Palad.

22
Under Article 279 of the Labor Code, an employer may terminate the services of an employee for just
23 24 25
causes or for authorized causes. Furthermore, under Article 277(b) of the Labor Code, the
employer must send the employee who is about to be terminated, a written notice stating the causes for
termination and must give the employee the opportunity to be heard and to defend himself. Thus, to
constitute valid dismissal from employment, two requisites must concur: (1) the dismissal must be for a
just or authorized cause; and (2) the employee must be afforded an opportunity to be heard and to defend
himself.26

In this case, the Labor Arbiter held that petitioner terminated Palad for habitual absenteeism and poor
efficiency of performance. Under Section 25, Rule VI, Book II of the Implementing Rules of the Labor
Code, habitual absenteeism and poor efficiency of performance are among the valid causes for which the
employer may terminate the apprenticeship agreement after the probationary period.

However, the NLRC reversed the finding of the Labor Arbiter on the issue of the legality of Palads
termination:

As to the validity of complainants dismissal in her status as an apprentice, suffice to state that the
findings of the Arbiter that complainant was dismissed due to failure to meet the standards is nebulous.
What clearly appears is that complainant already passed the probationary status of the apprenticeship
agreement of 200 hours at the time she was terminated on 28 November 1997 which was already the
fourth month of the apprenticeship period of 1000 hours. As such, under the Code, she can only be
dismissed for cause, in this case, for poor efficiency of performance on the job or in the classroom for a
prolonged period despite warnings duly given to the apprentice.

We noted that no clear and sufficient evidence exist to warrant her dismissal as an apprentice
during the agreed period. Besides the absence of any written warnings given to complainant
reminding her of "poor performance," respondents evidence in this respect consisted of an
indecipherable or unauthenticated xerox of the performance evaluation allegedly conducted on
complainant. This is of doubtful authenticity and/or credibility, being not only incomplete in the
sense that appearing thereon is a signature (not that of complainant) side by side with a date
indicated as "1/16/98". From the looks of it, this signature is close to and appertains to the
typewritten position of "Division/Department Head", which is below the signature of complainants
immediate superior who made the evaluation indicated as "11-15-97."

The only conclusion We can infer is that this evaluation was made belatedly, specifically, after the
filing of the case and during the progress thereof in the Arbitral level, as shown that nothing
thereon indicate that complainant was notified of the results. Its authenticity therefor, is a big
question mark, and hence lacks any credibility. Evidence, to be admissible in administrative
proceedings, must at least have a modicum of authenticity. This, respondents failed to comply with.
As such, complainant is entitled to the payment of her wages for the remaining two (2) months of her
27
apprenticeship agreement. (Emphasis supplied)

Indeed, it appears that the Labor Arbiters conclusion that petitioner validly terminated Palad was based
mainly on the performance evaluation allegedly conducted by petitioner. However, Palad alleges that she
had no knowledge of the performance evaluation conducted and that she was not even informed of the
result of the alleged performance evaluation. Palad also claims she did not receive a notice of dismissal,
nor was she given the chance to explain. According to petitioner, Palad did not receive the termination
notice because Palad allegedly stopped reporting for work after being informed of the result of the
evaluation.

Under Article 227 of the Labor Code, the employer has the burden of proving that the termination was for
28
a valid or authorized cause. Petitioner failed to substantiate its claim that Palad was terminated for
valid reasons. In fact, the NLRC found that petitioner failed to prove the authenticity of the performance
evaluation which petitioner claims to have conducted on Palad, where Palad received a performance
rating of only 27.75%. Petitioner merely relies on the performance evaluation to prove Palads
inefficiency. It was likewise not shown that petitioner ever apprised Palad of the performance standards
set by the company. When the alleged valid cause for the termination of employment is not clearly
29
proven, as in this case, the law considers the matter a case of illegal dismissal.

Furthermore, Palad was not accorded due process. Even if petitioner did conduct a performance
evaluation on Palad, petitioner failed to warn Palad of her alleged poor performance. In fact, Palad denies
any knowledge of the performance evaluation conducted and of the result thereof. Petitioner likewise
30
admits that Palad did not receive the notice of termination because Palad allegedly stopped reporting
for work. The records are bereft of evidence to show that petitioner ever gave Palad the opportunity to
explain and defend herself. Clearly, the two requisites for a valid dismissal are lacking in this case.

WHEREFORE, we AFFIRM the Decision dated 12 November 2001 and the Resolution dated 5 April 2002
of the Court of Appeals in CA-G.R. SP No. 60379.

SO ORDERED.

G.R. No. 75112 August 17, 1992

FILAMER CHRISTIAN INSTITUTE, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his capacity as Judge
of the Regional Trial Court, Branch XIV, Roxas City and POTENCIANO KAPUNAN, SR.,
respondents.

The private respondents, heirs of the late Potenciano Kapunan, seek reconsideration of the decision
rendered by this Court on October 16, 1990 (Filamer Christian Institute v. Court of Appeals, 190 SCRA
477) reviewing the appellate court's conclusion that there exists an employer-employee relationship
between the petitioner and its co-defendant Funtecha. The Court ruled that the petitioner is not liable for
the injuries caused by Funtecha on the grounds that the latter was not an authorized driver for whose acts
the petitioner shall be directly and primarily answerable, and that Funtecha was merely a working scholar
who, under Section 14, Rule X, Book III of the Rules and Regulations Implementing the Labor Code is not
considered an employee of the petitioner.

The private respondents assert that the circumstances obtaining in the present case call for the
application of Article 2180 of the Civil Code since Funtecha is no doubt an employee of the petitioner. The
private respondents maintain that under Article 2180 an injured party shall have recourse against the
servant as well as the petitioner for whom, at the time of the incident, the servant was performing an act
in furtherance of the interest and for the benefit of the petitioner. Funtecha allegedly did not steal the
school jeep nor use it for a joy ride without the knowledge of the school authorities.

After a re-examination of the laws relevant to the facts found by the trial court and the appellate court, the
Court reconsiders its decision. We reinstate the Court of Appeals' decision penned by the late Justice
Desiderio Jurado and concurred in by Justices Jose C. Campos, Jr. and Serafin E. Camilon. Applying
Civil Code provisions, the appellate court affirmed the trial court decision which ordered the payment of
the P20,000.00 liability in the Zenith Insurance Corporation policy, P10,000.00 moral damages,
P4,000.00 litigation and actual expenses, and P3,000.00 attorney's fees.

It is undisputed that Funtecha was a working student, being a part-time janitor and a scholar of petitioner
Filamer. He was, in relation to the school, an employee even if he was assigned to clean the school
premises for only two (2) hours in the morning of each school day.

Having a student driver's license, Funtecha requested the driver, Allan Masa, and was allowed, to take
over the vehicle while the latter was on his way home one late afternoon. It is significant to note that the
place where Allan lives is also the house of his father, the school president, Agustin Masa. Moreover, it is
also the house where Funtecha was allowed free board while he was a student of Filamer Christian
Institute.

Allan Masa turned over the vehicle to Funtecha only after driving down a road, negotiating a sharp
dangerous curb, and viewing that the road was clear. (TSN, April 4, 1983, pp. 78-79) According to Allan's
testimony, a fast moving truck with glaring lights nearly hit them so that they had to swerve to the right to
avoid a collision. Upon swerving, they heard a sound as if something had bumped against the vehicle, but
they did not stop to check. Actually, the Pinoy jeep swerved towards the pedestrian, Potenciano Kapunan
who was walking in his lane in the direction against vehicular traffic, and hit him. Allan affirmed that
Funtecha followed his advise to swerve to the right. (Ibid., p. 79) At the time of the incident (6:30 P.M.) in
Roxas City, the jeep had only one functioning headlight.

Allan testified that he was the driver and at the same time a security guard of the petitioner-school. He
further said that there was no specific time for him to be off-duty and that after driving the students home
at 5:00 in the afternoon, he still had to go back to school and then drive home using the same vehicle.

Driving the vehicle to and from the house of the school president where both Allan and Funtecha reside is
an act in furtherance of the interest of the petitioner-school. Allan's job demands that he drive home the
school jeep so he can use it to fetch students in the morning of the next school day.

It is indubitable under the circumstances that the school president had knowledge that the jeep was
routinely driven home for the said purpose. Moreover, it is not improbable that the school president also
had knowledge of Funtecha's possession of a student driver's license and his desire to undergo driving
lessons during the time that he was not in his classrooms.

In learning how to drive while taking the vehicle home in the direction of Allan's house, Funtecha definitely
was not having a joy ride. Funtecha was not driving for the purpose of his enjoyment or for a "frolic of his
own" but ultimately, for the service for which the jeep was intended by the petitioner school. (See L.
Battistoni v. Thomas, Can SC 144, 1 D.L.R. 577, 80 ALR 722 [1932]; See also Association of Baptists for
World Evangelism, Inc. v. Fieldmen's Insurance Co., Inc. 124 SCRA 618 [1983]). Therefore, the Court is
constrained to conclude that the act of Funtecha in taking over the steering wheel was one done for and
in behalf of his employer for which act the petitioner-school cannot deny any responsibility by arguing that
it was done beyond the scope of his janitorial duties. The clause "within the scope of their assigned tasks"
for purposes of raising the presumption of liability of an employer, includes any act done by an employee,
in furtherance of the interests of the employer or for the account of the employer at the time of the
infliction of the injury or damage. (Manuel Casada, 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow,
the employee driving the vehicle derived some benefit from the act, the existence of a presumptive
liability of the employer is determined by answering the question of whether or not the servant was at the
time of the accident performing any act in furtherance of his master's business. (Kohlman v. Hyland, 210
NW 643, 50 ALR 1437 [1926]; Jameson v. Gavett, 71 P 2d 937 [1937])

Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the petitioner anchors
its defense, was promulgated by the Secretary of Labor and Employment only for the purpose of
administering and enforcing the provisions of the Labor Code on conditions of employment. Particularly,
Rule X of Book III provides guidelines on the manner by which the powers of the Labor Secretary shall be
exercised; on what records should be kept; maintained and preserved; on payroll; and on the exclusion of
working scholars from, and inclusion of resident physicians in the employment coverage as far as
compliance with the substantive labor provisions on working conditions, rest periods, and wages, is
concerned.

