Republic of the Philippines
Even supposing that it is
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58639 August 12, 1987
CEBU ROYAL PLANT (SAN MIGUEL CORPORATION), petitioner,
vs.
THE HONORABLE DEPUTY MINISTER OF LABOR and RAMON PILONES, respondents.
CRUZ, J.:
The private respondent was removed by the petitioner and complained to the Ministry
of Labor. His complaint was dismissed by the regional director, who was, however,
reversed by the public respondent. Required to reinstate the separated employee and
pay him back wages, the petitioner has come to us, faulting the Deputy Minister with
grave abuse of discretion. We have issued in the meantime a temporary restraining
order. 1
The public respondent held that Ramon Pilones, the private respondent, was already a
permanent employee at the time of his dismissal and so was entitled to security of
tenure. The alleged ground for his removal, to wit, "pulmonary tuberculosis minimal,"
was not certified as incurable within six months as to justify his
separation. 2 Additionally, the private respondent insists that the petitioner should have
first obtained a clearance, as required by the regulations then in force, for the
termination of his employment.
The petitioner for its part claims that the private respondent was still on probation at
the time of his dismissal and so had no security of tenure. His dismissal was not only in
conformity with company policy but also necessary for the protection of the public
health, as he was handling ingredients in the processing of soft drinks which were being
sold to the public. It is also argued that the findings of the regional director, who had
direct access to the facts, should not have been disturbed on appeal. For these same
reasons, it contends, the employee's reinstatement as ordered by the public respondent
should not be allowed.
The original findings were contained in a one-page order 3 reciting simply that
"complainant was employed on a probationary period of employment for six (6) months.
After said period, he underwent medical examination for qualification as regular
employee but the results showed that he is suffering from PTB minimal. Consequently,
he was informed of the termination of his employment by respondent." The order then
concluded that the termination was "justified." That was all.
As there is no mention of the basis of the above order, we may assume it was the
temporary payroll authority 4submitted by the petitioner showing that the private
respondent was employed on probation on February 16, 1978.
not self- serving, we find nevertheless that it is self-defeating. The six-month period of
probation started from the said date of appointment and so ended on August 17, 1978,
but it is not shown that the private respondent's employment also ended then; on the
contrary, he continued working as usual. Under Article 282 of the Labor Code, "an
employee who is allowed to work after a probationary period shall be considered a
regular employee." Hence, Pilones was already on permanent status when he was
dismissed on August 21, 1978, or four days after he ceased to be a probationer.
The petitioner claims it could not have dismissed the private respondent earlier because
the x-ray examination was made only on August 17, 1978, and the results were not
immediately available. That excuse is untenable. We note that when the petitioner had
all of six months during which to conduct such examination, it chose to wait until exactly
the last day of the probation period. In the light of such delay, its protestations now that
reinstatement of Pilones would prejudice public health cannot but sound hollow and
hypocritical. By its own implied admission, the petitioner had exposed its customers to
the employee's disease because of its failure to examine him before entrusting him with
the functions of a "syrup man." Its belated concern for the consuming public is hardly
persuasive, if not clearly insincere and self-righteous.
There is proof in fact that the private respondent was first hired not on February 16,
1978, but earlier in 1977. This is the 1977 withholding tax statement 5 issued for him by
the petitioner itself which it does not and cannot deny. The petitioner stresses that this
is the only evidence of the private respondent's earlier service and notes that he has not
presented any co-worker to substantiate his claim. This is perfectly understandable.
Given the natural reluctance of many workers to antagonize their employers, we need
not wonder why none of them testified against the petitioner.
We are satisfied that whether his employment began on February 16, 1978, or even
earlier as he claims, the private respondent was already a regular employee when he
was dismissed on August 21, 1978. As such, he could validly claim the security of tenure
guaranteed to him by the Constitution and the Labor Code.
The applicable rule on the ground for dismissal invoked against him is Section 8, Rule I,
Book VI, of the Rules and Regulations Implementing the Labor Code reading as follows:
Sec. 8. Disease as a ground for dismissal. — Where the employee suffers
from a disease and his continued employment is prohibited by law or
prejudicial to his health or to the health of his co-employees, the
employer shall not terminate his employment unless there is a
certification by a competent public health authority that the disease is
of such nature or at such a stage that it cannot be cured within a period
of six (6) months even with proper medical treatment. If the disease or
ailment can be cured within the period, the employer shall not
 terminate the employee but shall ask the employee to take a leave. The SO ORDERED.
employer shall reinstate such employee to his former position Teehankee (Chairman), C.J., Narvasa, Paras and Gancayco, JJ., concur.
immediately upon the restoration of his normal health.
The record does not contain the certification required by the above rule. The medical
certificate offered by the petitioner came from its own physician, who was not a
"competent public health authority," and merely stated the employee's disease, without
more. We may surmise that if the required certification was not presented, it was
because the disease was not of such a nature or seriousness that it could not be cured
within a period of six months even with proper medical treatment. If so, dismissal was
unquestionably a severe and unlawful sanction.
It is also worth noting that the petitioner's application for clearance to terminate the
employment of the private respondent was filed with the Ministry of Labor only on
August 28, 1978, or seven days after his dismissal. 6 As the NLRC has repeatedly and
correctly said, the prior clearance rule (which was in force at that time) was not a
"trivial technicality." It required "not just the mere filing of a petition or the mere
attempt to procure a clearance" but that "the said clearance be obtained prior to the
operative act of termination. 7
We agree that there was here an attempt to circumvent the law by separating the
employee after five months' service to prevent him from becoming a regular employee,
and then rehiring him on probation, again without security of tenure. We cannot permit
this subterfuge if we are to be true to the spirit and mandate of social justice. On the
other hand, we have also the health of the public and of the dismissed employee himself
to consider. Hence, although we must rule in favor of his reinstatement, this must be
conditioned on his fitness to resume his work, as certified by competent authority.
We take this opportunity to reaffirm our concern for the lowly worker who, often at the
mercy of his employers, must look up to the law for his protection. Fittingly, that law
regards him with tenderness and even favor and always with faith and hope in his
capacity to help in shaping the nation's future. It is error to take him for granted. He
deserves our abiding respect. How society treats him will determine whether the knife
in his hands shall be a caring tool for beauty and progress or an angry weapon of
defiance and revenge. The choice is obvious, of course. If we cherish him as we should,
we must resolve to lighten "the weight of centuries" of exploitation and disdain that
bends his back but does not bow his head.
WHEREFORE, the petition is DISMISSED and the temporary restraining order of
November 18, 1981, is LIFTED. The Order of the public respondent dated July 14, 1981,
is AFFIRMED, but with the modification that the backwages shall be limited to three
years only and the private respondent shall be reinstated only upon certification by a
competent public health authority that he is fit to return to work. Costs against the
petitioner.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-48926 December 14, 1987
MANUEL SOSITO, petitioner,
vs.
AGUINALDO DEVELOPMENT CORPORATION, respondent.
CRUZ, J.:
We gave due course to this petition and required the parties to file simultaneous
memoranda on the sole question of whether or not the petitioner is entitled to
separation pay under the retrenchment program of the private respondent.
The facts are as follows:
Petitioner Manuel Sosito was employed in 1964 by the private respondent, a logging
company, and was in charge of logging importation, with a monthly salary of
P675.00, 1 when he went on indefinite leave with the consent of the company on
January 16, 1976. 2 On July 20, 1976, the private respondent, through its president,
announced a retrenchment program and offered separation pay to employees in the
active service as of June 30, 1976, who would tender their resignations not later than
July 31, 1976. The petitioner decided to accept this offer and so submitted his
resignation on July 29, 1976, "to avail himself of the gratuity benefits"
promised. 3 However, his resignation was not acted upon and he was never given the
separation pay he expected. The petitioner complained to the Department of Labor,
where he was sustained by the labor arbiter. 4 The company was ordered to pay Sosito
the sum of P 4,387.50, representing his salary for six and a half months. On appeal to the
National Labor Relations Commission, this decision was reversed and it was held that
the petitioner was not covered by the retrenchment program. 5 The petitioner then came
to us.
For a better understanding of this case, the memorandum of the private respondent on
its retrenchment program is reproduced in full as follows:
Memorandum To: ALL EMPLOYEES
Re: RETRENCHMENT PROGRAM
As you are all aware, the operations of wood-based industries in the Philippines for the
last two (2) years were adversely affected by the worldwide decline in the demand for
and prices of logs and wood products. Our company was no exception to this general
decline in the market, and has suffered tremendous losses. In 1975 alone, such losses
amounted to nearly P20,000,000.00.
The company has made a general review of its operations and has come
to the unhappy decision of the need to make adjustments in its
manpower strength if it is to survive. This is indeed an unfortunate and
painful decision to make, but it leaves the company no alternative but
to reduce its tremendous and excessive overhead expense in order to
prevent an ultimate closure.
Although the law allows the Company, in a situation such as this, to
drastically reduce it manpower strength without any obligation to pay
separation benefits, we recognize the need to provide our employees
some financial assistance while they are looking for other jobs.
The Company therefore is adopting a retrenchment program whereby
employees who are in the active service as of June 30, 1976 will be paid
separation benefits in an amount equivalent to the employee's one-half
(1/2) month's basic salary multiplied by his/her years of service with
the Company. Employees interested in availing of the separation
benefits offered by the Company must manifest such intention by
submitting written letters of resignation to the Management not later
than July 31, 1976. Those whose resignations are accepted shall be
informed accordingly and shall be paid their separation benefits.
After July 31, 1976, this offer of payment of separation benefits will no
longer be available. Thereafter, the Company shall apply for a clearance
to terminate the services of such number of employees as may be
necessary in order to reduce the manpower strength to such desired
level as to prevent further losses.
N.B.
For additional information
and/or resignation forms,
please see Mr. Vic Maceda
or Atty. Ben Aritao. 6
It is clear from the memorandum that the offer of separation pay was extended only to
those who were in the active service of the company as of June 30, 1976. It is equally
clear that the petitioner was not eligible for the promised gratuity as he was not actually
working with the company as of the said date. Being on indefinite leave, he was not in
the active service of the private respondent although, if one were to be technical, he was
still in its employ. Even so, during the period of indefinite leave, he was not entitled to
receive any salary or to enjoy any other benefits available to those in the active service.
It seems to us that the petitioner wants to enjoy the best of two worlds at the expense of
the private respondent. He has insulated himself from the insecurities of the floundering
firm but at the same time would demand the benefits it offers. Being on indefinite leave
from the company, he could seek and try other employment and remain there if he
should find it acceptable; but if not, he could go back to his former work and argue that
he still had the right to return as he was only on leave.
There is no claim that the petitioner was temporarily laid off or forced to go on leave; on
the contrary, the record shows that he voluntarily sought the indefinite leave which the
private respondent granted. It is strange that the company should agree to such an
open-ended arrangement, which is obviously one-sided. The company would not be free
to replace the petitioner but the petitioner would have a right to resume his work as and
when he saw fit.
We note that under the law then in force the private respondent could have validly
reduced its work force because of its financial reverses without the obligation to grant
separation pay. This was permitted under the original Article 272(a), of the Labor
Code, 7 which was in force at the time. To its credit, however, the company voluntarily
offered gratuities to those who would agree to be phased out pursuant to the terms and
conditions of its retrenchment program, in recognition of their loyalty and to tide them
over their own financial difficulties. The Court feels that such compassionate measure
deserves commendation and support but at the same time rules that it should be
available only to those who are qualified therefore. We hold that the petitioner is not
one of them.
While the Constitution is committed to the policy of social justice and the protection of
the working class, it should not be supposed that every labor dispute will be
automatically decided in favor of labor. Management also has its own rights which, as
such, are entitled to respect and enforcement in the interest of simple fair play. Out of its
concern for those with less privileges in life, this Court has inclined more often than not
toward the worker and upheld his cause in his conflicts with the employer. Such
favoritism, however, has not blinded us to the rule that justice is in every case for the
deserving, to be dispensed in the light of the established facts and the applicable law and
doctrine.
WHEREFORE, the petition is DISMISSED and the challenged decision AFFIRMED, with
costs against the petitioner.
SO ORDERED.
Teehankee, C.J., Narvasa, Paras and Gancayco, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 83239 March 8, 1989
PHILIPPINE JAPAN ACTIVE CARBON CORPORATION and TOKUICHI
SATOFUKA, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and OLGA S. QUIÑANOLA respondents.
Dominguez & Paderna Law Offices Co. for petitioners. The Solicitor General for public
respondent. B.E. Militar and Associate Law Offices for private respondent.
GRIÑO-AQUINO, J.:
This is a petition for review of the decision dated November 27, 1987 in NLRC Case No.
1966-LR-XI-86, entitled "Olga S. Quiñanola Complainant-Appellee vs. Philippine Japan
Active Carbon Corporation and/or Tokuichi Satofuka Respondents-Appellants,"
affirming the decision dated June 5, 1987 of the Labor Arbiter finding that the private
respondent Olga S. Quiñanola was illegally dismissed and ordering the appellants to
reinstate her with backwages and damages.
The private respondent, who had been employed in petitioner corporation since January
19, 1982, as Assistant Secretary/Export Coordinator, was promoted on May 20, 1983 to
the position of Executive Secretary to the Executive Vice President and General Manager.
On May 31, 1986, for no apparent reason at all and without prior notice to her, she was
transferred to the Production Department as Production Secretary, swapping positions
with Ester Tamayo. Although the transfer did not amount to a demotion because her
salary and workload remained the same, she believed otherwise so she rejected the
assignment and filed a complaint for illegal dismissal. The Labor Arbiter found, on the
basis of the evidence of both parties, that the transfer would amount to constructive
dismiss hence, her refusal to obey the transfer order was justified (pp. 76-77, Rollo). The
Labor Arbiter further observed that:
There was something perverse in the way she was dismissed from her
work. She was dismissed for causes that are unjustified, if not entirely
non-existent, and foisted on her by respondents' illegal act the
motivation of which reeks with bad faith. Accordingly, they should be
assessed and required to pay complainant the sum of P25,000 as
damages and P5,000 as attorney's fee. (p. 77, Rollo.)
The dispositive portion of his decision reads as follows:
WHEREFORE, judgment is hereby rendered declaring complainant Olga
Quiñanola's dismissal illegal and for respondents to reinstate her to her
former position with backwages equivalent to one year in the amount
of P33,684 (P2,807 x 12 months) only, without loss of seniority rights
and other benefits also equivalent to one year or until the finality of this
Decision, whichever is higher.
Likewise, respondents are hereby assessed and ordered to pay
complainant the sum of P25,000.00 as damages plus P5,000 as
attomey's fee.
Total Awards: P63,684 only, exclusive of other benefits herein granted
but not yet computed. (pp. 77-78, Rollo.)
Upon appeal to the NLRC, the Commission approved the Labor Arbiter's decision but
reduced to P10,000 the award of moral damages and the attorney's fees to 10% of the
judgment (pp. 207-208, Rollo). The employer filed a petition for review of that decision
in this Court alleging that:
1. The decisions of the Labor Arbiter and of the NLRC are tainted with grave abuse of
discretion in finding that the private respondent was constructively and illegally
dismissed as a result of her transfer or assignment to the Office of the Production
Manager even if she would have received the same salary rank, rights and priveleges;
2. In ordering her reinstatement with full backwages and without loss of seniority rights
and other benefits;
3. In awarding to the private respondent moral damages of P10,000 and attorney's fees
equivalent to 10% of the judgment; and
4. In not declaring that private respondent forfeited all her benefits for having
abandoned her job on June 2 to 3, 1986 and for insubordination.
In her comment to the petition, the private respondent argued that she was dismissed
without due process because she was not given the opportunity to be heard concerning
the causes of her transfer. Upon a careful consideration of the petition and the
documents annexed thereto as well as private respondent's comment, We find the
petition to be meritorious.
A constructive discharge is defined as: "A quitting because continued employment is
rendered impossible, unreasonable or unlikely; as, an offer involving a demotion in rank
and a diminution in pay." (Moreno's Philippine Law Dictionary, 2nd Ed., p. 129, citing the
case of Alia vs. Salani Una Transportation Co., 39527-R, January 29, 1971.)
In this case, the private respondent's assignment as Production Secretary of the
Production Department was not unreasonable as it did not involve a demotion in rank
(her rank was still that of a department secretary) nor a change in her place of work (the
office is in the same building), nor a diminution in pay, benefits, and privileges. It did not
constitute a constructive dismissal.
It is the employer's prerogative, based on its assessment and perception of its
employees' qualifications, aptitudes, and competence, to move them around in the
various areas of its business operations in order to "ascertain where they will function
with maximum benefit to the company. An employee's right to security of tenure does
not give him such a vested right in his position as would deprive the company of its
prerogative to change his assignment or transfer him where he will be most useful.
When his transfer is not unreasonable, nor inconvenient, nor prejudicial to him, and it
does not involve a demotion in rank or a diminution of his salaries, benefits, and other
privileges, the employee may not complain that it amounts to a constructive dismissal.
On the other hand, we reject the petitioner's contention that the private respondent's
absence from work on June 2 to June 3, 1986 constituted an abandonment of her job in
the company resulting in the forfeiture of the benefits due her. While she was guilty of
insubordination for having refused to move out of her position as Executive Secretary to
the Executive Vice-President and General Manager of the company, dismissal from the
service would be a draconian punishment for it, as her complaint for illegal dismissal
was filed in good faith.
WHEREFORE, the decision of the NLRC insofar as it orders the petitioner to reinstate the
private respondent is affirmed, but she shall be reinstated to her position as Production
Secretary of the Production Department of petitioner's corporation without loss of
seniority rights and other privileges. The awards of backwages, moral damages and
attorney's fees to the private respondent are hereby set aside. No pronouncement as to
costs.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 76959 October 12, 1987
ABBOTT LABORATORIES (PHILIPPINES), INC., and JAIME C. VICTA petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISISON and ALBERT BOBADILLA respondents.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari of the decision of respondent National Labor
Relations Commission (NLRC) which set aside the Labor Arbiter's decision dismissing
the complaint and instead entered a new decision ordering the complainant's
reinstatement with full backwages from the date of his termination until his actual
reinstatement.
The antecedent facts as found by the labor Arbiter and reiterated in the NLRC decision
are undisputed:
Complainant Bobadilla started his employment with respondent
company sometime in May 1982. After undergoing training, in
September, 1982, competent was designated professional medical
representative (PMR) and was assigned to cover the sales territory
comprising of Sta. Cruz, Binondo and a part of Quiapo and Divisoria, of
the Metro Manila district. In connection with the respondent company's
marketing and sales operations, it has been its policy and established
practice of undertaking employment movements and/or reassignments
from one territorial area to another as the exigencies of its operations
require and to hire only applicant salesmen, including professional
medical representatives (PMRs) who are willing to take provincial
assignments, at least insofar as male applicants were concerned.
Likewise, respondent company had made reassignments or transfers of
sales personnel which included PMRs from one territorial area of
responsibility to another on a more or less regular basis.
In complainant's application for employment with respondent
company, he agreed to the following: 1) that if employed he win accept
assignment in the provinces and/or cities anywhere in the Philippines;
2) he is willing and can move into and live in the territory assigned to
him; and (3) that should any answer or statement in his application for
employment be found false or incorrect, he will be subject to immediate
dismissal, if then employed.
On 22 July 1983, respondent Victa called competent to his office and
informed the latter that he was being transferred effective 1 August
1983 to the newly opened Cagayan territory comprising the provinces
of Cagayan, Nueva Vizcaya and Isabela. The transfer order was made
formal in a memorandum dated 29 July 1983. Among the reasons given
for complainant's selection as PMR for the Cagayan territory were: The
territory required a veteran and seasoned PMR who can operate
immediately with minimum training and supervision. Likewise, a PMR
who can immediately exploit the vast business potential of the area.
In a letter dated 1 August 1983, which was received by Abbott on 4
August 1983, competent, thru his lawyer, objected to the transfer on
the grounds that it was not only a demotion but also personal and
punitive in nature without basis legally and factually.
On 8 August 1983, Victa issued another inter-office correspondence to
competent, giving the latter up to 15 August 1983 within which to
comply with the transfer order, otherwise his would be dropped from
the payroll for having abandoned his job. When competent failed to
report to his new assignment, Abbott assigned thereat Fausto Antonio
T. Tibi another PED PMR who was priorly covering the provinces of
Nueva Ecija and Tarlac.
Meanwhile, complainant filed applications for vacation leave from 2 to
9 August 1983, and then from 10 to 13 August 1983. And on 18 August
1983, he filed the present complaint.
After due consideration of the evidence adduced by the parties, the
Arbiter below ruled for the respondent on the ground that the
complainant is guilty of gross insubordination. (pp. 17-19, Rollo; pp. 1-
3, NLRC decision)
On appeal, the respondent National Labor Relations Commission reversed the Arbiter's
decision and held that herein petitioners had no valid and justifiable reason to dismiss
the complainant. The National Labor Relations Commission ordered the latter's
reinstatement with backwages.
A motion for reconsideration subsequently filed by the petitioners was denied.
On September 8, 1986, the petitioners filed their second motion for reconsideration
which was not favorably acted upon by respondent National Labor Relations
Commission as the record of the case had already been transmitted to the labor arbiter
for the execution of its decision.
On December 16, 1986, the petitioners and the private respondent agreed before the
labor arbiter that the former would bring the case before this Court.
Hence, this present petition.
Petitioners assigned as errors the following:
... [R]espondent NLRC acted in excess of jurisdiction and/or grave
abuse of discretion in that —
a] Respondent NLRC disregarded settled law and altered the parties'
contract when it stated that private respondent's prior consent was
necessary for the validity of his transfer, rendering his consequent
dismissal for insubordination illegal.
b] Granting arguendo that prior consent of an employee is required for
the validity of his transfer to another territory, private respondent had
explicitly given such prior consent as a condition for his hiring and
continued employment by petitioner Abbott,
c] Respondent NLRC abused its discretion when it declared private
respondent's dismissal illegal despite his clear and willfull
insubordination. (pp. 7, 10 and 11, Rollo).
When asked to comment on the petition as counsel for NLRC, the Solicitor General,
assisted by Assistant Solicitor General Zoilo A. Andin and Trial Attorney Alexander Q.
Gesmundo, agreed with the petitioners' stand that the dismissal of the private
respondent from his employment was for valid reasons.
The main issue in this case is whether or not Albert Bobadilla could be validly dismissed
from his employment on the ground of insubordination for refusing to accept his new
assignment.
We are constrained to answer in the affirmative.
The hiring, firing, transfer, demotion, and promotion of employees has been traditionally
Identified as a management prerogative subject to limitations found in law, a collective
bargaining agreement, or general principles of fair play and justice. This is a function
associated with the employer's inherent right to control and manage effectively its
enterprise. Even as the law is solicitous of the welfare of employees, it must also protect
the right of an employer to exercise what are clearly management prerogatives. The free
who of management to conduct its own business affairs to achieve its purpose cannot be
denied. (See Dangan vs. National Labor Relations Commission, 127 SCRA 706).
As a general rule, the right to transfer or reassign an employee is recognized as an
employer's exclusive right and the prerogative of management.
We agree with the Labor Arbiter's conclusions that:
Settled is the rule in this regard that an employer, except when cited by
special laws, has the right to regulate, according to his own discretion
and judgment, all aspects of employment, which includes, among
others, hiring, work assignments, place and manner of work, working
regulations and transfer of employees in accordance with his
operational demands and requirements. This right flows from
ownership and from the established rule that labor law does not
authorize the substitution of judgment of the employer in the conduct
of his business, unless it is shown to be contrary to law, morals or
public policy (NLU vs. Insular-Yebana Tobacco Corp., 2 SCRA 924, 931;
and Republic Savings Bank vs. Court of Industrial Relations, 21 SCRA
226, 235).