In other words, Rule X is merely a guide to the enforcement of the substantive law on labor. The Court,
thus, makes the distinction and so holds that Section 14, Rule X, Book III of the Rules is not the decisive
law in a civil suit for damages instituted by an injured person during a vehicular accident against a
working student of a school and against the school itself.

The present case does not deal with a labor dispute on conditions of employment between an alleged
employee and an alleged employer. It invokes a claim brought by one for damages for injury caused by
the patently negligent acts of a person, against both doer-employee and his employer. Hence, the
reliance on the implementing rule on labor to disregard the primary liability of an employer under Article
2180 of the Civil Code is misplaced. An implementing rule on labor cannot be used by an employer as a
shield to avoid liability under the substantive provisions of the Civil Code.

There is evidence to show that there exists in the present case an extra-contractual obligation arising
from the negligence or reckless imprudence of a person "whose acts or omissions are imputable, by a
legal fiction, to other(s) who are in a position to exercise an absolute or limited control over (him)." (Bahia
v. Litonjua and Leynes, 30 Phil. 624 [1915])

Funtecha is an employee of petitioner Filamer. He need not have an official appointment for a driver's
position in order that the petitioner may be held responsible for his grossly negligent act, it being sufficient
that the act of driving at the time of the incident was for the benefit of the petitioner. Hence, the fact that
Funtecha was not the school driver or was not acting within the scope of his janitorial duties does not
relieve the petitioner of the burden of rebutting the presumption juris tantum that there was negligence on
its part either in the selection of a servant or employee, or in the supervision over him. The petitioner has
failed to show proof of its having exercised the required diligence of a good father of a family over its
employees Funtecha and Allan.

The Court reiterates that supervision includes the formulation of suitable rules and regulations for the
guidance of its employees and the issuance of proper instructions intended for the protection of the public
and persons with whom the employer has relations through his employees. (Bahia v. Litonjua and
Leynes, supra, at p. 628; Phoenix Construction, v. Intermediate Appellate Court, 148 SCRA 353 [1987])

An employer is expected to impose upon its employees the necessary discipline called for in the
performance of any act indispensable to the business and beneficial to their employer.

In the present case, the petitioner has not shown that it has set forth such rules and guidelines as would
prohibit any one of its employees from taking control over its vehicles if one is not the official driver or
prohibiting the driver and son of the Filamer president from authorizing another employee to drive the
school vehicle. Furthermore, the petitioner has failed to prove that it had imposed sanctions or warned its
employees against the use of its vehicles by persons other than the driver.

The petitioner, thus, has an obligation to pay damages for injury arising from the unskilled manner by
which Funtecha drove the vehicle. (Cangco v. Manila Railroad Co., 38 Phil. 768, 772 [1918]). In the
absence of evidence that the petitioner had exercised the diligence of a good father of a family in the
supervision of its employees, the law imposes upon it the vicarious liability for acts or omissions of its
employees. (Umali v. Bacani, 69 SCRA 263 [1976]; Poblete v. Fabros, 93 SCRA 200 [1979]; Kapalaran
Bus Liner v. Coronado, 176 SCRA 792 [1989]; Franco v. Intermediate Appellate Court, 178 SCRA 331
[1989]; Pantranco North Express, Inc. v. Baesa, 179 SCRA 384 [1989]) The liability of the employer is,
under Article 2180, primary and solidary. However, the employer shall have recourse against the
negligent employee for whatever damages are paid to the heirs of the plaintiff.

It is an admitted fact that the actual driver of the school jeep, Allan Masa, was not made a party defendant
in the civil case for damages. This is quite understandable considering that as far as the injured
pedestrian, plaintiff Potenciano Kapunan, was concerned, it was Funtecha who was the one driving the
vehicle and presumably was one authorized by the school to drive. The plaintiff and his heirs should not
now be left to suffer without simultaneous recourse against the petitioner for the consequent injury
caused by a janitor doing a driving chore for the petitioner even for a short while. For the purpose of
recovering damages under the prevailing circumstances, it is enough that the plaintiff and the private
respondent heirs were able to establish the existence of employer-employee relationship between
Funtecha and petitioner Filamer and the fact that Funtecha was engaged in an act not for an independent
purpose of his own but in furtherance of the business of his employer. A position of responsibility on the
part of the petitioner has thus been satisfactorily demonstrated.

WHEREFORE, the motion for reconsideration of the decision dated October 16, 1990 is hereby
GRANTED. The decision of the respondent appellate court affirming the trial court decision is
REINSTATED.

SO ORDERED.

DIGEST:

FILAMER vs IAC

Daniel Funtecha was a working student at the Filamer Christian Institute. He was assigned as the school

janitor to clean the school 2 hours every morning. Allan Masa was the son of the school president and at

the same time he was the schools jeepney service driver. On October 20, 1977 at about 6:30pm, after

driving the students to their homes, Masa returned to the school to report and thereafter have to go home

with the jeep so that he could fetch the students early in the morning. Masa and Funtecha live in the

same place so they usually go home together. Funtecha had a student drivers license so Masa let him

take the drivers seat. While Funtecha was driving, he accidentally hit an elderly Kapunan which led to his

hospitalization for 20 days. Kapunan filed a criminal case and an independent civil action based on Article

2180 against Funtecha.

In the independent civil action, the lower court ruled that Filamer is subsidiarily liable for the tortious act of

Funcheta and was compelled to pay for damages based on Article 2180 which provides that employers
shall be liable for the damages caused by their employees and household helpers acting within the scope

of their assigned tasks. Filamer assailed the decision and it argued that under Section 14, Rule X, Book

III of the Labor Code IRR, working scholars are excluded from the employment coverage hence there is

no employer-employee relations between Filamer and Funcheta; that the negligent act of Funcheta was

due to negligence only attributable to him alone as it is outside his assigned task of being the school

janitor. The CA denied Filamers appeal but the Supreme Court agreed with Filamer. Kapunan filed for a

motion for reconsideration.

ISSUE: Whether or not Filamer should be held subsidiarily liable.

HELD: Yes. This time, the SC ruled in favor of Kapunan (actually his heirs cause by this time Kapunan

was already dead). The provisions of Section 14, Rule X, Book III of the Labor Code IRR was only meant

to provide guidelines as compliance with labor provisions on working conditions, rest periods, and wages

is concerned. This does not in any way affect the provisions of any other laws like the civil code. The IRR

cannot defeat the provisions of the Civil Code. In other words, Rule X is merely a guide to the

enforcement of the substantive law on labor. There is a distinction hence Section 14, Rule X, Book III of

the Rules is not the decisive law in a civil suit for damages instituted by an injured person during a

vehicular accident against a working student of a school and against the school itself.

The present case does not deal with a labor dispute on conditions of employment between an alleged

employee and an alleged employer. It invokes a claim brought by one for damages for injury caused by

the patently negligent acts of a person, against both doer-employee and his employer. Hence, the

reliance on the implementing rule on labor to disregard the primary liability of an employer under Article

2180 of the Civil Code is misplaced. An implementing rule on labor cannot be used by an employer as a

shield to void liability under the substantive provisions of the Civil Code.

Funtecha is an employee of Filamer. He need not have an official appointment for a drivers position in

order that Filamer may be held responsible for his grossly negligent act, it being sufficient that the act of

driving at the time of the incident was for the benefit of Filamer (the act of driving the jeep from the school

to Masas house is beneficial to the school because this enables Masa to do a timely school

transportation service in the morning). Hence, the fact that Funtecha was not the school driver or was not

acting with the scope of his janitorial duties does not relieve Filamer of the burden of rebutting the
presumption juris tantum that there was negligence on its part either in the selection of a servant or

employee, or in the supervision over him. Filamer has failed to show proof of its having exercised the

required diligence of a good father of a family over its employees Funtecha and Allan.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 122917 July 12, 1999

MARITES BERNARDO, et alvs.

NATIONAL LABOR RELATIONS COMMISSION and FAR EAST BANK AND TRUST COMPANY,
respondents.

PANGANIBAN, J.:

The Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same
terms and conditions of employment as qualified able-bodied employees. Once they have attained the
status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written
or verbal contracts to the contrary. This treatments is rooted not merely on charity or accomodation, but
on justice for all.

The Case

1 2
Challenged in the Petition for Certiorari before us is the June 20, 1995 Decision of the National Labor
 3
Relations Commission (NLRC), which affirmed the August, 22 1994 ruling of Labor Arbiter Cornelio L.
Linsangan. The labor arbiter's Decision disposed as follows: 4

WHEREFORE, judgment is hereby rendered dismissing the above-mentioned complaint for lack of merit.

5
Also assailed is the August 4, 1995 Resolution of the NLRC, which denied the Motion for
Reconsideration.

The Facts

6
The facts were summarized by the NLRC in this wise:

Complainants numbering 43 (p. 176, Records) are deaf-mutes who were hired on various periods from
1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters through a
uniformly worded agreement called "Employment Contract for Handicapped Workers". (pp. 68 & 69,
Records) The full text of said agreement is quoted below:

EMPLOYMENT CONTRACT FOR

HANDICAPPED WORKERS

This Contract, entered into by and between:

FAR EAST BANK AND TRUST COMPANY, a universal banking corporation duly organized and existing
under and by virtue of the laws of the Philippines, with business address at FEBTC Building, Muralla,
Intramuros, Manila, represented herein by its Assistant Vice President, MR. FLORENDO G. MARANAN,
(hereinafter referred to as the "BANK");

-and-

, years old, of legal age, , and residing at (hereinafter referred to as the

("EMPLOYEE").