... Abbott, in accordance with the demands and requirements of its
marketing and sales operations, adopted a policy to hire only sales
applicants who are willing to accept assignments in the provinces
anywhere in the Philippines, and to move into and live in the territory
assigned to them.
The existence and implementation of this policy are clearly discernible
from the questions appearing in the application form under the
heading:"TO BE FILLED BY SALES APPLICANTS ONLY," and the fact
that Abbott, depending upon the needs of its marketing and sales
operations, periodically made transfers or reassignment of its sales
people.
Complainant was precisely hired because he manifested at the outset as
a job applicant his willingness to follow the conditions of his
employment. In line with the policy, as practiced, Abbott, thru Jaime
Victa, issued an inter-office correspondence transferring complainant
to a newly opened sales territory-the Cagayan Region, comprising the
provinces of Cagayan, Nueva Vizcaya and Isabela. According to
respondents, complainant was selected as PMR for the region primarily
because he was a veteran and seasoned PMR who can operate
immediately with minimum training and supervision.
That complainant is a veteran and seasoned PMR is admitted. In fact, it
is even conceded by respondents that complainant was the leader of his
peers in PED as indicated in the letter dated 20 December 1982 of
Jaime Victa to complainant. That the Cagayan Region is relatively
inaccessible cannot be debated. That the territory needed a responsible
PMR who could work under the least supervision is a judgment of
respondents. And that this judgment was arrived at upon consultations
among the PED Marketing Manager Jaime Victa, the Director for
Administration Francisco Lim, and the General Manager A. C. Bout has
been proven by respondents.
It appearing, therefore, that the order to transfer complainant is based
upon a judgment of his employer Abbott, which judgment to transfer is
in the with a company practice which is not contrary to law, morals or
 public policy, hence, beyond the competence of this office to question,
the refusal of complainant to obey the lawful order of Abbott is gross
insubordination — a valid cause for dismissal.
Complainant asserted that the true reason for his transfer was the
personal ill motives on the part of respondent Victa who resented the
derogatory remarks attributed to him, as purportedly shown in Victa's
memoranda dated 20 December 1982 and 26 April 1983. However, a
cursory reading of said memoranda in question who show that the
same were legitimately issued by Victa in the exercise of his functions
as PED Manager. And the fact that complainant never lifted a finger to
formally question said memoranda is a mute admission on his part that
the allegations therein are true.
Complainant also alleged that his transfer was a demotion. However, no
explanation was given much less any evidence presented in support of
the allegation. On the other hand, it is clear that there was no change in
complainant's position and salary, privileges and benefits he was
receiving while in Manila. With respect to the sales commission, Abbott
claimed that had complainant accepted the assignment, he could have
earned more because the sales prospects in the Cagayan Territory,
which comprises Nueva Vizcaya, Isabela and Cagayan Province were
much higher than the territory assigned to him in Manila. Besides, the
assignment offered an important avenue for future promotion,
respondent concluded. (pp. 6-9, Labor Arbiter's decision).
Therefore, Bobadilla had no valid reason to disobey the order of transfer. He had tacitly
given his consent thereto when he acceded to the petitioners' policy of hiring sales staff
who are willing to be assigned anywhere in the Philippines which is demanded by the
petitioners' business.
By the very nature of his employment, a drug salesman or medical representative is
expected to travel. He should anticipate reassignment according to the demands of their
business. It would be a poor drug corporation which cannot even assign its
representatives or detail men to new markets calling for opening or expansion or to
areas where the need for pushing its products is great. More so if such reassignments
are part of the employment contract.
WHEREFORE, the petition is hereby GRANTED. The questioned decision of the National
Labor Relations Commission is SET ASIDE. The decision of the labor Arbiter dated April
16,1985 is REINSTATED.
SO ORDERED.
Fernan (Chairman), Bidin and Cortes, JJ., concur.
Feliciano, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 169750 February 27, 2007
RURAL BANK OF CANTILAN, INC., and WILLIAM HOTCHKISS III, Petitioners,
vs.
ARJAY RONNEL H. JULVE, Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on Certiorari assailing the
Decision1 of the Court of Appeals (Twenty Second Division, Cagayan de Oro City) dated
September 23, 2004 in CA-G.R. SP No. 77206 and its Resolution of September 6, 2005.
The facts of this case as found by the Court of Appeals are:
On August 1, 1997, the Rural Bank of Cantilan, Inc., petitioner, hired respondent as a
management trainee. Later, he was appointed as planning and marketing officer.
On June 18, 2001, William Hotchkiss III (also a petitioner), president of petitioner bank,
issued a memorandum addressed to all its branch managers informing them of the
abolition of the positions of planning and marketing officer and remedial officer; that
this was undertaken in accordance with the bank’s Personnel Streamlining Program;
and that the operations officer shall absorb the functions of the abolished offices.
On July 18, 2001, Hotchkiss sent respondent a memorandum stating that he has been
appointed bookkeeper I at the bank’s branch in Madrid, Surigao del Sur effective
immediately with the same salary corresponding to his old position. Initially, respondent
agreed to accept the appointment, but eventually, he changed his mind and made the
following notation on Hotchkiss’ memorandum, thus:
I am withdrawing my signature on this appointment because I feel that this is a
demotion (on the position itself and allowances) and not a lateral transfer as what the
President told me yesterday. I believe I do not deserve a demotion.
Thank you.
On August 9, 2001, Hotchkiss appointed respondent as bookkeeper I and assistant
branch head of the Madrid branch. However, he did not report for work.
On September 11, 2001, Hotchkiss directed respondent to explain why he should not be
sanctioned for his failure to assume his new post at the Madrid branch.1awphi1.net
The following day, respondent submitted his written explanation, which partly reads:
I regret to say that I am not accepting the position of Asst. Branch Head of RBCI-Madrid
Branch for the very reason that the papers were not left with me by the Admin. Officer
after she let me read them. Considering that Asst. Branch Head is a newly-created
position, I requested her for a copy of the said papers first so I can thoroughly study
them before making my decision. But she immediately took them back from me after I
told her about this.
On September 14, 2001, respondent filed with the Regional Arbitration Branch No. XIII,
National Labor Relations Commission (NLRC), Butuan City, a complaint for constructive
dismissal against petitioners, docketed as NLRC Case No. RAB-13-09-00276-2001.
On January 14, 2002, the Labor Arbiter rendered a Decision, the dispositive portion of
which is partly reproduced below:
WHEREFORE, premises considered, judgment is hereby entered:
1. Declaring complainant as constructively illegally dismissed;
2. Ordering respondents to reinstate complainant to his former or equivalent
position without loss of seniority rights with full backwages from the time his
salary was withheld from him up to the time he is actually reinstated;
3. To pay complainant his partial backwages in the amount of ₱57,165.33
computed up to the date of this decision as follows:
A. BACKWAGES FROM 16 Oct 2001 to 15 Jan 2002 (4 months) (Partial)
₱12,192.50 + 1,000 x 4 = ₱52,768.00
Plus ₱52,768/13 (13th mo. Pay) = ₱4,397.33
TOTAL BACKWAGES ₱57,165.33
and
4. Ordering respondents to pay complainant moral and exemplary damages in the total
amount of ₱100,000.00 plus ₱15,718.53, as attorney’s fees which is equivalent to 10%
of the total monetary award.
Complainant’s other claims are dismissed for lack of merit.
SO ORDERED.
On appeal by petitioners, the NLRC, in its Resolution dated November 19, 2002, set
aside the Labor Arbiter’s judgment, thus:
WHEREFORE, foregoing premises considered, the appealed decision is Vacated
and Set Aside. In lieu thereof, a new judgment is rendered dismissing the above-
entitled case for lack of merit.
SO ORDERED.
The NLRC held that respondent’s reassignment is not a demotion. There was
neither diminution in functions and pay. Thus, he was not constructively
dismissed from employment. Moreover, respondent himself admitted that he
decided not to report for work at his new station. Yet, he continued receiving his
salaries and allowances.
Respondent filed a motion for reconsideration but it was denied by the NLRC.
Respondent then filed with the Court of Appeals a petition for certiorari, docketed
as CA-G.R. SP No. 77206.
On September 23, 2004, the Court of Appeals rendered its Decision granting the Respondent contends that the abolition of his position as planning and marketing
petition, thus: officer and his appointment as bookkeeper I and assistant branch head of the
WHEREFORE, the instant Petition is hereby GRANTED. The NLRC Resolutions Madrid Branch is a demotion. However, a look at the functions of his new position
dated 19 November 2002 and 26 February 2003 are hereby ANNULLED and SET shows the contrary. The bookkeeper and assistant branch head is not only
ASIDE. The Labor Arbiter’s Decision dated 14 January 2002 is hereby charged with preparing financial reports and monthly bank reconciliations, he is
REINSTATED. also the head of the Accounting Department of a branch. Under any standard,
SO ORDERED. these are supervisory and administrative tasks which entail great responsibility.
Petitioners filed a motion for reconsideration. However, it was denied by the Moreover, respondent’s transfer did not decrease his pay.
appellate court in its Resolution dated September 6, 2005. Nor was respondent’s transfer motivated by ill-will or prejudice on the part of
The only issue before us is whether the Court of Appeals erred in holding that petitioners. His position was not the only one abolished pursuant to the bank’s
respondent was constructively dismissed from employment. Personnel Streamlining Program. We recall that the position of remedial officer
In resolving this issue, we rely on the following guide posts: was likewise abolished. Petitioners’ reason was to acquire savings from the
Under the doctrine of management prerogative, every employer has the inherent salaries it would pay to full-time personnel in these positions.
right to regulate, according to his own discretion and judgment, all aspects of Finally, we note that despite respondent’s refusal to accept the new appointment,
employment, including hiring, work assignments, working methods, the time, petitioners did not dismiss him. Rather, it was he who opted to terminate his
place and manner of work, work supervision, transfer of employees, lay-off of employment when he purposely failed to report for work.
workers, and discipline, dismissal, and recall of employees.2 The only limitations In fine, we hold that the Court of Appeals erred when it concluded that respondent
to the exercise of this prerogative are those imposed by labor laws and the was constructively dismissed from employment.
principles of equity and substantial justice. WHEREFORE, we GRANT the petition and REVERSE the Decision of the Court of
While the law imposes many obligations upon the employer, nonetheless, it also Appeals in CA-G.R. SP No. 77206. The Resolutions of the NLRC dated November 19,
protects the employer’s right to expect from its employees not only good 2002 and February 26, 2003, dismissing respondent’s complaint are AFFIRMED.
performance, adequate work, and diligence, but also good conduct and loyalty. 3 In SO ORDERED.
fact, the Labor Code does not excuse employees from complying with valid
company policies and reasonable regulations for their governance and guidance.
Concerning the transfer of employees, these are the following jurisprudential
guidelines: (a) a transfer is a movement from one position to another of
equivalent rank, level or salary without break in the service or a lateral
movement from one position to another of equivalent rank or salary; 4 (b) the
employer has the inherent right to transfer or reassign an employee for legitimate
business purposes;5 (c) a transfer becomes unlawful where it is motivated by
discrimination or bad faith or is effected as a form of punishment or is a demotion
without sufficient cause;6 (d) the employer must be able to show that the transfer
is not unreasonable, inconvenient, or prejudicial to the employee.7
Constructive dismissal is defined as "quitting when continued employment is
rendered impossible, unreasonable, or unlikely as the offer of employment
involves a demotion in rank and diminution of pay."8
In light of the above guidelines, we agree with the NLRC in ruling that respondent
was not constructively dismissed from employment.
SECOND DIVISION
[G.R. No. 129843. September 14, 1999]
BLUE DAIRY CORPORATION and/or EDISON T. AVIGUETERO and PEDRO G.
MIGUEL, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and
ELVIRA R. RECALDE, respondents.
DECISION
BELLOSILLO, J.:
BLUE DAIRY CORPORATION, engaged in the processing of dairy and chocolate
products, juices and vegetables, hired on 14 May 1994 private respondent Elvira R.
Recalde as a food technologist in its laboratory with the following specific
functions: microanalysis of toppings and syrup, onions and garlic, and liquid mixes (soft
serve and milk shake); physical and chemical analysis of liquid mixes, including raw
materials for toppings and syrup and its inspection; routine computation for liquid
mixes and supervision while weighing the materials; performing chlorine test for
lettuce, red onion, white onion and green pepper; preparation of forms for toppings and
syrup; sensory evaluation of toppings and syrup; product development (assistant); and,
preparation of food coloring for orange syrup production.[1]
On 22 May 1994, a Sunday, Recalde reported for work but claimed that she was not
given her premium pay.
On 21 October 1994 Recalde accompanied Production Manager Editha N. Nicolas in
conducting a sensory evaluation of vanilla syrup in one of the outlets of a client. While
on their way back to the office a post fell on the company vehicle they were riding due to
a raging typhoon damaging the vehicle's windshield and side mirror.
On 3 December 1994 Recalde was transferred from the laboratory to the vegetable
processing section where she cored lettuce, minced and repacked garlic and performed
similar work, and was restricted from entering the laboratory. She was unhappy. She
considered her new job humiliating and menial. On 14 December 1994 she stopped
reporting for work. The following day she sent a letter to petitioner Edison T.
Aviguetero, the President and Chairman of the Board of Director of Blue Dairy
Corporation, reading -
I would like to inform you that I will no longer report for work because of your drastic
and oppressive action. And besides, I have already filed a case against BLUE DAIRY
CORPORATION and/or EDISON T. AVIGUETERO, PEDRO G. MIGUEL x x x x[2]
On 16 December 1994 Recalde filed a complaint against petitioner Blue Dairy
Corporation, Edison T. Aviguetero and Pedro G. Miguel[3] for constructive dismissal and
non-payment of premium pay. She also claimed overtime pay as well as moral and
exemplary damages plus attorneys fees.
Petitioners contended that Recalde was given a less sensitive assignment outside of
the laboratory on account of her dishonesty which resulted in loss of trust and
confidence. They seriously took into account the result of the investigation concerning
the 21 October incident that Recalde was actually scouting for a new residence using
company vehicle without prior permission from the General Manager and during office
hours, in violation of par. IV, subpars. B and G, of the company's General Rules and
Regulations. Petitioners accorded credence to the narrations of Rolando V. Flores, driver
of the damaged vehicle, to that effect which act of dishonesty could even have merited
dismissal from employment had they adhered simply to jurisprudential rule but took
into account instead the spirit of the approaching Christmas season.
The Labor Arbiter was convinced that petitioners were guilty of constructive
dismissal as he found the justification for Recaldes transfer unreasonable: first, the
unofficial trip on the way back to the office on 21 October was undertaken through the
bidding of the Production Manager; second, loss of trust and confidence must
necessarily occur in the performance of duties; and third, the new position of Recalde
was too humiliating and demeaning. The Labor Arbiter also found that petitioners failed
to grant premium pay to Recalde for her work performed on 22 May 1994, a Sunday.
On 31 October 1996 petitioners were thus ordered to reinstate Recalde to her
former position as food technologist assisting in the quality assurance processes of the
company and performing laboratory work without loss of seniority rights and privileges,
with full back wages as well as to grant her premium pay, initially computed thus -
Back Wages:
12/14/94 - 12/30/96 = 24.53 mos.
P183.33 x 30 days x 24.53 mos. - - - - - - - P134,912.54
Premium Pay for Rest Day:
(May 22, 1994): P183.33 x 30% = P55.00 - - - 55.00
___________
TOTAL AWARD: - - - - - - - - - - - - - - - - - P134,967.54
The other claims were dismissed for lack of merit.[4]
On 30 April 1997 public respondent National Labor Relations Commission (NLRC)
affirmed the ruling.[5] On 19 June 1997 reconsideration was denied.[6]
Petitioners insist that the transfer of Recalde from the laboratory to the vegetable
processing section was effected in the exercise of management prerogative. It did not
amount to a constructive dismissal as Recalde erroneously maintained. Moreover,
petitioners submit that the coring of lettuce together with the other production jobs
connected therewith is one of the most important aspects of the corporations existence;
in fact, those assigned to the vegetable processing section are mostly professionals like
teachers, computer secretaries and forestry graduates.
No grave abuse of discretion was committed by the NLRC. Indeed, it is the
prerogative of management to transfer an employee from one office to another within
the business establishment based on its assessment and perception of the employees
qualifications, aptitudes and competence, and in order to ascertain where he can
function with maximum benefit to the company.[7] This is a privilege inherent in the
employers right to control and manage his enterprise effectively. The freedom of
management to conduct its business operations to achieve its purpose cannot be
denied.[8]
But, like other rights, there are limits thereto. The managerial prerogative to
transfer personnel must be exercised without grave abuse of discretion, bearing in mind
the basic elements of justice and fair play. Having the right should not be confused with
the manner in which that right is exercised. Thus, it cannot be used as a subterfuge by
the employer to rid himself of an undesirable worker.[9] In particular, the employer must
be able to show that the transfer is not unreasonable, inconvenient or prejudicial to the
employee; nor does it involve a demotion in rank or a diminution of his salaries,
privileges and other benefits.[10] Should the employer fail to overcome this burden of
proof, the employees transfer shall be tantamount to constructive dismissal, which has
been defined as a quitting because continued employment is rendered impossible,
unreasonable or unlikely; as an offer involving a demotion in rank and diminution in
pay.[11] Likewise, constructive dismissal exists when an act of clear discrimination,
insensibility or disdain by an employer has become so unbearable to the employee
leaving him with no option but to forego with his continued employment. [12]
In the present case, petitioners failed to justify Recaldes transfer from the position
of food technologist in the laboratory to a worker in the vegetable processing
section. We recall that what triggered Recaldes transfer was the 21 October incident
where she was found to have allegedly utilized company vehicle in looking for a new
residence during office hours without permission from management. In petitioners
view, she was dishonest such that they lost their trust and confidence in her. Yet, it does
not appear that Recalde was provided an opportunity to refute the reason for the
transfer. Petitioners merely relied on the narrations of the company driver. Nor was
Recalde notified in advance of her impending transfer which was, as we shall elucidate
later, a demotion in rank. In Gaco v. NLRC[13] we noted -
While due process required by law is applied in dismissals, the same is also applicable to
demotions as demotions likewise affect the employment of a worker whose right to
continued employment, under the same terms and conditions, is also protected by
law. Moreover, considering that demotion is, like dismissal, also a punitive action, the
employee being demoted should, as in cases of dismissals, be given a chance to contest the
same.
Further, petitioners overstretched the effect of Recaldes claimed wrongdoing. We
have ruled that breach of trust and confidence as a ground for dismissal from
employment must be related to the performance of the duties of the employee such as
would show him to be thereby unfit to continue working for the employer. [14] By
analogy, breach of trust and confidence as a ground for reassignment must be related to
the performance of the duties of the employee such as would show him to be thereby
unfit to discharge the same task. Clearly, the act of dishonesty imputed to Recalde has no
bearing at all to her work in the laboratory.
Further still, granting that Recalde was proved guilty of dishonesty, the companys
General Rules and Regulations provide the corresponding sanctions therefor. Recalde
appears to have no prior record of infractions. For "leaving post temporarily without
permission during working hours" committed for the first time, "warning" is imposable,
whereas for "unauthorized use of any company vehicle" committed for the first time, the
commensurate penalty is "15 days suspension."[15] Although petitioners invoked the
pertinent provisions of the rules and regulations which Recalde allegedly violated, for
reasons known only to them, they disregarded those sanctions. Instead, they gave her a
less sensitive assignment outside of the laboratory as they claimed that had they
adhered to the rules she would have been dismissed outright for her dishonesty in the
unauthorized use of company property. Then too is their claim that they were moved by
compassion on account of the then approaching Christmas season. Commendable as this
"compassionate" gesture may seem, nevertheless, petitioners failed to realize that it was
not relief from dismissal which they provided to Recalde when they assigned her to the
vegetable processing section but discomfiture.
We find insignificant the submission of petitioners that "the coring of lettuce
together with the other production jobs connected therewith is one of the most
important aspects of the corporations existence" and that "those assigned to the
vegetable processing section are mostly professionals like teachers, computer
secretaries and forestry graduates." Rather, the focus should be on the comparison
between the nature of Recaldes work in the laboratory and in the vegetable processing
section. As food technologist in the laboratory, she occupied a highly technical
position requiring use of her mental faculty. As a worker in the vegetable processing
section, she performed mere mechanical work. It was virtually a transfer from a position
of dignity to a servile or menial job.[16] We agree with the observation of the Office of the
Solicitor General that the radical change in Recaldes nature of work unquestionably
resulted in, as rightly perceived by her, a demeaning and humiliating work
condition. The transfer was a demotion in rank, beyond doubt.
Another aspect of comparison is the workplaces themselves. Petitioners admitted
in their answer to Recaldes complaint that -
Respondents Laboratory is the most expensive area, on a per-square-meter basis, in the
companys premises. It is here where the quality of the companys products is tested and
assured. Since these products are food items ingested by the consuming public, this
Laboratory becomes several folds critical. Hence, only highly trusted authorized personnel
are allowed access to this place.[17]
 In other words, the laboratory is the place where the quality of the totality of
petitioners' products such as dairy, juices, chocolates and vegetables is tested. On the
other hand, the vegetable processing section, as the name implies, involves processing of
vegetables alone. Definitely, a transfer from a workplace where only highly trusted
authorized personnel are allowed access to a workplace that is not as critical is another
reason enough for Recalde to howl a protest.
We reiterate that the NLRC did not commit grave abuse of discretion in affirming
the ruling of the Labor Arbiter that petitioners are guilty of constructive
dismissal. Recalde is entitled to reinstatement as food technologist without loss of
seniority rights and privileges and with full back wages, as directed by the Labor
Arbiter. We clarify however that conformably with Art. 279 of the Labor Code, as
amended by Sec. 34 of RA 6715, to be included in the computation of back wages are the
illegally dismissed employees allowances and other benefits or their monetary
equivalent.
WHEREFORE, the petition is DISMISSED. The Decision of public respondent
National Labor Relations Commission finding that private respondent Elvira R. Recalde
was constructively dismissed from employment and entitled to premium pay is
AFFIRMED. Petitioners Blue Dairy Corporation, Edison T. Aviguetero and Pedro G.
Miguel are ordered to reinstate private respondent Recalde as food technologist in the
laboratory without loss of seniority rights and privileges and with full back wages
inclusive of allowances and other benefits or their monetary equivalent to be computed
from her dismissal on 14 December 1994 up to actual reinstatement, and to grant her
premium pay of P55.00 for work performed on 22 May 1994, a Sunday. Costs against
petitioners.
SO ORDERED.
Mendoza, Quisumbing, and Buena, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 76645 July 23, 1991
PHILIPPINE TELEGRAPH AND TELEPHONE CORPORATION, petitioner,
vs.
ALICIA LAPLANA, Hon. RICARDO ENCARNACION, and NATIONAL LABOR
RELATIONS COMMISSION,respondents.
D.P. Mercado & Associates for petitioner.
NARVASA, J.:
Alicia Laplana was the cashier of the Baguio City Branch Office of the Philippine
Telegraph and Telephone Corporation (hereafter, simply PT & T). Sometime in March
1984, PT & T's treasurer, Mrs. Alicia A. Arogo, directed Laplana to transfer to the
company's branch office at Laoag City. Laplana refused the reassignment and proposed
instead that qualified clerks in the Baguio Branch be trained for the purpose. She set out
her reasons therefor in her letter to Mrs. Arogo dated March 27, 1984, viz.:
1. I have established Baguio City as my permanent residence. Working in Laoag
will involve additional expenses like for my board and lodgingly, fare, and other
miscellaneous expenses. My salary alone will not be enough — there will be no
savings and my family will spend more on account of my transfer.
2. I will be away from my family. A far assignment would be a big sacrifice on
my part keeping me away from my husband and family which might affect my
efficiency.
3. Since I have been with PT & T for more than six years already, I have learned
to work with my co-employees here more effectively. Working in another place
with entirely different environment will require long adjustment period,
thereby affecting performance of my job.
On April 12, 1984, Mrs. Arogo reiterated her directive for Laplana's transfer to the Laoag
Branch, this time in the form of a written Memorandum, informing Laplana that
"effective April 16, 1984, you will be reassigned to Laoag branch assuming the same
position of branch cashier," and ordering her "to turn over your accountabilities such as
PCF, undeposited collections, used and unused official receipts, other accountable forms
and files to Rose Caysido who will be in charge of cashiering in Baguio."
Apparently Laplana was not allowed to resume her work as Cashier of the Baguio
Branch when April 16, 1984 came. She thereupon wrote again to Mrs. Arogo advising
that the directed transfer was unacceptable, reiterating the reasons already given by her
in her first letter dated March 27, 1984. On April 30, 1984, Laplana received a telegram
from Mrs. Arogo reading as follows:
PLEASE REPORT TO MANILA ON MAY 2, 1984 FOR NEW JOB ASSIGNMENT
IF YOU DON'T REPORT ON MAY 2, 1984, WE WILL CONSIDER THIS AS
ABANDONMENT OF YOUR JOB AND THIS MIGHT CONSTRAIN US TO IMPOSE
DISCIPLINARY ACTION AGAINST YOU
YOU CAN GET YOUR CASH ADVANCE FOR TRANSPORTATION PETITION FROM
MRS. BAUTISTA TODAY.
On May 8, 1984, Laplana in turn sent a telex message to Mrs. Arogo which reads as
follows:
I LOVE WORKING FOR OUR COMPANY HOWEVER I AM SORRY I CANNOT
ACCEPT YOUR JOB OFFER IN MANILA THANK YOU AND RETRENCH ME
INSTEAD. MY BEST REGARDS.
Thereafter, Laplana sent a letter to Mrs. Arogo on May 15, 1984, expatiating on her telex
message and reiterating her request to be retrenched, as follows:
Dear Mrs. Arogo:
Thank you for the job in Manila. However, I cannot accept the said offer because
I have established Baguio City as my permanent residence. Considering the high
cost of living in Manila it will surely involve additional expenses on my part. My
salary alone will not be enough to sustain my expenses. Furthermore, a far
assignment will be a big sacrifice on my part keeping me away from my
husband which might affect my health due to an entirely new environment and
climate, thereby affecting my efficiency.
In view of the above reasons, I hereby request management to retrench me.
xxx xxx xxx
Termination of Laplana's employment on account of retrenchment thereupon
followed.1awp++i1 On May 19, 1984, PT & T issued an "Employees's Service Report"
which contained the following remarks regarding Laplana: "Services terminated due to
retrenchment with corresponding termination pay effective May 16, 1984. " And on June
30, 1984, Mrs. Arogo sent a Memorandum to the company's Baguio Branch Manager
embodying the computation of the separation and 13th month pay due to Laplana,
together with a check for the amount thereof, P2,512.50 and a quitclaim deed, and
instructing said manager to "have the quitclaim signed by Alicia Laplana before
releasing the check and return all copies of said form . . . immediately." On July 4, 1984,
Laplana signed the quitclaim and received the check representing her 13th month and
separation pay.
On October 9, 1984, Laplana filed with the Labor Arbiters' Office at Baguio City, thru the
CLAO, a complaint against PT & T its "Baguio Northwestern Luzon Branch, Baguio City,"
and Paraluman Bautista, Area Manager. In her complaint, she set forth substantially the
facts just narrated, and alleged, as right of action, that "when she insisted on her right of
refusing to be transferred, the Defendants made good its warning by terminating her
services on May 16, 1984 on alleged ground of "retrenchment," although the truth is, she
was forced to be terminated and that there was no ground at all for the retrenchment;"
that the company's "act of transferring is not only without any valid ground but also
arbitrary and without any purpose but to harass and force . . . (her) to eventually resign."
In answer, the defendants alleged that —
1) Laplana "was being transferred to Laoag City because of increase in sales due
to the additional installations of vodex line;"
2) in connection with her transfer, Laplana had been informed "that she would
be given ten (10) days. relocation allowance and transportation expense from
Baguio to Laoag City;"
3) the company "was exercising management prerogatives in transferring
complainant . . . and there is no showing that this exercise was arbitrarily and
whimsically done;"
4) Laplana's services were terminated on her explicit declaration that "she was
willing to be retrenched rather than be assigned to Laoag City or Manila;"
5) in any event, the company had been actually suffering losses; in fact, in June,
1984, several employees "were retrenched because of losses incurred due to
rising costs in wages, rentals, production supplies and other operational costs."
Upon the issues thus raised, judgment was rendered on March 28, 1985 by the Labor
Arbiter in Laplana's favor.1The Arbiter's verdict was made to rest essentially on the
following pronouncements (made avowedly in reliance on the doctrine laid down by this
Court in Helmut Dosch v. NLRC and Northwest Airlines, Inc., G.R. No. 51182, July 5,
19832), to wit:
Transferring an employee from one place to another is not by itself unlawful. It
is within the inherent right of an employer to transfer or assign an employee in
the pursuit of its legitimate business interests. However, this right is not
absolute.
Transfer becomes unlawful where it is motivated by discrimination or in bad
faith, or is effected as a form of punishment or demonition without sufficient
cause.
The transfer of the complainant from Baguio City to Laoag City or to Manila is
patently a demotion and a form of punishment without just cause and would
cause untold suffering on the part of the complainant. . . .
With these premises in mind, the Arbiter ruled "that the complainant was illegally
dismissed . . . (and her) acceptance of separation pay . . . cannot cure the illegality of her
dismissed because it was forced upon her — she was compelled to accept the lesser
evil," and that there was "no evidence to show that the complainant was retrenched to
prevent losses," but that on the contrary, "it is continuously expanding and improving its
facilities, and hiring new employees." Accordingly, he ordered —
1) PT & T "to reinstate immediately the complainant, Alicia R. Laplana, to her
former position or equivalent position without loss of seniority rights and
benefits earned with full backwages and benefits less P2,512.50, the amount she
received as separation, from the time her compensation was suspended until
reinstated;"
2) the dismissal of the claim for moral and exemplary damages for lack of merit;
and
3) the dismissal of the case against Mrs. Paraluman Bautista also for lack of
merit.
The National Labor Relations Commission affirmed the Arbiter's judgment and
dismissed the respondents' appeal, by Resolution dated August 5, 1986. 3
There can be no quarrel with the Arbiter's formulation of the general principle
governing an employer's prerogative to transfer his employees from place to place or
from one position to another. The Arbiter acknowledges "the inherent right of an
employer to transfer or assign an employee in the pursuit of its legitimate business
interests" subject only to the condition that it be not "motivated by discrimination or
(made) in bad faith, or . . . effected as a form of punishment or demotion without
sufficient cause." This is a principle uniformly adhered to by this Court.4
The case law on the matter is succinctly set out by a noted commentator on Labor
Relations Law as follows:5
. . . Except as limited by special laws, the employer is free to regulate, according
to his own discretion and judgment, all aspects of employment, including hiring,
work assignments, working methods, time, place and manner of work, tools to
be used, processes to be followed, supervision of workers, working regulations,
transfer of employees, work supervision, lay-off of workers, and the discipline,
dismissal and recall of workers. This flows from the established rule that labor
law does not authorize the substitution of the judgment of the employer in the
conduct of his business and does not deprive the employer of the right to select
or dismiss his employees for any cause, except in cases of unlawful
discrimination (NLU v. Insular-Yebana Tobacco Corp., 2 SCRA 924, 931;
Republic Savings Bank v. CIR, 21 SCRA 226, 235).
. . . The employer has the prerogative of making transfers and reassignment of
employees to meet the requirements of the business. Thus, where the rotation
 of employees from the day shift to the night shift was a standard operating
procedure of management, an employee who had been on the day shift for some
time may be transferred to the night shift (Castillo v. CIR, 39 SCRA 81).
Similarly, transfers effected pursuant to a company policy to transfer employees
from one theater to other theaters operated by the employer, in order to
prevent connivance among them, was sustained (Cinema, Stage and Radio
Entertainment Free Workers v. CIR, 18 SCRA 1071). Similar transfers and re-
assignments of employees have been upheld such as the re-assignment of one
from a position of supervisor to that of engineer at the power house (Interwood
Employees Assn. v. Interwood, 99 Phil. 82), or the transfer of the union
president from his position of messenger clerk in a hotel to purely office work
and two other unionists from the position of hotel guard to line and elevator
men, without diminution of pay or other employee's rights (Bay View Hotel
Employees Union v. Bay View Hotel, L-10393, March 30, 1960), or the
temporary assignment of a sales clerk to another section of the store (Marcaida
v. PECO, 63 O.G. 8559).
Subsequent decisions of this Court have made no deviation from the doctrine. In
Philippine Japan Active Carbon Corp. v. NLRC, promulgated on March 8, 1989 6 this Court
made the following pronouncement, to wit:
It is the employer's prerogative, based on its assessment and perception of its
employees' qualifications, aptitudes, and competence, to move them around in
the various areas of its business operations in order to ascertain where they will
function with maximum benefit to the company. An employee's right to security
of tenure does not give him such a vested right in his position as would deprive
the company of its prerogative to change his assignment or transfer him where
he will be most useful. When his transfer is not unreasonable, nor inconvenient,
nor prejudicial to him, and it does not involve a demotion in rank or diminution
of his salaries, benefits, and other privileges, the employee may not complain
that it amounts to a constructive dismissal.
In Yuco Chemical Industries, Inc. v. MOLE et al. (judgment promulgated on May 28,
1990)7 the same "general principles on transfer" were re-stated. The Court said:
. . . In a number of cases, the Court has recognized and upheld the prerogative of
management to transfer an employee from one office to another within the
business establishment provided that there is no demotion in rank or
diminution of his salary, benefits and other privileges. This is a privilege
inherent in the employer's right to control and manage its enterprise effectively.
Even as the law is solicitous of the employees' welfare, it cannot ignore the right
of the employer to exercise what are clearly and obviously management
prerogatives. The freedom of management to conduct its business operations to
achieve its purpose cannot be denied.
But like all other rights, there are limits. The managerial prerogative to transfer
personnel must be exercised without grave abuse of discretion and putting to
mind the basic elements of justice and fair play. Having the right should not be
confused with the manner in which that right must be exercised. Thus it cannot
be used as a subterfuge by the employer to rid himself of an undesirable
worker. Nor when the real reason is to penalize an employee for his union
activities and thereby defeat his right to self-organization. But the transfer can
be upheld when there is no showing that it is unnecessary, inconvenient and
prejudicial to the displaced employee.
The acceptability of the proposition that transfers made by an employer for an illicit or
underhanded purpose — e.g., to evade the duty to bargain collectively, or to defeat the
welfare, right of collective bargaining, or discriminate against one or some of them on
account of their union activities — is self-evident and cannot be gainsaid. The difficulty
lies in the situation where no such illicit, improper or underhanded purpose can be
ascribed to the employer, the objection to the transfer being ground solely upon the,
personal inconvenience or hardship that will be caused to the employee by reason of the
transfer. What then?
In Dosch v. NLRC, supra, this Court found itself unable to agree with the NLRC that the
petitioner employee was guilty of disobedience and insubordination in refuse to accept
his transfer from the Philippines to an overseas post. Said the Court:
. . . The only piece of evidence on which (respondent employer) Northwest
bases the charge of contumacious refusal is petitioner's letter dated August 28,
1975 to R.C. Jenkins wherein petitioner acknowledged receipt of the former's
memorandum dated August 18, 1975, appreciated his promotion to Director of
International Sales but at the same time regretted "that at this time for personal
reasons and reasons of my family, I am unable to accept the transfer from the
Philippines' and thereafter expressed his preference to remain in my Position of
Manager-Philippines until such time that my services in that capacity are no
longer required by Northwest Airlines." From this evidence, We cannot discern
even the slightest hint of defiance, much less imply insubordination on the part
of petitioner.
Withal, it is evident that the courteous tone of the employee's letter did not alter the
actuality of his refusal to accept the transfer decreed by his employer in the exercise of
its sound business judgment and discretion; and that the transfer of an employee to an
overseas post cannot be likened to a transfer from a city to another within the country,
as in the case at bar.
In this case, the employee (Laplana) had to all intents and purposes resigned from her
position. She had unequivocally asked that she be considered dismissed, herself
suggesting the reason therefor –– retrenchment. When so dismissed, she accepted
separation pay. On the other hand, the employer has not been shown to be acting
otherwise than in good faith, and in the legitimate pursuit of what it considered its best
interests, in deciding to transfer her to another office. There is no showing whatever that
the employer was transferring Laplana to another work place, not because she would be
more useful there, but merely "as a subterfuge to rid . . . (itself) of an undesirable
worker," or "to penalize an employee for . . . union activities. . . ." The employer was
moreover not unmindful of Laplana's initial plea for reconsideration of the directive for
her transfer to Laoag; in fact, in response to that plea not to be moved to the Laoag
Office, the employer opted instead to transfer her to Manila, the main office, offering at
the same time the normal benefits attendant upon transfers from an office to another.
The situation here presented is of an employer transferring an employee to another
office in the exercise of what it took to be sound business judgment and in accordance
with pre-determined and established office policy and practice, and of the latter having
what was believed to be legitimate reasons for declining that transfer, rooted in
considerations of personal convenience and difficulties for the family. Under these
circumstances, the solution proposed by the employee herself, of her voluntary
termination of her employment and the delivery to her of corresponding separation pay,
would appear to be the most equitable. Certainly, the Court cannot accept the
proposition that when an employee opposes his employer's decision to transfer him to
another work place, there being no bad faith or underhanded motives on the part of
either party, it is the employee's wishes that should be made to prevail. In adopting that
proposition by way of resolving the controversy, the respondent NLRC gravely abused
its discretion.
WHEREFORE, the writ of certiorari prayed for is GRANTED and the Resolution of August
5, 1986 of respondent NLRC is thereby nullified and set aside, and the termination of
services of private respondent is declared legal and proper. No costs.
SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
THIRD DIVISION