WITNESSETH : That

WHEREAS, the BANK, cognizant of its social responsibility, realizes that there is a need to provide
disabled and handicapped persons gainful employment and opportunities to realize their potentials, uplift
their socio-economic well being and welfare and make them productive, self-reliant and useful citizens to
enable them to fully integrate in the mainstream of society;

WHEREAS, there are certain positions in the BANK which may be filled-up by disabled and handicapped
persons, particularly deaf-mutes, and the BANK ha[s] been approached by some civic-minded citizens
and authorized government agencies [regarding] the possibility of hiring handicapped workers for these
positions;

WHEREAS, the EMPLOYEE is one of those handicapped workers who [were] recommended for possible
employment with the BANK;

NOW, THEREFORE, for and in consideration of the foregoing premises and in compliance with Article 80
of the Labor Code of the Philippines as amended, the BANK and the EMPLOYEE have entered into this
Employment Contract as follows:

1. The BANK agrees to employ and train the EMPLOYEE, and the EMPLOYEE agrees to diligently and
faithfully work with the BANK, as Money Sorter and Counter.

2. The EMPLOYEE shall perform among others, the following duties and responsibilities:

i. Sort out bills according to color;

ii. Count each denomination per hundred, either manually or with the aid of a counting machine;

iii. Wrap and label bills per hundred;

iv. Put the wrapped bills into bundles; and

v. Submit bundled bills to the bank teller for verification.

3. The EMPLOYEE shall undergo a training period of one (1) month, after which the BANK shall
determine whether or not he/she should be allowed to finish the remaining term of this Contract.

4. The EMPLOYEE shall be entitled to an initial compensation of P118.00 per day, subject to adjustment
in the sole judgment of the BANK, payable every 15th and end of the month.1wphi1.nt

5. The regular work schedule of the EMPLOYEE shall be five (5) days per week, from Mondays thru
Fridays, at eight (8) hours a day. The EMPLOYEE may be required to perform overtime work as
circumstance may warrant, for which overtime work he/she [shall] be paid an additional compensation of
125% of his daily rate if performed during ordinary days and 130% if performed during Saturday or [a] rest
day.

6. The EMPLOYEE shall likewise be entitled to the following benefits:

i. Proportionate 13th month pay based on his basic daily wage.

ii. Five (5) days incentive leave.

iii. SSS premium payment.

7. The EMPLOYEE binds himself/herself to abide [by] and comply with all the BANK Rules and
Regulations and Policies, and to conduct himself/herself in a manner expected of all employees of the
BANK.

8. The EMPLOYEE acknowledges the fact that he/she had been employed under a special employment
program of the BANK, for which reason the standard hiring requirements of the BANK were not applied in
his/her case. Consequently, the EMPLOYEE acknowledges and accepts the fact that the terms and
conditions of the employment generally observed by the BANK with respect to the BANK's regular
employee are not applicable to the EMPLOYEE, and that therefore, the terms and conditions of the
EMPLOYEE's employment with the BANK shall be governed solely and exclusively by this Contract and
by the applicable rules and regulations that the Department of Labor and Employment may issue in
connection with the employment ofdisabled and handicapped workers. More specifically, the EMPLOYEE
hereby acknowledges that the provisions of Book Six of the Labor Code of the Philippines as amended,
particularly on regulation of employment and separation pay are not applicable to him/her.

9. The Employment Contract shall be for a period of six (6) months or from to unless earlier
terminated by the BANK for any just or reasonable cause. Any continuation or extension of this Contract
shall be in writing and therefore this Contract will automatically expire at the end of its terms unless
renewed in writing by the BANK.

IN WITNESS WHEREOF, the parties, have hereunto affixed their signature[s] this day of ,
at Intramuros, Manila, Philippines.

In 1988, two (2) deaf-mutes were hired under this Agreement; in 1989 another two (2); in 1990, nineteen
(19); in 1991 six (6); in 1992, six (6) and in 1993, twenty-one (21). Their employment[s] were renewed
every six months such that by the time this case arose, there were fifty-six (56) deaf-mutes who were
employed by respondent under the said employment agreement. The last one was Thelma Malindoy who
was employed in 1992 and whose contract expired on July 1993.

xxx xxx xxx

Disclaiming that complainants were regular employees, respondent Far East Bank and Trust Company
maintained that complainants who are a special class of workers the hearing impaired employees were
hired temporarily under [a] special employment arrangement which was a result of overtures made by
some civic and political personalities to the respondent Bank; that complainant[s] were hired due to
"pakiusap" which must be considered in the light of the context career and working environment which is
to maintain and strengthen a corps of professionals trained and qualified officers and regular employees
who are baccalaureate degree holders from excellent schools which is an unbending policy in the hiring
of regular employees; that in addition to this, training continues so that the regular employee grows in the
corporate ladder; that the idea of hiring handicapped workers was acceptable to them only on a special
arrangement basis; that it was adopted the special program to help tide over a group of workers such as
deaf-mutes like the complainants who could do manual work for the respondent Bank; that the task of
counting and sorting of bills which was being performed by tellers could be assigned to deaf-mutes that
the counting and sorting of money are tellering works which were always logically and naturally part and
parcel of the tellers' normal functions; that from the beginning there have been no separate items in the
respondent Bank plantilla for sortes or counters; that the tellers themselves already did the sorting and
counting chore as a regular feature and integral part of their duties (p. 97, Records); that through the
"pakiusap" of Arturo Borjal, the tellers were relieved of this task of counting and sorting bills in favor of
deaf-mutes without creating new positions as there is no position either in the respondent or in any other
bank in the Philippines which deals with purely counting and sorting of bills in banking operations.

7
Petitioners specified when each of them was hired and dimissed, viz:

NAME OF PETITIONER WORKPLACE Date Hired Date Dismissed

1. MARITES BERNARDO Intramuros 12-Nov-90 17-Nov-93

2. ELVIRA GO DIAMANTE Intramuros 24-Jan-90 11-Jan-94

3. REBECCA E. DAVID Intramuros 16-Apr-90 23-Oct-93

4. DAVID P. PASCUAL Bel-Air 15-Oct-88 21-Nov-94

5. RAQUEL ESTILLER Intramuros 2-Jul-92 4-Jan-94

6. ALBERT HALLARE West 4-Jan-91 9-Jan-94

7. EDMUND M. CORTEZ Bel-Air 15-Jan-91 3-Dec-93

8. JOSELITO O. AGDON Intramuros 5-Nov-90 17-Nov-93

9. GEORGE P. LIGUTAN JR. Intramuros 6-Sep-89 19-Jan-94

10. CELSO M. YAZAR Intramuros 8-Feb-93 8-Aug-93

11. ALEX G. CORPUZ Intramuros 15-Feb-93 15-Aug-93

12. RONALD M. DELFIN Intramuros 22-Feb-93 22-Aug-93

13. ROWENA M. TABAQUERO Intramuros 22-Feb-93 22-Aug-93

14. CORAZON C. DELOS REYES Intramuros 8-Feb-93 8-Aug-93

15. ROBERT G. NOORA Intramuros 15-Feb-93 15-Aug-93

16. MILAGROS O. LEQUIGAN Intramuros 1-Feb-93 1-Aug-93

17. ADRIANA F. TATLONGHARI Intramuros 22-Jan-93 22-Jul-93

18. IKE CABUNDUCOS Intramuros 24-Feb-93 24-Aug-93

19. COCOY NOBELLO Intramuros 22-Feb-93 22-Aug-93

12. RONALD M. DELFIN Intramuros 22-Feb-93 22-Aug-93

13. ROWENA M. TABAQUERO Intramuros 22-Feb-93 22-Aug-93

14. CORAZON C. DELOS REYES Intramuros 8-Feb-93 8-Aug-93

15. ROBERT G. NOORA Intramuros 15-Feb-93 15-Aug-93

16. MILAGROS O. LEQUIGAN Intramuros 1-Feb-93 1-Aug-93

17. ADRIANA F. TATLONGHARI Intramuros 22-Jan-93 22-Jul-93

18. IKE CABUNDUCOS Intramuros 24-Feb-93 24-Aug-93

19. COCOY NOBELLO Intramuros 22-Feb-93 22-Aug-93

20. DORENDA CATIMBUHAN Intramuros 15-Feb-93 15-Aug-93

21. ROBERT MARCELO West 31 JUL 93 8 1-Aug-93

22. LILIBETH Q. MARMOLEJO West 15-Jun-90 21-Nov-93

23. JOSE E. SALES West 6-Aug-92 12-Oct-93

24. ISABEL MAMAUAG West 8-May-92 10-Nov-93

25. VIOLETA G. MONTES Intramuros 2-Feb-90 15-Jan-94

26. ALBINO TECSON Intramuros 7-Nov-91 10-Nov-93

27. MELODY B. GRUELA West 28-Oct-91 3-Nov-93

28. BERNADETH D. AGERO West 19-Dec-90 27-Dec-93

29. CYNTHIA DE VERA Bel-Air 26-Jun-90 3-Dec-93

30. LANI R. CORTEZ Bel-Air 15-Oct-88 10-Dec-93

31. MARIA ISABEL B.CONCEPCION West 6-Sep-90 6-Feb-94

32. DINDO VALERIO Intramuros 30-May-93 30-Nov-93

33. ZENAIDA MATA Intramuros 10-Feb-93 10-Aug-93

34. ARIEL DEL PILAR Intramuros 24-Feb-93 24-Aug-93

35. MARGARET CECILIA CANOZA Intramuros 27-Jul-90 4-Feb-94

36. THELMA SEBASTIAN Intramuros 12-Nov-90 17-Nov-93

37. MA. JEANETTE CERVANTES West 6-Jun-92 7-Dec-93

38. JEANNIE RAMIL Intramuros 23-Apr-90 12-Oct-93

39. ROZAIDA PASCUAL Bel-Air 20-Apr-89 29-Oct-93

40. PINKY BALOLOA West 3-Jun-91 2-Dec-93

41. ELIZABETH VENTURA West 12-Mar-90 FEB 94 [sic]

42. GRACE S. PARDO West 4-Apr-90 13-Mar-94

43. RICO TIMOSA Intramuros 28-Apr-93 28-Oct-93

As earlier noted, the labor arbiter and, on appeal, the NLRC ruled against herein petitioners. Hence, this
9
recourse to this Court.
The Ruling of the NLRC

In affirming the ruling of the labor arbiter that herein petitioners could not be deemed regular employees
under Article 280 of the Labor Code, as amended, Respondent Commission ratiocinated as follows:

We agree that Art. 280 is not controlling herein. We give due credence to the conclusion that
complainants were hired as an accommodation to [the] recommendation of civic oriented personalities
whose employment[s] were covered by . . . Employment Contract[s] with special provisions on duration of
contract as specified under Art. 80. Hence, as correctly held by the Labor Arbiter a quo, the terms of the
10
contract shall be the law between the parties.