ARMANDO G. YRASUEGUI, G.R. No. 168081

Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

Promulgated:
PHILIPPINE AIRLINES, INC.,
Respondent. October 17, 2008

x--------------------------------------------------x

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 by the Cabin and Crew
Administration Manual[1] 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
fromOctober 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 ofthe
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 his previous weight. After the visit,
petitioner made a commitment[3] 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,
F/S
Armando Yrasuegui[
4]
 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
the PALdecision 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 be dealt with accordingly. He was given another set of
weight check dates.[6] Again, petitioner ignored the directive and did not report for
weight checks. On June 26, 1990, petitioner was required to explain his refusal to
undergo weight checks.[7]
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 onAugust
20, 1992 and 205 pounds on November 5, 1992.
of 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 which to file his answer and
submit controverting evidence.[8]
On December 7, 1992, petitioner submitted his Answer.[9] 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 weight.[10]
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.[11]
His motion for reconsideration having been denied,[12] petitioner filed a
complaint for illegal dismissal against PAL.
Labor Arbiter, NLRC and CA Dispositions On October 8, 1999, the Labor Arbiter issued a writ of execution directing the
reinstatement of petitioner without loss of seniority rights and other benefits. [20]
On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled[13] that petitioner
was illegally dismissed. The dispositive part of the Arbiter ruling runs as follows: On February 1, 2000, the Labor Arbiter denied[21] the Motion to Quash Writ of
Execution[22] of PAL.
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 On March 6, 2000, PAL appealed the denial of its motion to quash to the
equivalent one, and to pay him:
NLRC.[23]

a. Backwages of Php10,500.00 per month from his dismissal

on June 15, 1993 until reinstated, which for purposes of appeal is On June 23, 2000, the NLRC rendered judgment[24] in the following tenor:
hereby set from June 15, 1993 up to August 15, 1998at P651,000.00;
WHEREFORE, premises considered[,] the Decision of the
b. Attorneys fees of five percent (5%) of the total award. Arbiter dated 18 November 1998 as modified by our findings herein, is
hereby AFFIRMED and that part of the dispositive portion of said
SO ORDERED.[14] 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
The Labor Arbiter held that the weight standards of PAL are reasonable in view monetary equivalent instead of simply backwages, from date of
of the nature of the job of petitioner.[15] However, the weight standards need not be dismissal until his actual reinstatement or finality hereof. Respondent
is enjoined to manifests (sic) its choice of the form of the reinstatement
complied with under pain of dismissal since his weight did not hamper the performance of complainant, whether physical or through payroll within ten (10)
days from notice failing which, the same shall be deemed as
of his duties.[16] Assuming that it did, petitioner could be transferred to other positions
complainants reinstatement through payroll and execution in case of
where his weight would not be a negative factor.[17] Notably, other overweight non-payment shall accordingly be issued by the Arbiter. Both appeals of
respondent thus, are DISMISSED for utter lack of merit.[25]
employees, i.e., Mr. Palacios, Mr. Cui, and Mr. Barrios, were promoted instead of being
disciplined.[18]
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
Both parties appealed to the National Labor Relations Commission (NLRC). [19]
can be no intentional defiance or serious misconduct by petitioner to the lawful order
of PAL for him to lose weight.[27]
 meant to be a continuing qualification for an employees position.[34] The failure to
Like the Labor Arbiter, the NLRC found the weight standards of PAL to be adhere to the weight standards is an analogous cause for the dismissal of an employee
reasonable. However, it found as unnecessary the Labor Arbiter holding that petitioner under Article 282(e) of the Labor Code in relation to Article 282(a). It is not willful
was not remiss in the performance of his duties as flight steward despite being disobedience as the NLRC seemed to suggest.[35] Said the CA, the element of willfulness
overweight. According to the NLRC, the Labor Arbiter should have that the NLRC decision cites is an irrelevant consideration in arriving at a
limitedhimself to the issue of whether the failure of petitioner to attain his ideal weight conclusion on whether the dismissal is legally proper.[36] In other words, the relevant
constituted willful defiance of the weight standards of PAL.[28] question to ask is not one of willfulness but one of reasonableness of the standard and
whether or not the employee qualifies or continues to qualify under this standard. [37]

Just like the Labor Arbiter and the NLRC, the CA held that the weight standards
PAL moved for reconsideration to no avail.[29] Thus, PAL elevated the matter to of PAL are reasonable.[38] Thus, petitioner was legally dismissed because he repeatedly
the Court of Appeals (CA) via a petition for certiorari under Rule 65 of the 1997 Rules of failed to meet the prescribed weight standards.[39] It is obvious that the issue of
Civil Procedure.[30] discrimination was only invoked by petitioner for purposes of escaping the result of his
dismissal for being overweight.[40]
By Decision dated August 31, 2004, the CA reversed[31] the NLRC:
On May 10, 2005, the CA denied petitioners motion for
WHEREFORE, premises considered, we hereby GRANT the
reconsideration.[41] Elaborating on its earlier ruling, the CA held that the weight
petition. The assailed NLRC decision is declared NULL and VOID and is
hereby SET ASIDE. The private respondents complaint is hereby standards of PAL are abona fide occupational qualification which, in case of violation,
DISMISSED. No costs.
justifies an employees separation from the service.[42]
SO ORDERED.[32]
Issues
The CA opined that there was grave abuse of discretion on the part of the NLRC
because it looked at wrong and irrelevant considerations [33] in evaluating the In this Rule 45 petition for review, the following issues are posed for resolution:
evidence of the parties. Contrary to the NLRC ruling, the weight standards of PAL are
 I.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
IN HOLDING THAT PETITIONERS 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 THAT PETITIONERS 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
I. The obesity of petitioner is a ground for dismissal under Article
282(e) [44] 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 qualify was willful or intentional. x x x[45]
Petitioner, though, advances a very interesting argument. He claims that obesity is a
physical abnormality and/or illness.[46] Relying on Nadura v. BenguetConsolidated,
Inc.,[47] 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.
 determination, and self-discipline. Indeed, during the clarificatory hearing on December
Even a cursory reading of the legal provision under consideration is
sufficient to convince anyone that, as the trial court said, illness cannot 8, 1992, petitioner himself claimed that [t]he issue is could I bring my weight down to
be included as an analogous cause by any stretch of imagination.
ideal weight which is 172, then the answer is yes. I can do it now.[49]
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 Nadurasillness could be True, petitioner claims that reducing weight is costing him a lot of
considered as analogous to any of them is beyond our understanding, expenses.[50] However, petitioner has only himself to blame. He could have easily availed
there being no claim or pretense that the same was contracted through
his own voluntary act.[48] the assistance of the company physician, per the advice of PAL.[51] He chose to ignore the
suggestion. In fact, he repeatedly failed to report when required to undergo weight

The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially checks, without offering a valid explanation. Thus, his fluctuating weight indicates

different from the case at bar. First, Nadura was not decided under the Labor Code. The absence of willpower rather than an illness.