The NLRC also declared that the Magna Carta for Disabled Persons was not applicable, "considering the
prevailing circumstances/milieu of the case."

Issues

In their Memorandum, petitioners cite the following grounds in support of their cause:

I. The Honorable Commission committed grave abuse of discretion in holding that the petitioners
money sorters and counters working in a bank were not regular employees.

II. The Honorable Commission committed grave abuse of discretion in holding that the employment
contracts signed and renewed by the petitioners which provide for a period of six (6) months were
valid.

III. The Honorable Commission committed grave abuse of discretion in not applying the provisions of the
Magna Carta for the Disabled (Republic Act No. 7277), on proscription against discrimination against
11
disabled persons.

In the main, the Court will resolve whether petitioners have become regular employees.

This Court's Ruling

The petition is meritorious. However, only the employees, who worked for more than six months and
whose contracts were renewed are deemed regular. Hence, their dismissal from employement was
illegal.

Preliminary Matter:

Propriety of Certiorari

Respondent Far East Bank and Trust Company argues that a review of the findings of facts of the NLRC
is not allowed in a petition for certiorari. Specifically, it maintains that the Court cannot pass upon the
findings of public respondent that petitioners were not regular employees.

True, the Court, as a rule, does not review the factual findings of public respondents in a certiorari
proceeding. In resolving whether the petitioners have become regular employees, we shall not change
the facts found by the public respondent. Our task is merely to determine whether the NLRC committed
grave abuse of discretion in applying the law to the established facts, as above-quoted from the assailed
Decision.

Main Issue

Are Petitioners Regular Employee?

Petitioners maintain that they should be considered regular employees, because their task as money
sorters and counters was necessary and desirable to the business of respondent bank. They further
allege that their contracts served merely to preclude the application of Article 280 and to bar them from
becoming regular employees.

Private respondent, on the other hand, submits that petitioners were hired only as "special workers and
12
should not in any way be considered as part of the regular complement of the Bank." Rather, they
were "special" workers under Article 80 of the Labor Code. Private respondent contends that it never
solicited the services of petitioners, whose employment was merely an "accommodation" in response to
the requests of government officials and civic-minded citizens. They were told from the start, "with the
assistance of government representatives," that they could not become regular employees because there
were no plantilla positions for "money sorters," whose task used to be performed by tellers. Their
contracts were renewed several times, not because of need "but merely for humanitarian reasons."
Respondent submits that "as of the present, the "special position" that was created for the petitioners no
longer exist[s] in private respondent [bank], after the latter had decided not to renew anymore their
special employment contracts."

At the outset, let it be known that this Court appreciates the nobility of private respondent's effort to
provide employment to physically impaired individuals and to make them more productive members of
society. However, we cannot allow it to elude the legal consequences of that effort, simply because it now
deems their employment irrelevant. The facts, viewed in light of the Labor Code and the Magna Carta for
Disabled Persons, indubitably show that the petitioners, except sixteen of them, should be deemed
regular employees. As such, they have acquired legal rights that this Court is duty-bound to protect and
uphold, not as a matter of compassion but as a consequence of law and justice.

The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of
one month, after which the employer shall determine whether or not they should be allowed to finish the
6-month term of the contract. Furthermore, the employer may terminate the contract at any time for a just
and reasonable cause. Unless renewed in writing by the employer, the contract shall automatically expire
at the end of the term.1wphi1.nt

According to private respondent, the employment contracts were prepared in accordance with Article 80
of the Labor code, which provides;

Art. 80. Employment agreement. Any employer who employs handicapped workers shall enter into an
employment agreement with them, which agreement shall include:

(a) The names and addresses of the handicapped workers to be employed;

(b) The rate to be paid the handicapped workers which shall be not less than seventy five (75%) per cent
of the applicable legal minimum wage;

(c) The duration of employment period; and

(d) The work to be performed by handicapped workers.

The employment agreement shall be subject to inspection by the Secretary of Labor or his duly
authorized representatives.

The stipulations in the employment contracts indubitably conform with the aforecited provision.
13
Succeeding events and the enactment of RA No. 7277 (the Magna Carta for Disabled Persons),
however, justify the application of Article 280 of the Labor Code.

Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed
the contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the
contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were
beneficial and necessary to the bank. More important, these facts show that they were qualified to
perform the responsibilities of their positions. In other words, their disability did not render them
unqualified or unfit for the tasks assigned to them.

In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should
be given the same terms and conditions of employment as a qualified able-bodied person. Section 5 of
the Magna Carta provides:

Sec. 5. Equal Opportunity for Employment. No disabled person shall be denied access to opportunities
for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions
of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances
as a qualified able bodied person.

The fact that the employees were qualified disabled persons necessarily removes the employment
contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-
bodied persons, they are thus covered by Article 280 of the Labor Code, which provides:

Art. 280. Regular and Casual Employment. The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to
be regular where the employee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer, except where the employment has been fixed for
a specific project or undertaking the completion or termination of which has been determined at the time
of the engagement of the employee or where the work or services to be performed is seasonal in nature
and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided,
That, any employee who has rendered at least one year of service, whether such service is continuous or
broken, shall be considered as regular employee with respect to the activity in which he is employed and
his employment shall continue while such activity exists.

The test of whether an employee is regular was laid down in De Leon v. NLRC, 14 in which this Court
held:

The primary standard, therefore, of determining regular employment is the reasonable connection
between the particular activity performed by the employee in relation to the usual trade or business of the
employer. The test is whether the former is usually necessary or desirable in the usual business or trade
of the employer. The connection can be determined by considering the nature of the work performed and
its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been
performing the job for at least one year, even if the performance is not continuous and merely intermittent,
the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if
not indispensibility of that activity to the business. Hence, the employment is considered regular, but only
with respect to such activity, and while such activity exist.

Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of
respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than
six months. Thus, the following twenty-seven petitioners should be deemed regular employees: Marites
Bernardo, Elvira Go Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare,
Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel
Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera,
Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret Cecilia Canoza, Thelma Sebastian, Ma. Jeanette
Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo.
As held by the Court, "Articles 280 and 281 of the Labor Code put an end to the pernicious practice of
making permanent casuals of our lowly employees by the simple expedient of extending to them
15
probationary appointments,ad infinitum." The contract signed by petitioners is akin to a probationary
employment, during which the bank determined the employees' fitness for the job. When the bank
renewed the contract after the lapse of the six-month probationary period, the employees thereby became
16
regular employees. No employer is allowed to determine indefinitely the fitness of its employees.

As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services
17
may be terminated only for a just or authorized cause. Because respondent failed to show such cause,
these twenty-seven petitioners are deemed illegally dismissed and therefore entitled to back wages and
18
reinstatement without loss of seniority rights and other privileges. Considering the allegation of
respondent that the job of money sorting is no longer available because it has been assigned back to the
18
tellers to whom it originally belonged, petitioners are hereby awarded separation pay in lieu of
20
reinstatement.

Because the other sixteen worked only for six months, they are not deemed regular employees and
hence not entitled to the same benefits.

Applicability of the

Brent Ruling

21
Respondent bank, citing Brent School v. Zamora in which the Court upheld the validity of an
employment contract with a fixed term, argues that the parties entered into the contract on equal footing.
It adds that the petitioners had in fact an advantage, because they were backed by then DSWD Secretary
Mita Pardo de Tavera and Representative Arturo Borjal.

We are not persuaded. The term limit in the contract was premised on the fact that the petitioners were
disabled, and that the bank had to determine their fitness for the position. Indeed, its validity is based on
Article 80 of the Labor Code. But as noted earlier, petitioners proved themselves to be qualified disabled
persons who, under the Magna Carta for Disabled Persons, are entitled to terms and conditions of
employment enjoyed by qualified able-bodied individuals; hence, Article 80 does not apply because
petitioners are qualified for their positions. The validation of the limit imposed on their contracts, imposed
by reason of their disability, was a glaring instance of the very mischief sought to be addressed by the
new law.

Moreover, it must be emphasized that a contract of employment is impressed with public interest. 22
Provisions of applicable statutes are deemed written into the contract, and the "parties are not at liberty to
insulate themselves and their relationships from the impact of labor laws and regulations by simply
23
contracting with each other." Clearly, the agreement of the parties regarding the period of employment
cannot prevail over the provisions of the Magna Carta for Disabled Persons, which mandate that
petitioners must be treated as qualified able-bodied employees.

Respondent's reason for terminating the employment of petitioners is instructive. Because the Bangko
Sentral ng Pilipinas (BSP) required that cash in the bank be turned over to the BSP during business
hours from 8:00 a.m. to 5:00 p.m., respondent resorted to nighttime sorting and counting of money. Thus,
it reasons that this task "could not be done by deaf mutes because of their physical limitations as it is very
24
risky for them to travel at night." We find no basis for this argument. Travelling at night involves risks to
handicapped and able-bodied persons alike. This excuse cannot justify the termination of their
employment.

Other Grounds Cited by Respondent

Respondent argues that petitioners were merely "accommodated" employees. This fact does not change
the nature of their employment. As earlier noted, an employee is regular because of the nature of work
and the length of service, not because of the mode or even the reason for hiring them.

Equally unavailing are private respondent's arguments that it did not go out of its way to recruit
25
petitioners, and that its plantilla did not contain their positions. In L. T. Datu v. NLRC, the Court held
that "the determination of whether employment is casual or regular does not depend on the will or word of
the employer, and the procedure of hiring . . . but on the nature of the activities performed by the
employee, and to some extent, the length of performance and its continued existence."

Private respondent argues that the petitioners were informed from the start that they could not become
regular employees. In fact, the bank adds, they agreed with the stipulation in the contract regarding this
point. Still, we are not persuaded. The well-settled rule is that the character of employment is determined
26
not by stipulations in the contract, but by the nature of the work performed. Otherwise, no employee
can become regular by the simple expedient of incorporating this condition in the contract of employment.

27
In this light, we iterate our ruling in Romares v. NLRC:

Art. 280 was emplaced in our statute books to prevent the circumvention of the employee's right to be
secure in his tenure by indiscriminately and completely ruling out all written and oral agreements
inconsistent with the concept of regular employment defined therein. Where an employee has been
engaged to perform activities which are usually necessary or desirable in the usual business of the
employer, such employee is deemed a regular employee and is entitled to security of tenure
notwithstanding the contrary provisions of his contract of employment.

xxx xxx xxx

At this juncture, the leading case of Brent School, Inc. v. Zamora proves instructive. As reaffirmed in
subsequent cases, this Court has upheld the legality of fixed-term employment. It ruled that the decisive
determinant in "term employment" should not be the activities that the employee is called upon to perform
but the day certain agreed upon the parties for the commencement and termination of their employment
relationship. But this Court went on to say that where from the circumstances it is apparent that the
periods have been imposed to preclude acquisition of tenurial security by the employee, they should be
struck down or disregarded as contrary to public policy and morals.

In rendering this Decision, the Court emphasizes not only the constitutional bias in favor of the working
class, but also the concern of the State for the plight of the disabled. The noble objectives of Magna Carta
for Disabled Persons are not based merely on charity or accommodation, but on justice and the equal
treatment of qualifiedpersons, disabled or not. In the present case, the handicap of petitioners (deaf-
mutes) is not a hindrance to their work. The eloquent proof of this statement is the repeated renewal of
their employment contracts. Why then should they be dismissed, simply because they are physically
impaired? The Court believes, that, after showing their fitness for the work assigned to them, they should
be treated and granted the same rights like any other regular employees.

28
In this light, we note the Office of the Solicitor General's prayer joining the petitioners' cause.

WHEREFORE, premises considered, the Petition is hereby GRANTED. The June 20, 1995 Decision and
the August 4, 1995 Resolution of the NLRC are REVERSED and SET ASIDE. Respondent Far East Bank
and Trust Company is hereby ORDERED to pay back wages and separation pay to each of the following
twenty-seven (27) petitioners, namely, Marites Bernardo, Elvira Go Diamante, Rebecca E. David, David
P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr.,
Liliberh Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V.
Gruela, Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret
Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky
Baloloa, Elizabeth Ventura and Grace S. Pardo. The NLRC is hereby directed to compute the exact
amount due each of said employees, pursuant to existing laws and regulations, within fifteen days from
the finality of this Decision. No costs.1wphi1.nt

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 168081 October 17, 2008
ARMANDO G. YRASUEGUI, petitioners,
vs.
PHILIPPINE AIRLINES, INC., respondents.
DECISION
REYES, R.T., J.:

THIS case portrays the peculiar story of an international flight steward who was dismissed because of his
failure to adhere to the weight standards of the airline company.

He is now before this Court via a petition for review on certiorari claiming that he was illegally dismissed.
To buttress his stance, he argues that (1) his dismissal does not fall under 282(e) of the Labor Code; (2)
continuing adherence to the weight standards of the company is not a bona fide occupational
qualification; and (3) he was discriminated against because other overweight employees were promoted
instead of being disciplined.

After a meticulous consideration of all arguments pro and con, We uphold the legality of dismissal.
Separation pay, however, should be awarded in favor of the employee as an act of social justice or based
on equity. This is so because his dismissal is not for serious misconduct. Neither is it reflective of his
moral character.

The Facts

Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine Airlines, Inc.
(PAL). He stands five feet and eight inches (58") with a large body frame. The proper weight for a man of
his height and body structure is from 147 to 166 pounds, the ideal weight being 166 pounds, as mandated
1
by the Cabin and Crew Administration Manual of PAL.

The weight problem of petitioner dates back to 1984. Back then, PAL advised him to go on an extended
vacation leave from December 29, 1984 to March 4, 1985 to address his weight concerns. Apparently,
petitioner failed to meet the companys weight standards, prompting another leave without pay from
March 5, 1985 to November 1985.

After meeting the required weight, petitioner was allowed to return to work. But petitioners weight
problem recurred. He again went on leave without pay from October 17, 1988 to February 1989.

On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his ideal weight. In line with company
policy, he was removed from flight duty effective May 6, 1989 to July 3, 1989. He was formally requested
to trim down to his ideal weight and report for weight checks on several dates. He was also told that he
may avail of the services of the company physician should he wish to do so. He was advised that his case
will be evaluated on July 3, 1989.2

On February 25, 1989, petitioner underwent weight check. It was discovered that he gained, instead of
losing, weight. He was overweight at 215 pounds, which is 49 pounds beyond the limit. Consequently, his
off-duty status was retained.

On October 17, 1989, PAL Line Administrator Gloria Dizon personally visited petitioner at his residence to
check on the progress of his effort to lose weight. Petitioner weighed 217 pounds, gaining 2 pounds from
3
his previous weight. After the visit, petitioner made a commitment to reduce weight in a letter addressed
to Cabin Crew Group Manager Augusto Barrios. The letter, in full, reads:

Dear Sir:

I would like to guaranty my commitment towards a weight loss from 217 pounds to 200 pounds from
today until 31 Dec. 1989.

From thereon, I promise to continue reducing at a reasonable percentage until such time that my ideal
weight is achieved.

Likewise, I promise to personally report to your office at the designated time schedule you will set for my
weight check.

Respectfully Yours,

4
F/S Armando Yrasuegui

Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained
overweight. On January 3, 1990, he was informed of the PAL decision for him to remain grounded until
such time that he satisfactorily complies with the weight standards. Again, he was directed to report every
two weeks for weight checks.

Petitioner failed to report for weight checks. Despite that, he was given one more month to comply with
the weight requirement. As usual, he was asked to report for weight check on different dates. He was
reminded that his grounding would continue pending satisfactory compliance with the weight standards.5

Again, petitioner failed to report for weight checks, although he was seen submitting his passport for
processing at the PAL Staff Service Division.

On April 17, 1990, petitioner was formally warned that a repeated refusal to report for weight check would
6
be dealt with accordingly. He was given another set of weight check dates. Again, petitioner ignored the
directive and did not report for weight checks. On June 26, 1990, petitioner was required to explain his
 7
refusal to undergo weight checks.

When petitioner tipped the scale on July 30, 1990, he weighed at 212 pounds. Clearly, he was still way
over his ideal weight of 166 pounds.

From then on, nothing was heard from petitioner until he followed up his case requesting for leniency on
the latter part of 1992. He weighed at 219 pounds on August 20, 1992 and 205 pounds on November 5,
1992.

On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for violation of
company standards on weight requirements. He was given ten (10) days from receipt of the charge within
8
which to file his answer and submit controverting evidence.

9
On December 7, 1992, petitioner submitted his Answer. Notably, he did not deny being overweight.
What he claimed, instead, is that his violation, if any, had already been condoned by PAL since "no action
has been taken by the company" regarding his case "since 1988." He also claimed that PAL discriminated
against him because "the company has not been fair in treating the cabin crew members who are
similarly situated."

On December 8, 1992, a clarificatory hearing was held where petitioner manifested that he was
undergoing a weight reduction program to lose at least two (2) pounds per week so as to attain his ideal
10
weight.

On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his ideal
weight, "and considering the utmost leniency" extended to him "which spanned a period covering a total
11
of almost five (5) years," his services were considered terminated "effective immediately."

12
His motion for reconsideration having been denied, petitioner filed a complaint for illegal dismissal
against PAL.

Labor Arbiter, NLRC and CA Dispositions

13
On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled that petitioner was illegally dismissed.
The dispositive part of the Arbiter ruling runs as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered, declaring the complainants
dismissal illegal, and ordering the respondent to reinstate him to his former position or substantially
equivalent one, and to pay him:

a. Backwages of Php10,500.00 per month from his dismissal on June 15, 1993 until reinstated, which for
purposes of appeal is hereby set from June 15, 1993 up to August 15, 1998 at P651,000.00;
b. Attorneys fees of five percent (5%) of the total award.

14
SO ORDERED.

The Labor Arbiter held that the weight standards of PAL are reasonable in view of the nature of the job of
15
petitioner. However, the weight standards need not be complied with under pain of dismissal since his
16
weight did not hamper the performance of his duties. Assuming that it did, petitioner could be
17
transferred to other positions where his weight would not be a negative factor. Notably, other
overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were promoted instead of being
18
disciplined.