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 Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental

employee who was a miner, was laid off from work because of illness, i.e., asthma. Here, Health, Retardation and Hospitals,[52] decided by the United States Court of Appeals (First

petitioner was dismissed for his failure to meet the weight standards of PAL. He was not Circuit). In that case, Cook worked from 1978 to 1980 and from 1981 to 1986 as an

dismissed due to illness. Fourth, the issue in Nadura is whether or not the dismissed institutional attendant for the mentally retarded at the Ladd Center that was being

employee is entitled to separation pay and damages. Here, the issue centers on the operated by respondent. She twice resigned voluntarily with an unblemished

propriety of the dismissal of petitioner for his failure to meet the weight standards record. Even respondent admitted that her performance met the Centers legitimate

of PAL. Fifth, in Nadura, the employee was not accorded due process. Here, petitioner expectations. In 1988, Cook re-applied for a similar position. At that time, she stood 52

was accorded utmost leniency. He was given more than four (4) years to comply with tall and weighed over 320 pounds. Respondent claimed that the morbid obesity of

the weight standards of PAL. plaintiff compromised her ability to evacuate patients in case of emergency and it also
put her at greater risk of serious diseases.

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 Cook contended that the action of respondent amounted to discrimination on

clearly shows that it is possible for him to lose weight given the proper attitude, the basis of a handicap. This was in direct violation of Section 504(a) of the
Rehabilitation Act of 1973,[53] 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]oluntarinessbasically 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).[54]
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 the job. The qualification is called a bona fide
occupational qualification (BFOQ).[55] 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 on a BFOQ necessary to the normal operation of a business or enterprise. [56]
Petitioner contends that BFOQ is a statutory defense. It does not exist if there is
no statute providing for it.[57] Further, there is no existing BFOQ statute that could justify
his dismissal.[58]
Both arguments must fail.
First, the Constitution,[59] the Labor Code,[60] and RA No. 7277[61] or the
Magna Carta for Disabled Persons[62] contain provisions similar to BFOQ.
Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British
Columbia Government and Service Employees Union (BCGSEU),[63] 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 the job; [64] (2) the
employer must establish that the standard is reasonably necessary [65] 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 Corporation v. Simbol,[66] 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 be unable to properly perform the duties of the job.[67]
In short, the test of reasonableness of the company policy is used because it is
parallel to BFOQ.[68] BFOQ is valid provided it reflects an inherent quality reasonably
necessary for satisfactory job performance.[69]
In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome Philippines,
Inc.,[70] 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, the Labor Arbiter,[71] NLRC,[72] and CA[73] 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 to observe extraordinary diligence for
the safety of the passengers it transports.[74] It is bound to carry its passengers safely as
far as human care and foresight can provide, using the utmost diligence of very cautious
persons, with due regard for all the circumstances.[75]
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.
evidence.[77] 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.

The rationale in Western Air Lines v. Criswell[76] relied upon by petitioner cannot Petitioner is also in estoppel. He does not dispute that the weight standards
apply to his case. What was involved there were two (2) airline pilots who were denied of PAL were made known to him prior to his employment. He is presumed to know the
reassignment as flight engineers upon reaching the age of 60, and a flight engineer who weight limit that he must maintain at all times. [78] In
was forced to retire at age 60. They sued the airline company, alleging that the age-60 fact, never did he question the authority of PAL when he was repeatedly asked to trim
retirement for flight engineers violated the Age Discrimination in Employment Act of down his weight. Bona fides exigit ut quod convenit fiat. Good faith demands that what is
1967. Age-based BFOQ and being overweight are not the same. The case of overweight agreed upon shall be
cabin attendants is another matter. Given the cramped cabin space and narrow aisles done. Kung ang tao ay tapat kanyang tutuparin ang napagkasunduan.
and emergency exit doors of the airplane, any overweight cabin attendant would
certainly have difficulty navigating the cramped cabin area. 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
In short, there is no need to individually evaluate their ability to perform their discipline is imposed to allow non-compliant cabin attendants sufficient opportunity to
task. That an obese cabin attendant occupies more space than a slim one is an meet the weight standards. Thus, the clear-cut rules obviate any
unquestionable fact which courts can judicially recognize without introduction of 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 him.[79] 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
standard and the private respondents failure to comply. [80] It is a basic rule in
evidence that each party must prove his affirmative allegation.[81]
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
fromPAL 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 substantial case of
discrimination to meet.[82]
We are not unmindful that findings of facts of administrative agencies, like the
Labor Arbiter and the NLRC, are accorded respect, even finality. [83] The reason is simple:
administrative agencies are experts in matters within their specific and specialized
jurisdiction.[84] 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 do not have infallibility and must be set aside when
they fail the test of arbitrariness.[85]
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 guaranty[86] 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 acts of private
individuals.[88] Indeed, the United States Supreme Court, in interpreting the Fourteenth
Amendment,[89] which is the source of our equal protection guarantee, is consistent in
saying that the equal protection erects no shield against private conduct, however
discriminatory or wrongful.[90] Private actions, no matter how egregious, cannot violate
the equal protection guarantee.[91]
 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 up to the time that the NLRC was reversed by the CA. [92]
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
thatPAL opted to physically reinstate him to a substantially equivalent position in
accordance with the order of the Labor Arbiter.[95] In fact, petitioner duly received the
return to work notice on February 23, 2001, as shown by his signature.[96]
Petitioner cannot take refuge in the pronouncements of the Court in a
case[97] that [t]he unjustified refusal of the employer to reinstate the dismissed employee
entitles him to payment of his salaries effective from the time the employer failed to
reinstate him despite the issuance of a writ of execution[98] 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 higher court.[99] 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 asksPAL to
comply with the impossible. Time and again, the Court ruled that the law does not exact
compliance with the impossible.[100]
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.

Exceptionally, separation pay is granted to a legally dismissed employee as an

act social justice,[101] or based on equity.[102] In both instances, it is required that the
dismissal (1) was not for serious misconduct; and (2) does not reflect on the moral
character of the employee.[103]