19
Both parties appealed to the National Labor Relations Commission (NLRC).

On October 8, 1999, the Labor Arbiter issued a writ of execution directing the reinstatement of petitioner
20
without loss of seniority rights and other benefits.

21 22
On February 1, 2000, the Labor Arbiter denied the Motion to Quash Writ of Execution of PAL.

23
On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC.

24
On June 23, 2000, the NLRC rendered judgment in the following tenor:

WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18 November 1998 as modified
by our findings herein, is hereby AFFIRMED and that part of the dispositive portion of said decision
concerning complainants entitlement to backwages shall be deemed to refer to complainants entitlement
to his full backwages, inclusive of allowances and to his other benefits or their monetary equivalent
instead of simply backwages, from date of dismissal until his actual reinstatement or finality hereof.
Respondent is enjoined to manifests (sic) its choice of the form of the reinstatement of complainant,
whether physical or through payroll within ten (10) days from notice failing which, the same shall be
deemed as complainants reinstatement through payroll and execution in case of non-payment shall
accordingly be issued by the Arbiter. Both appeals of respondent thus, are DISMISSED for utter lack of
25
merit.

According to the NLRC, "obesity, or the tendency to gain weight uncontrollably regardless of the amount
of food intake, is a disease in itself."26 As a consequence, there can be no intentional defiance or serious
27
misconduct by petitioner to the lawful order of PAL for him to lose weight.

Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable. However, it found
as unnecessary the Labor Arbiter holding that petitioner was not remiss in the performance of his duties
as flight steward despite being overweight. According to the NLRC, the Labor Arbiter should have limited
himself to the issue of whether the failure of petitioner to attain his ideal weight constituted willful defiance
 28
of the weight standards of PAL.

29
PAL moved for reconsideration to no avail. Thus, PAL elevated the matter to the Court of Appeals (CA)
30
via a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure.

31
By Decision dated August 31, 2004, the CA reversed the NLRC:

WHEREFORE, premises considered, we hereby GRANT the petition. The assailed NLRC decision is
declared NULL and VOID and is hereby SET ASIDE. The private respondents complaint is hereby
DISMISSED. No costs.

32
SO ORDERED.

The CA opined that there was grave abuse of discretion on the part of the NLRC because it "looked at
33
wrong and irrelevant considerations" in evaluating the evidence of the parties. Contrary to the NLRC
ruling, the weight standards of PAL are meant to be a continuing qualification for an employees position.
34
The failure to adhere to the weight standards is an analogous cause for the dismissal of an employee
under Article 282(e) of the Labor Code in relation to Article 282(a). It is not willful disobedience as the
35
NLRC seemed to suggest. Said the CA, "the element of willfulness that the NLRC decision cites is an
36
irrelevant consideration in arriving at a conclusion on whether the dismissal is legally proper." In other
words, "the relevant question to ask is not one of willfulness but one of reasonableness of the standard
37
and whether or not the employee qualifies or continues to qualify under this standard."

Just like the Labor Arbiter and the NLRC, the CA held that the weight standards of PAL are reasonable.
38
Thus, petitioner was legally dismissed because he repeatedly failed to meet the prescribed weight
39
standards. It is obvious that the issue of discrimination was only invoked by petitioner for purposes of
40
escaping the result of his dismissal for being overweight.

41
On May 10, 2005, the CA denied petitioners motion for reconsideration. Elaborating on its earlier
ruling, the CA held that the weight standards of PAL are a bona fide occupational qualification which, in
42
case of violation, "justifies an employees separation from the service."

Issues

In this Rule 45 petition for review, the following issues are posed for resolution:

I.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THATPETITIONERS

OBESITY CAN BE A GROUND FOR DISMISSAL UNDER PARAGRAPH (e) OF ARTICLE 282 OF THE
LABOR CODE OF THE PHILIPPINES;
II.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THATPETITIONERS

DISMISSAL FOR OBESITY CAN BE PREDICATED ON THE "BONA FIDE OCCUPATIONAL
QUALIFICATION (BFOQ) DEFENSE";

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER
WAS NOT UNDULY DISCRIMINATED AGAINST WHEN HE WAS DISMISSED WHILE OTHER
OVERWEIGHT CABIN ATTENDANTS WERE EITHER GIVEN FLYING DUTIES OR PROMOTED;

IV.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED WHEN IT BRUSHED ASIDE
PETITIONERS CLAIMS FOR REINSTATEMENT [AND] WAGES ALLEGEDLY FOR BEING MOOT AND
ACADEMIC.43 (Underscoring supplied)

Our Ruling

44
I. The obesity of petitioner is a ground for dismissal under Article 282(e) of the Labor Code.

A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a
continuing qualification of an employee in order to keep the job. Tersely put, an employee may be
dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight
standards. The dismissal of the employee would thus fall under Article 282(e) of the Labor Code. As
explained by the CA:

x x x [T]he standards violated in this case were not mere "orders" of the employer; they were the
"prescribed weights" that a cabin crew must maintain in order to qualify for and keep his or her
position in the company. In other words, they were standards that establish continuing qualifications
for an employees position. In this sense, the failure to maintain these standards does not fall under
Article 282(a) whose express terms require the element of willfulness in order to be a ground for
dismissal. The failure to meet the employers qualifying standards is in fact a ground that does not
squarely fall under grounds (a) to (d) and is therefore one that falls under Article 282(e) the "other
causes analogous to the foregoing."

By its nature, these "qualifying standards" are norms that apply prior to and after an employee is hired.
They apply prior to employment because these are the standards a job applicant must initially meet in
order to be hired. They apply after hiring because an employee must continue to meet these standards
while on the job in order to keep his job. Under this perspective, a violation is not one of the faults for
which an employee can be dismissed pursuant to pars. (a) to (d) of Article 282; the employee can be
dismissed simply because he no longer "qualifies" for his job irrespective of whether or not the failure to
45
qualify was willful or intentional. x x x

Petitioner, though, advances a very interesting argument. He claims that obesity is a "physical
46 47
abnormality and/or illness." Relying on Nadura v. Benguet Consolidated, Inc., he says his dismissal
is illegal:

Conscious of the fact that Naduras case cannot be made to fall squarely within the specific causes
enumerated in subparagraphs 1(a) to (e), Benguet invokes the provisions of subparagraph 1(f) and says
that Naduras illness occasional attacks of asthma is a cause analogous to them.

Even a cursory reading of the legal provision under consideration is sufficient to convince anyone that, as
the trial court said, "illness cannot be included as an analogous cause by any stretch of imagination."

It is clear that, except the just cause mentioned in sub-paragraph 1(a), all the others expressly
enumerated in the law are due to the voluntary and/or willful act of the employee. How Naduras illness
could be considered as "analogous" to any of them is beyond our understanding, there being no claim or
48
pretense that the same was contracted through his own voluntary act.

The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different from the case
at bar.First, Nadura was not decided under the Labor Code. The law applied in that case was Republic
Act (RA) No. 1787.Second, the issue of flight safety is absent in Nadura, thus, the rationale there cannot
apply here. Third, in Nadura, the employee who was a miner, was laid off from work because of illness,
i.e., asthma. Here, petitioner was dismissed for his failure to meet the weight standards of PAL. He was
not dismissed due to illness. Fourth, the issue in Nadura is whether or not the dismissed employee is
entitled to separation pay and damages. Here, the issue centers on the propriety of the dismissal of
petitioner for his failure to meet the weight standards of PAL. Fifth, inNadura, the employee was not
accorded due process. Here, petitioner was accorded utmost leniency. He was given more than four (4)
years to comply with the weight standards of PAL.

In the case at bar, the evidence on record militates against petitioners claims that obesity is a disease.
That he was able to reduce his weight from 1984 to 1992 clearly shows that it is possible for him to lose
weight given the proper attitude, determination, and self-discipline. Indeed, during the clarificatory hearing
on December 8, 1992, petitioner himself claimed that "[t]he issue is could I bring my weight down to ideal
49
weight which is 172, then the answer is yes. I can do it now."

50
True, petitioner claims that reducing weight is costing him "a lot of expenses." However, petitioner has
only himself to blame. He could have easily availed the assistance of the company physician, per the
51
advice of PAL. He chose to ignore the suggestion. In fact, he repeatedly failed to report when required
to undergo weight checks, without offering a valid explanation. Thus, his fluctuating weight indicates
absence of willpower rather than an illness.

Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation and
Hospitals,52decided by the United States Court of Appeals (First Circuit). In that case, Cook worked from
1978 to 1980 and from 1981 to 1986 as an institutional attendant for the mentally retarded at the Ladd
Center that was being operated by respondent. She twice resigned voluntarily with an unblemished
record. Even respondent admitted that her performance met the Centers legitimate expectations. In
1988, Cook re-applied for a similar position. At that time, "she stood 52" tall and weighed over 320
pounds." Respondent claimed that the morbid obesity of plaintiff compromised her ability to evacuate
patients in case of emergency and it also put her at greater risk of serious diseases.

Cook contended that the action of respondent amounted to discrimination on the basis of a handicap.
53
This was in direct violation of Section 504(a) of the Rehabilitation Act of 1973, which incorporates the
remedies contained in Title VI of the Civil Rights Act of 1964. Respondent claimed, however, that morbid
obesity could never constitute a handicap within the purview of the Rehabilitation Act. Among others,
obesity is a mutable condition, thus plaintiff could simply lose weight and rid herself of concomitant
disability.

The appellate Court disagreed and held that morbid obesity is a disability under the Rehabilitation Act and
that respondent discriminated against Cook based on "perceived" disability. The evidence included expert
testimony that morbid obesity is a physiological disorder. It involves a dysfunction of both the metabolic
system and the neurological appetite suppressing signal system, which is capable of causing adverse
effects within the musculoskeletal, respiratory, and cardiovascular systems. Notably, the Court stated that
"mutability is relevant only in determining the substantiality of the limitation flowing from a given
impairment," thus "mutability only precludes those conditions that an individual can easily and quickly
reverse by behavioral alteration."