Here, We grant petitioner separation pay equivalent to one-half (1/2) months

pay for every year of service.[104] It should include regular allowances which he might
have been receiving.[105] 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.
SECOND DIVISION The evidence for the petitioners show that respondents Ronaldo D. Simbol (Simbol),
Wilfreda N. Comia (Comia) and Lorna E. Estrella (Estrella) were all regular employees of
STAR PAPER CORPORATION, G.R. No. 164774 the company.[1]
JOSEPHINE ONGSITCO & Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an
SEBASTIAN CHUA, employee of the company, whom he married on June 27, 1998. Prior to the marriage,
Petitioners, Present:
Ongsitco advised the couple that should they decide to get married, one of them should
PUNO, J., Chairman, resign pursuant to a company policy promulgated in 1995,[2] viz.:
SANDOVAL-GUTIERREZ, 1. New applicants will not be allowed to be hired if in case he/she has
CORONA, [a] relative, up to [the] 3rd degree of relationship, already employed by
AZCUNA, and the company.
-versus- GARCIA, JJ.
2. In case of two of our employees (both singles [sic],
Promulgated: one male and another female) developed a friendly relationship during
RONALDO D. SIMBOL, April 12, 2006 the course of their employment and then decided to get married, one of
WILFREDA N. COMIA & them should resign to preserve the policy stated above.[3]
LORNA E. ESTRELLA,
Respondents. Simbol resigned on June 20, 1998 pursuant to the company policy.[4]
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Comia was hired by the company on February 5, 1997. She met Howard Comia, a co-
employee, whom she married on June 1, 2000. Ongsitco likewise reminded them that
DECISION
pursuant to company policy, one must resign should they decide to get married. Comia
PUNO, J.: resigned on June 30, 2000.[5]
Estrella was hired on July 29, 1994. She met Luisito Zuiga (Zuiga), also a co-worker.
We are called to decide an issue of first impression: whether the policy of the employer Petitioners stated that Zuiga, a married man, got Estrella pregnant. The company
banning spouses from working in the same company violates the rights of the employee allegedly could have terminated her services due to immorality but she opted to resign
under the Constitution and the Labor Code or is a valid exercise of management on December 21, 1999.[6]
prerogative. The respondents each signed a Release and Confirmation Agreement. They stated
At bar is a Petition for Review on Certiorari of the Decision of the Court of therein that they have no money and property accountabilities in the company and that
Appeals dated August 3, 2004 in CA-G.R. SP No. 73477 reversing the decision of the they release the latter of any claim or demand of whatever nature.[7]
National Labor Relations Commission (NLRC) which affirmed the ruling of the Labor
Arbiter. Respondents offer a different version of their dismissal. Simbol and Comia allege that
Petitioner Star Paper Corporation (the company) is a corporation engaged in trading they did not resign voluntarily; they were compelled to resign in view of an illegal
principally of paper products. Josephine Ongsitco is its Manager of the Personnel and company policy. As to respondent Estrella, she alleges that she had a relationship with
Administration Department while Sebastian Chua is its Managing Director. co-worker Zuiga who misrepresented himself as a married but separated man. After he
got her pregnant, she discovered that he was not separated. Thus, she severed her
relationship with him to avoid dismissal due to the company policy. OnNovember 30,
1999, she met an accident and was advised by the doctor at the Orthopedic Hospital to
recuperate for twenty-one (21) days. She returned to work onDecember 21, 1999 but
she found out that her name was on-hold at the gate. She was denied entry. She was
directed to proceed to the personnel office where one of the staff handed her a
memorandum. The memorandum stated that she was being dismissed for immoral
conduct. She refused to sign the memorandum because she was on leave for twenty-one
(21) days and has not been given a chance to explain. The management asked her to
write an explanation. However, after submission of the explanation, she was nonetheless
dismissed by the company. Due to her urgent need for money, she later submitted a
letter of resignation in exchange for her thirteenth month pay.[8]
Respondents later filed a complaint for unfair labor practice, constructive dismissal,
separation pay and attorneys fees. They averred that the aforementioned company
policy is illegal and contravenes Article 136 of the Labor Code. They also contended that
they were dismissed due to their union membership.
On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for
lack of merit, viz.:
[T]his company policy was decreed pursuant to what the
respondent corporation perceived as management prerogative. This
management prerogative is quite broad and encompassing for it covers
hiring, work assignment, working method, time, place and manner of
work, tools to be used, processes to be followed, supervision of
workers, working regulations, transfer of employees, work supervision,
lay-off of workers and the discipline, dismissal and recall of workers.
Except as provided for or limited by special law, an employer is free to
regulate, according to his own discretion and judgment all the aspects
of employment.[9] (Citations omitted.)
On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter
on January 11, 2002. [10]
Respondents filed a Motion for Reconsideration but was denied by the NLRC in a
Resolution[11] dated August 8, 2002. They appealed to respondent court viaPetition for
Certiorari.
In its assailed Decision dated August 3, 2004, the Court of Appeals reversed the NLRC
decision, viz.:
WHEREFORE, premises considered, the May 31, 2002 (sic)[12] Decision
of the National Labor Relations Commission is hereby REVERSED and
SET ASIDE and a new one is entered as follows:
(1) Declaring illegal, the petitioners dismissal from
employment and ordering private respondents to
reinstate petitioners to their former positions without
loss of seniority rights with full backwages from the
time of their dismissal until actual reinstatement; and
(2) Ordering private respondents to pay petitioners
attorneys fees amounting to 10% of the award and the
cost of this suit.[13]
On appeal to this Court, petitioners contend that the Court of Appeals erred in holding
that:
1. X X X THE SUBJECT 1995 POLICY/REGULATION IS VIOLATIVE OF
THE CONSTITUTIONAL RIGHTS TOWARDS MARRIAGE AND THE
FAMILY OF EMPLOYEES AND OF ARTICLE 136 OF THE LABOR CODE;
AND
2. X X X RESPONDENTS RESIGNATIONS WERE FAR FROM
VOLUNTARY.[14]
We affirm.
The 1987 Constitution[15] states our policy towards the protection of labor
under the following provisions, viz.:
 Article II, Section 18. The State affirms labor as a primary social
economic force. It shall protect the rights of workers and promote their
welfare.
xxx
Article XIII, Sec. 3. The State shall afford full protection to labor, local
and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law. They
shall be entitled to security of tenure, humane conditions of work, and a
living wage. They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between
workers and employers, recognizing the right of labor to its just share
in the fruits of production and the right of enterprises to reasonable
returns on investments, and to expansion and growth.
The Civil Code likewise protects labor with the following provisions:
Art. 1700. The relation between capital and labor are not merely
contractual. They are so impressed with public interest that labor
contracts must yield to the common good. Therefore, such contracts are
subject to the special laws on labor unions, collective bargaining,
strikes and lockouts, closed shop, wages, working conditions, hours of
labor and similar subjects.
Art. 1702. In case of doubt, all labor legislation and all labor contracts
shall be construed in favor of the safety and decent living for the
laborer.
The Labor Code is the most comprehensive piece of legislation protecting labor. The
case at bar involves Article 136 of the Labor Code which provides:
Art. 136. It shall be unlawful for an employer to require as a condition
of employment or continuation of employment that a woman employee
shall not get married, or to stipulate expressly or tacitly that upon
getting married a woman employee shall be deemed resigned or
separated, or to actually dismiss, discharge, discriminate or otherwise
prejudice a woman employee merely by reason of her marriage.
Respondents submit that their dismissal violates the above provision. Petitioners allege
that its policy may appear to be contrary to Article 136 of the Labor Code but it assumes
a new meaning if read together with the first paragraph of the rule. The rule does not
require the woman employee to resign. The employee spouses have the right to choose
who between them should resign. Further, they are free to marry persons other than co-
employees. Hence, it is not the marital status of the employee,per se, that is being
discriminated. It is only intended to carry out its no-employment-for-relatives-within-
the-third-degree-policy which is within the ambit of the prerogatives of management.[16]
It is true that the policy of petitioners prohibiting close relatives from working in the
same company takes the nature of an anti-nepotism employment policy. Companies
adopt these policies to prevent the hiring of unqualified persons based on their status as
a relative, rather than upon their ability.[17] These policies focus upon the potential
employment problems arising from the perception of favoritism exhibited towards
relatives.
With more women entering the workforce, employers are also enacting employment
policies specifically prohibiting spouses from working for the same company. We note
that two types of employment policies involve spouses: policies banning only spouses
from working in the same company (no-spouse employment policies), and those
banning all immediate family members, including spouses, from working in the same
company (anti-nepotism employment policies).[18]
Unlike in our jurisdiction where there is no express prohibition on marital
discrimination,[19] there are twenty state statutes[20] in the United States prohibiting
marital discrimination. Some state courts[21] have been confronted with the issue of
whether no-spouse policies violate their laws prohibiting both marital status and sex
discrimination.
In challenging the anti-nepotism employment policies in the United States, complainants
utilize two theories of employment discrimination: the disparate treatment and
the disparate impact. Under the disparate treatment analysis, the plaintiff must
prove that an employment policy is discriminatory on its face. No-spouse employment
policies requiring an employee of a particular sex to either quit, transfer, or be fired are
facially discriminatory. For example, an employment policy prohibiting the employer
from hiring wives of male employees, but not husbands of female employees, is
discriminatory on its face.[22]
On the other hand, to establish disparate impact, the complainants must prove that a
facially neutral policy has a disproportionate effect on a particular class. For example,
although most employment policies do not expressly indicate which spouse will be
required to transfer or leave the company, the policy often disproportionately affects
one sex.[23]
The state courts rulings on the issue depend on their interpretation of the scope of
marital status discrimination within the meaning of their respective civil rights acts.
Though they agree that the term marital status encompasses discrimination based on a
person's status as either married, single, divorced, or widowed, they are divided on
whether the term has a broader meaning. Thus, their decisions vary.[24]
The courts narrowly[25] interpreting marital status to refer only to a person's status as
married, single, divorced, or widowed reason that if the legislature intended a broader
definition it would have either chosen different language or specified its intent. They
hold that the relevant inquiry is if one is married rather than to whom one is
married. They construe marital status discrimination to include only whether a person is
single, married, divorced, or widowed and not the identity, occupation, and place of
employment of one's spouse. These courts have upheld the questioned policies and
ruled that they did not violate the marital status discrimination provision of their
respective state statutes.
The courts that have broadly[26] construed the term marital status rule that it
encompassed the identity, occupation and employment of one's spouse. They strike
down the no-spouse employment policies based on the broad legislative intent of the
state statute. They reason that the no-spouse employment policy violate the marital
status provision because it arbitrarily discriminates against all spouses of present
employees without regard to the actual effect on the individual's qualifications or work
performance.[27] These courts also find the no-spouse employment policy invalid for
failure of the employer to present any evidence of business necessity other than the
general perception that spouses in the same workplace might adversely affect the
business.[28] They hold that the absence of such a bona fide occupational
qualification[29] invalidates a rule denying employment to one spouse due to the
current employment of the other spouse in the same office.[30] Thus, they rule that
unless the employer can prove that the reasonable demands of the business require a
distinction based on marital status and there is no better available or acceptable policy
which would better accomplish the business purpose, an employer may not discriminate
against an employee based on the identity of the employees spouse. [31]This is known as
the bona fide occupational qualification exception.
We note that since the finding of a bona fide occupational qualification justifies an
employers no-spouse rule, the exception is interpreted strictly and narrowly by these
state courts. There must be a compelling business necessity for which no alternative
exists other than the discriminatory practice.[32] To justify a bona fide occupational
qualification, the employer must prove two factors: (1) that the employment
qualification is reasonably related to the essential operation of the job involved; and, (2)
that there is a factual basis for believing that all or substantially all persons meeting the
qualification would be unable to properly perform the duties of the job.[33]
The concept of a bona fide occupational qualification is not foreign in our jurisdiction.
We employ the standard of reasonableness of the company policy which is parallel to
the bona fide occupational qualification requirement. In the recent case of Duncan
Association of Detailman-PTGWO and
Pedro Tecson v. GlaxoWellcome Philippines, Inc.,[34] we passed on the validity of the
policy of a pharmaceutical company prohibiting its employees from marrying employees
of any competitor company. We held that Glaxo has a right to guard its trade secrets,
manufacturing formulas, marketing strategies and other confidential programs and
information from competitors. We considered the prohibition against personal or
marital relationships with employees of competitor companies
upon Glaxosemployees reasonable under the circumstances because relationships of
that nature might compromise the interests of Glaxo. In laying down the assailed
company policy, we recognized that Glaxo only aims to protect its interests against the
possibility that a competitor company will gain access to its secrets and procedures. [35]
 The requirement that a company policy must be reasonable under the
circumstances to qualify as a valid exercise of management prerogative was also at issue
in the 1997 case of Philippine Telegraph and Telephone Company v. NLRC.[36] In said
case, the employee was dismissed in violation of petitioners policy of disqualifying from
work any woman worker who contracts marriage. We held that the company policy
violates the right against discrimination afforded all women workers under Article 136
of the Labor Code, but established a permissible exception, viz.:
[A] requirement that a woman employee must remain unmarried could
be justified as a bona fide occupational qualification, or BFOQ, where
the particular requirements of the job would justify the same, but not
on the ground of a general principle, such as the desirability of
spreading work in the workplace. A requirement of that nature would
be valid provided it reflects an inherent quality reasonably
necessary for satisfactory job performance.[37] (Emphases supplied.)
The cases of Duncan and PT&T instruct us that the requirement of
reasonableness must be clearly established to uphold the questioned employment
policy. The employer has the burden to prove the existence of a reasonable business
necessity. The burden was successfully discharged in Duncan but not in PT&T.
We do not find a reasonable business necessity in the case at bar.
Petitioners sole contention that the company did not just want to have two (2)
or more of its employees related between the third degree by affinity and/or
consanguinity[38] is lame. That the second paragraph was meant to give teeth to the first
paragraph of the questioned rule[39] is evidently not the valid reasonable business
necessity required by the law.
It is significant to note that in the case at bar, respondents were hired after they
were found fit for the job, but were asked to resign when they married a co-employee.
Petitioners failed to show how the marriage of Simbol, then a Sheeting Machine
Operator, to Alma Dayrit, then an employee of the Repacking Section, could be
detrimental to its business operations. Neither did petitioners explain how this
detriment will happen in the case of Wilfreda Comia, then a Production Helper in the
Selecting Department, who married Howard Comia, then a helper in the cutter-machine.
The policy is premised on the mere fear that employees married to each other will be
less efficient. If we uphold the questioned rule without valid justification, the employer
can create policies based on an unproven presumption of a perceived danger at the
expense of an employees right to security of tenure.
Petitioners contend that their policy will apply only when one employee
marries a co-employee, but they are free to marry persons other than co-employees. The
questioned policy may not facially violate Article 136 of the Labor Code but it creates a
disproportionate effect and under the disparate impact theory, the only way it could
pass judicial scrutiny is a showing that it is reasonable despite the discriminatory,
albeit disproportionate, effect. The failure of petitioners to prove a legitimate business
concern in imposing the questioned policy cannot prejudice the employees right to be
free from arbitrary discrimination based upon stereotypes of married persons working
together in one company.[40]
Lastly, the absence of a statute expressly prohibiting marital discrimination in
our jurisdiction cannot benefit the petitioners. The protection given to labor in our
jurisdiction is vast and extensive that we cannot prudently draw inferences from the
legislatures silence[41] that married persons are not protected under our Constitution
and declare valid a policy based on a prejudice or stereotype. Thus, for failure of
petitioners to present undisputed proof of a reasonable business necessity, we rule that
the questioned policy is an invalid exercise of management prerogative. Corollarily, the
issue as to whether respondents Simbol and Comia resigned voluntarily has become
moot and academic.
As to respondent Estrella, the Labor Arbiter and the NLRC based their ruling on
the singular fact that her resignation letter was written in her own handwriting. Both
ruled that her resignation was voluntary and thus valid. The respondent court failed to
categorically rule whether Estrella voluntarily resigned but ordered that she be
reinstated along with Simbol and Comia.
 Estrella claims that she was pressured to submit a resignation letter because
she was in dire need of money. We examined the records of the case and
findEstrellas contention to be more in accord with the evidence. While findings of fact by
administrative tribunals like the NLRC are generally given not only respect but, at times,
finality, this rule admits of exceptions,[42] as in the case at bar.
Estrella avers that she went back to work on December 21, 1999 but was
dismissed due to her alleged immoral conduct. At first, she did not want to sign the
termination papers but she was forced to tender her resignation letter in exchange for
her thirteenth month pay.
The contention of petitioners that Estrella was pressured to resign because she
got impregnated by a married man and she could not stand being looked upon or talked
about as immoral[43] is incredulous. If she really wanted to avoid embarrassment and
humiliation, she would not have gone back to work at all. Nor would she have filed a suit
for illegal dismissal and pleaded for reinstatement. We have held that in voluntary
resignation, the employee is compelled by personal reason(s) to dissociate himself from
employment. It is done with the intention of relinquishing an office, accompanied by the
act of abandonment. [44] Thus, it is illogical for Estrella to resign and then file a complaint
for illegal dismissal. Given the lack of sufficient evidence on the part of petitioners that
the resignation was voluntary, Estrellasdismissal is declared illegal.
IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No.
73477 dated August 3, 2004 is AFFIRMED.

SO ORDERED.