Unlike Cook, however, petitioner is not morbidly obese. In the words of the District Court for the District of
Rhode Island, Cook was sometime before 1978 "at least one hundred pounds more than what is
considered appropriate of her height." According to the Circuit Judge, Cook weighed "over 320 pounds" in
1988. Clearly, that is not the case here. At his heaviest, petitioner was only less than 50 pounds over his
ideal weight.

In fine, We hold that the obesity of petitioner, when placed in the context of his work as flight attendant,
becomes an analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the
service. His obesity may not be unintended, but is nonetheless voluntary. As the CA correctly puts it,
"[v]oluntariness basically means that the just cause is solely attributable to the employee without any
external force influencing or controlling his actions. This element runs through all just causes under Article
282, whether they be in the nature of a wrongful action or omission. Gross and habitual neglect, a
recognized just cause, is considered voluntary although it lacks the element of intent found in Article
 54
282(a), (c), and (d)."

II. The dismissal of petitioner can be predicated on the bona fide occupational qualification defense.

Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin
unless the employer can show that sex, religion, or national origin is an actual qualification for performing
55
the job. The qualification is called a bona fide occupational qualification (BFOQ). In the United States,
there are a few federal and many state job discrimination laws that contain an exception allowing an
employer to engage in an otherwise unlawful form of prohibited discrimination when the action is based
56
on a BFOQ necessary to the normal operation of a business or enterprise.

Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute providing for
57 58
it. Further, there is no existing BFOQ statute that could justify his dismissal.

Both arguments must fail.

59 60 61
First, the Constitution, the Labor Code, and RA No. 7277 or the Magna Carta for Disabled
62
Persons contain provisions similar to BFOQ.

Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia
63
Government and Service Employees Union (BCGSEU), the Supreme Court of Canada adopted the
so-called "Meiorin Test" in determining whether an employment policy is justified. Under this test, (1) the
employer must show that it adopted the standard for a purpose rationally connected to the performance of
64 65
the job; (2) the employer must establish that the standard is reasonably necessary to the
accomplishment of that work-related purpose; and (3) the employer must establish that the standard is
reasonably necessary in order to accomplish the legitimate work-related purpose. Similarly, in Star Paper
66
Corporation v. Simbol, this Court held that in order to justify a BFOQ, the employer must prove that (1)
the employment qualification is reasonably related to the essential operation of the job involved; and (2)
that there is factual basis for believing that all or substantially all persons meeting the qualification would
67
be unable to properly perform the duties of the job.

68
In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ.
BFOQ is valid "provided it reflects an inherent quality reasonably necessary for satisfactory job
69
performance."

70
In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines, Inc., the Court did not
hesitate to pass upon the validity of a company policy which prohibits its employees from marrying
employees of a rival company. It was held that the company policy is reasonable considering that its
purpose is the protection of the interests of the company against possible competitor infiltration on its
trade secrets and procedures.
Verily, there is no merit to the argument that BFOQ cannot be applied if it has no supporting statute. Too,
71 72 73
the Labor Arbiter, NLRC, and CA are one in holding that the weight standards of PAL are
reasonable. A common carrier, from the nature of its business and for reasons of public policy, is bound
74
to observe extraordinary diligence for the safety of the passengers it transports. It is bound to carry its
passengers safely as far as human care and foresight can provide, using the utmost diligence of very
75
cautious persons, with due regard for all the circumstances.

The law leaves no room for mistake or oversight on the part of a common carrier. Thus, it is only logical to
hold that the weight standards of PAL show its effort to comply with the exacting obligations imposed
upon it by law by virtue of being a common carrier.

The business of PAL is air transportation. As such, it has committed itself to safely transport its
passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the cabin
flight deck crew who are on board the aircraft. The weight standards of PAL should be viewed as
imposing strict norms of discipline upon its employees.

In other words, the primary objective of PAL in the imposition of the weight standards for cabin crew is
flight safety. It cannot be gainsaid that cabin attendants must maintain agility at all times in order to
inspire passenger confidence on their ability to care for the passengers when something goes wrong. It is
not farfetched to say that airline companies, just like all common carriers, thrive due to public confidence
on their safety records. People, especially the riding public, expect no less than that airline companies
transport their passengers to their respective destinations safely and soundly. A lesser performance is
unacceptable.

The task of a cabin crew or flight attendant is not limited to serving meals or attending to the whims and
caprices of the passengers. The most important activity of the cabin crew is to care for the safety of
passengers and the evacuation of the aircraft when an emergency occurs. Passenger safety goes to the
core of the job of a cabin attendant. Truly, airlines need cabin attendants who have the necessary
strength to open emergency doors, the agility to attend to passengers in cramped working conditions, and
the stamina to withstand grueling flight schedules.

On board an aircraft, the body weight and size of a cabin attendant are important factors to consider in
case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors. Thus, the
arguments of respondent that "[w]hether the airlines flight attendants are overweight or not has no direct
relation to its mission of transporting passengers to their destination"; and that the weight standards "has
nothing to do with airworthiness of respondents airlines," must fail.

76
The rationale in Western Air Lines v. Criswell relied upon by petitioner cannot apply to his case. What
was involved there were two (2) airline pilots who were denied reassignment as flight engineers upon
reaching the age of 60, and a flight engineer who was forced to retire at age 60. They sued the airline
company, alleging that the age-60 retirement for flight engineers violated the Age Discrimination in
Employment Act of 1967. Age-based BFOQ and being overweight are not the same. The case of
overweight cabin attendants is another matter. Given the cramped cabin space and narrow aisles and
emergency exit doors of the airplane, any overweight cabin attendant would certainly have difficulty
navigating the cramped cabin area.

In short, there is no need to individually evaluate their ability to perform their task. That an obese cabin
attendant occupies more space than a slim one is an unquestionable fact which courts can judicially
77
recognize without introduction of evidence. It would also be absurd to require airline companies to
reconfigure the aircraft in order to widen the aisles and exit doors just to accommodate overweight cabin
attendants like petitioner.

The biggest problem with an overweight cabin attendant is the possibility of impeding passengers from
evacuating the aircraft, should the occasion call for it. The job of a cabin attendant during emergencies is
to speedily get the passengers out of the aircraft safely. Being overweight necessarily impedes mobility.
Indeed, in an emergency situation, seconds are what cabin attendants are dealing with, not minutes.
Three lost seconds can translate into three lost lives. Evacuation might slow down just because a wide-
bodied cabin attendant is blocking the narrow aisles. These possibilities are not remote.

Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were made known to
78
him prior to his employment. He is presumed to know the weight limit that he must maintain at all times.
In fact, never did he question the authority of PAL when he was repeatedly asked to trim down his weight.
Bona fides exigit ut quod convenit fiat. Good faith demands that what is agreed upon shall be done. Kung
ang tao ay tapat kanyang tutuparin ang napagkasunduan.

Too, the weight standards of PAL provide for separate weight limitations based on height and body frame
for both male and female cabin attendants. A progressive discipline is imposed to allow non-compliant
cabin attendants sufficient opportunity to meet the weight standards. Thus, the clear-cut rules obviate any
possibility for the commission of abuse or arbitrary action on the part of PAL.

III. Petitioner failed to substantiate his claim that he was discriminated against by PAL.

Petitioner next claims that PAL is using passenger safety as a convenient excuse to discriminate against
79
him. We are constrained, however, to hold otherwise. We agree with the CA that "[t]he element of
discrimination came into play in this case as a secondary position for the private respondent in order to
escape the consequence of dismissal that being overweight entailed. It is a confession-and-avoidance
position that impliedly admitted the cause of dismissal, including the reasonableness of the applicable
80
standard and the private respondents failure to comply." It is a basic rule in evidence that each party
81
must prove his affirmative allegation.

Since the burden of evidence lies with the party who asserts an affirmative allegation, petitioner has to
prove his allegation with particularity. There is nothing on the records which could support the finding of
discriminatory treatment. Petitioner cannot establish discrimination by simply naming the supposed cabin
attendants who are allegedly similarly situated with him. Substantial proof must be shown as to how and
why they are similarly situated and the differential treatment petitioner got from PAL despite the similarity
of his situation with other employees.

Indeed, except for pointing out the names of the supposed overweight cabin attendants, petitioner
miserably failed to indicate their respective ideal weights; weights over their ideal weights; the periods
they were allowed to fly despite their being overweight; the particular flights assigned to them; the
discriminating treatment they got from PAL; and other relevant data that could have adequately
established a case of discriminatory treatment by PAL. In the words of the CA, "PAL really had no
82
substantial case of discrimination to meet."

We are not unmindful that findings of facts of administrative agencies, like the Labor Arbiter and the
83
NLRC, are accorded respect, even finality. The reason is simple: administrative agencies are experts in
84
matters within their specific and specialized jurisdiction. But the principle is not a hard and fast rule. It
only applies if the findings of facts are duly supported by substantial evidence. If it can be shown that
administrative bodies grossly misappreciated evidence of such nature so as to compel a conclusion to the
contrary, their findings of facts must necessarily be reversed. Factual findings of administrative agencies
85
do not have infallibility and must be set aside when they fail the test of arbitrariness.

Here, the Labor Arbiter and the NLRC inexplicably misappreciated evidence. We thus annul their findings.

To make his claim more believable, petitioner invokes the equal protection clause guaranty86 of the
Constitution. However, in the absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked.87 Put differently, the Bill of Rights is not meant to be invoked against
88
acts of private individuals. Indeed, the United States Supreme Court, in interpreting the Fourteenth
89
Amendment, which is the source of our equal protection guarantee, is consistent in saying that the
90
equal protection erects no shield against private conduct, however discriminatory or wrongful. Private
91
actions, no matter how egregious, cannot violate the equal protection guarantee.

IV. The claims of petitioner for reinstatement and wages are moot.

As his last contention, petitioner avers that his claims for reinstatement and wages have not been
mooted. He is entitled to reinstatement and his full backwages, "from the time he was illegally dismissed"
92
up to the time that the NLRC was reversed by the CA.

At this point, Article 223 of the Labor Code finds relevance:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as
the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The
employee shall either be admitted back to work under the same terms and conditions prevailing prior to
his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting
of a bond by the employer shall not stay the execution for reinstatement provided herein.

The law is very clear. Although an award or order of reinstatement is self-executory and does not require
a writ of execution,93 the option to exercise actual reinstatement or payroll reinstatement belongs to the
employer. It does not belong to the employee, to the labor tribunals, or even to the courts.

Contrary to the allegation of petitioner that PAL "did everything under the sun" to frustrate his "immediate
return to his previous position,"94 there is evidence that PAL opted to physically reinstate him to a
95
substantially equivalent position in accordance with the order of the Labor Arbiter. In fact, petitioner
duly received the return to work notice on February 23, 2001, as shown by his signature.96

97
Petitioner cannot take refuge in the pronouncements of the Court in a case that "[t]he unjustified refusal
of the employer to reinstate the dismissed employee entitles him to payment of his salaries effective from
98
the time the employer failed to reinstate him despite the issuance of a writ of execution" and ""even if
the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the
employer to reinstate and pay the wages of the employee during the period of appeal until reversal by the
99
higher court." He failed to prove that he complied with the return to work order of PAL. Neither does it
appear on record that he actually rendered services for PAL from the moment he was dismissed, in order
to insist on the payment of his full backwages.

In insisting that he be reinstated to his actual position despite being overweight, petitioner in effect wants
to render the issues in the present case moot. He asks PAL to comply with the impossible. Time and
100
again, the Court ruled that the law does not exact compliance with the impossible.

V. Petitioner is entitled to separation pay.

Be that as it may, all is not lost for petitioner.

Normally, a legally dismissed employee is not entitled to separation pay. This may be deduced from the
language of Article 279 of the Labor Code that "[a]n employee who is unjustly dismissed from work shall
be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement." Luckily for petitioner, this
is not an ironclad rule.

101
Exceptionally, separation pay is granted to a legally dismissed employee as an act "social justice," or
based on "equity." 102 In both instances, it is required that the dismissal (1) was not for serious
103
misconduct; and (2) does not reflect on the moral character of the employee.

Here, We grant petitioner separation pay equivalent to one-half (1/2) months pay for every year of
 104 105
service. It should include regular allowances which he might have been receiving. We are not
blind to the fact that he was not dismissed for any serious misconduct or to any act which would reflect on
his moral character. We also recognize that his employment with PAL lasted for more or less a decade.

WHEREFORE, the appealed Decision of the Court of Appeals is AFFIRMED but MODIFIED in that
petitioner Armando G. Yrasuegui is entitled to separation pay in an amount equivalent to one-half (1/2)
months pay for every year of service, which should include his regular allowances.

SO ORDERED.

DIGEST:

YRASUEGI vs PAL

ARMANDO G. YRASUEGUI, petitioners, vs.

PHILIPPINE AIRLINES, INC., respondents.
G.R. No. 168081, October 17, 2008 (569 SCRA 467)

VERSION 1:
FACTS: THIS case portrays the peculiar story of an international flight steward who was dismissed
because of his failure to adhere to the weight standards of the airline company.
The proper weight for a man of his height and body structure is from 147 to 166 pounds, the ideal weight
being 166 pounds, as mandated by the Cabin and Crew Administration Manual of PAL.
In 1984, the weight problem started, which prompted PAL to send him to an extended vacation until
November 1985. He was allowed to return to work once he lost all the excess weight. But the problem
recurred. He again went on leave without pay from October 17, 1988 to February 1989.
Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained
overweight. On January 3, 1990, he was informed of the PAL decision for him to remain grounded until
such time that he satisfactorily complies with the weight standards. Again, he was directed to report every
two weeks for weight checks, which he failed to comply with.
On April 17, 1990, petitioner was formally warned that a repeated refusal to report for weight check would
be dealt with accordingly. He was given another set of weight check dates, which he did not report to.
On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for violation of
company standards on weight requirements. Petitioner insists that he is being discriminated as those
similarly situated were not treated the same.
On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his ideal
weight, and considering the utmost leniency extended to him which spanned a period covering a total
of almost five (5) years, his services were considered terminated effective immediately.
LABOR ARBITER: held that the weight standards of PAL are reasonable in view of the nature of the job
of petitioner. However, the weight standards need not be complied with under pain of dismissal since his
weight did not hamper the performance of his duties.
NLRC affirmed.
CA: the weight standards of PAL are reasonable. Thus, petitioner was legally dismissed because he
repeatedly failed to meet the prescribed weight standards. It is obvious that the issue of discrimination
was only invoked by petitioner for purposes of escaping the result of his dismissal for being overweight.
ISSUE: WON he was validly dismissed.
HELD: YES
A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a
continuing qualification of an employee in order to keep the job. The dismissal of the employee would
thus fall under Article 282(e) of the Labor Code.
In the case at bar, the evidence on record militates against petitioners claims that obesity is a disease.
That he was able to reduce his weight from 1984 to 1992 clearly shows that it is possible for him to lose
weight given the proper attitude, determination, and self-discipline. Indeed, during the clarificatory hearing
on December 8, 1992, petitioner himself claimed that [t]he issue is could I bring my weight down to ideal
weight which is 172, then the answer is yes. I can do it now.
Petitioner has only himself to blame. He could have easily availed the assistance of the company
physician, per the advice of PAL.
In fine, We hold that the obesity of petitioner, when placed in the context of his work as flight attendant,
becomes an analogous cause under Article 282(e) of the Labor Code that justifies his dismissal from the
service. His obesity may not be unintended, but is nonetheless voluntary. As the CA correctly puts it,
[v]oluntariness basically means that the just cause is solely attributable to the employee without any
external force influencing or controlling his actions. This element runs through all just causes under Article
282, whether they be in the nature of a wrongful action or omission. Gross and habitual neglect, a
recognized just cause, is considered voluntary although it lacks the element of intent found in Article
282(a), (c), and (d).
NOTES:
The dismissal of petitioner can be predicated on the bona fide occupational qualification defense.
Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin
unless the employer can show that sex, religion, or national origin is an actual qualification for performing
the job. The qualification is called a bona fide occupational qualification (BFOQ). In short, the test of
reasonableness of the company policy is used because it is parallel to BFOQ. BFOQ is valid provided it
reflects an inherent quality reasonably necessary for satisfactory job performance.
The business of PAL is air transportation. As such, it has committed itself to safely transport its
passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the cabin
flight deck crew who are on board the aircraft. The weight standards of PAL should be viewed as
imposing strict norms of discipline upon its employees.
The primary objective of PAL in the imposition of the weight standards for cabin crew is flight safety.
Separation pay, however, should be awarded in favor of the employee as an act of social justice or based
on equity. This is so because his dismissal is not for serious misconduct. Neither is it reflective of his
moral character.

VERSION 2:
Facts: Complainant was an international flight steward who was dismissed because of his failure to
adhere to the weight standards of the company.
Issue: Was the dismissal valid?
Held: SC upheld the legality of dismissal. Separation pay, however, should be awarded in favor of the
employee as an act of social justice or based on equity. This is so because his dismissal is not for serious
misconduct. Neither is it reflective of his moral character.
The obesity of petitioner, when placed in the context of his work as flight attendant, becomes an
analogous cause under Article 282(e) of the Labor Code. His obesity may not be unintended, but is
nonetheless voluntary. [V]oluntariness basically means that the just cause is solely attributable to the
employee without any external force influencing or controlling his actions. This element runs through all
just causes under Article 282, whether they be in the nature of a wrongful action or omission. Gross and
habitual neglect, a recognized just cause, is considered voluntary although it lacks the element of intent
found in Article 282(a), (c), and (d).
Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin
unless the employer can show that sex, religion, or national origin is an actual qualification for performing
the job.

Bona fide occupational qualification (BFOQ)

The Constitution, the Labor Code, and RA No. 7277 or the Magna Carta for Disabled Persons contain
provisions similar to BFOQ.

Argument that BFOQ is a statutory defense must fail

Meiorin Test (US jurisprudence) in determining whether an employment policy is justified:
(1) the employer must show that it adopted the standard for a purpose rationally connected to the
performance of the job;
2) the employer must establish that the standard is reasonably necessary to the accomplishment of that
work-related purpose; and
(3) the employer must establish that the standard is reasonably necessary in order to accomplish the
legitimate work-related purpose.

In Star Paper Corporation v. Simbol, this Court held that in order to justify a BFOQ, the employer must
prove:
(1) the employment qualification is reasonably related to the essential operation of the job involved; and
(2) that there is factual basis for believing that all or substantially all persons meeting the qualification
would be unable to properly perform the duties of the job.
In short, the test of reasonableness of the company policy is used because it is parallel to BFOQ. BFOQ
is valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance.
The weight standards of PAL are reasonable. A common carrier, from the nature of its business and for
reasons of public policy, is bound to observe extraordinary diligence for the safety of the passengers it
transports.
The primary objective of PAL in the imposition of the weight standards for cabin crew is flight safety. It
cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger
confidence on their ability to care for the passengers when something goes wrong.
Exceptionally, separation pay is granted to a legally dismissed employee as an act social justice, or
based on equity. Provided the dismissal:
Entitled to separation pay, even if terminated for just cause
(1) was not for serious misconduct; and
(2) does not reflect on the moral character of the employee.
Thus, he was granted separation pay equivalent to one-half (1/2) months pay for every year of service.
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