Coming to work under the influence of intoxicating liquor or any drug or drinking any alcoholic beverages on the premises on company time.
There is no doubt that the hostile attitude of the management to its workers and vice versa started when the workers began organizing themselves into a union. As soon as the management learned and received summons regarding the petition for certification election filed by the employees, they retaliated by causing the employees to submit themselves to drug test. And out of the seven who were found positive, five were placed on a 12 day suspension namely: (1) Froilan Madamba; (2) Arnold Rodriguez; (3) Roberto Caldeo; (4) Roger Belatcha; and (5) Ruperto Mariano.
This is illegal suspension plain and simple. Even if they were found positive for drugs, they should have been caused to explain why they were found so. It could have been that they have taken drugs as cure for ailment under a physician's prescription and supervision. Doubts should be in favor of the working class in the absence of evidence that they are drug addicts or they took prohibited or regulated drugs without any justifiable reason at all. In fact, there is not even a showing by the company that the performance of these employees was already adversely affected by their use of drugs.
Lest be misunderstood that we are considering use of prohibited drug or regulated drugs, what we abhor is suspension without valid cause and without due process. 4
x x x Firstly, the employer has not even established that the five employees are sick of ailments which are not curable within six months, a burden which rests upon the employers and granting that they were sick or drug addicts, the remedy is not dismissal but to allow them to be on sick leave and be treated of their illness and if not cured within 6 months, that is the time that they may be separated from employment but after payment of ½ month's salary for every year of service by way of separation pay. 5
ARGUMENTS
PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN HOLDING THAT THERE ARE ONLY THREE (3) REMAINING COMPLAINANTS IN THE CASE FILED BY THE PETITIONERS.
PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN HOLDING THAT THE SUSPENSION OF SEVERAL PETITIONERS WAS VALID DESPITE THE ABSENCE OF DUE PROCESS.
PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN SUSTAINING THE VALIDITY OF THE DISMISSAL OF EMPLOYEES WHO TESTED POSITIVE DURING THE DRUG TEST.
PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN ABSOLVING PRIVATE RESPONDENTS OF THE OFFENSE OF UNFAIR LABOR PRACICE.
PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN DISMISSING PETITIONERS' COMPLAINT FOR ILLEGAL DISMISSAL.
WHEREFORE, premises considered, the petition is GRANTED. Respondents are hereby directed to reinstate the petitioners effective immediately but without backwages, except those who were tested positive for illegal drugs and have failed to submit their respective medical certificates.
SO ORDERED. 10
The petitioners themselves have admitted that all of them were ordered to give their urine samples for the drug test; that the drug test was applicable to all the employees lends credence that such test was not related to any union activity. The union members were not singled out for said drug testing.
The complainants who tested positive for illegal drugs were validly suspended under the company rules. The Employee's Handbook of Company Rules and Regulations prohibit employees from reporting for work under the influence of intoxicating liquor and drugs.
With the finding that the petitioners tested positive for illegal drugs, AER merely exercised their management prerogative to require a medical certificate that said employees were already fit to work before they can be admitted back to work.
Due to the failure of the affected petitioners to submit a medical certificate that they are already fit to work, they were dismissed. Petitioners' act of not reporting for duty upon presentation of the medical certificate that they are fit to work as per agreement with the DOLE NCMB on January 25, 1999 had the marks of willful disobedience giving AER the right to terminate employment. 11
WHEREFORE, the partial motion for reconsideration is GRANTED insofar as the reinstatement of the suspended employees is concerned. This Court's decision dated June 27, 2003 is hereby MODIFIED. Private respondents are hereby directed to reinstate all the petitioners immediately without backwages.
SO ORDERED. 12
GROUNDS
FOR UNYON:
THE COURT OF APPEALS LEGALLY ERRED IN NOT AWARDING BACKWAGES TO INDIVIDUAL PETITIONERS NOTWITHSTANDING HAVING ORDERED THEIR REINSTATEMENT TO THEIR PREVIOUS POSITIONS.
FOR AER:
THE HONORABLE COURT OF APPEALS ERRED GRIEVOUSLY WHEN IT GAVE SO MUCH WEIGHT ON THE PRIVATE RESPONDENTS' PARTIAL MOTION FOR RECONSIDERATION BY AMENDING ITS DECISION IN ORDERING THEIR IMMEDIATE REINSTATEMENT INCLUDING THOSE WHO HAVE TESTED POSITIVE FOR ILLEGAL DRUGS (DRUG ADDICTS) AND HAVE FAILED TO SUBMIT ANY MEDICAL CERTIFICATE.
The number of parties to a complaint corresponds to the number of signatories thereto and not necessarily to the names commonly appearing or identified in the position paper. All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. 14
Contrary to Sulpicio Lines' allegation, Nacague was already questioning the credibility of S.M. Lazo Clinic as early as the proceedings before the Labor Arbiter. In fact, the Labor Arbiter declared that the S.M. Lazo Clinic drug test result was doubtful since it is not under the supervision of the Dangerous Drug Board.
The NLRC and the Court of Appeals ruled that Sulpicio Lines validly terminated Nacague's employment because he was found guilty of using illegal drugs which constitutes serious misconduct and loss of trust and confidence. However, we find that Sulpicio Lines failed to clearly show that Nacague was guilty of using illegal drugs. We agree with the Labor Arbiter that the lack of accreditation of S.M. Lazo Clinic made its drug test results doubtful.
Section 36 of R.A. No. 9165 provides that drug tests shall be performed only by authorized drug testing centers. Moreover, Section 36 also prescribes that drug testing shall consist of both the screening test and the confirmatory test. Section 36 of R.A. No. 9165 reads:
SEC. 36. Authorized Drug Testing. Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of test results. The DOH shall take steps in setting the price of the drug test with DOH accredited drug testing centers to further reduce the cost of such drug test. The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x (Emphases supplied)
Department Order No. 53-03 further provides:
Drug Testing Program for Officers and Employees
Drug testing shall conform with the procedures as prescribed by the Department of Health (DOH) (www.doh.gov.ph). Only drug testing centers accredited by the DOH shall be utilized. A list of accredited centers may be accessed through the OSHC website (www.oshc.dole.gov.ph).
Drug testing shall consist of both the screening test and the confirmatory test; the latter to be carried out should the screening test turn positive. The employee concerned must be informed of the test results whether positive or negative.
As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the tests shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.
The law is clear that drug tests shall be performed only by authorized drug testing centers. In this case, Sulpicio Lines failed to prove that S.M. Lazo Clinic is an accredited drug testing center. Sulpicio Lines did not even deny Nacague's allegation that S.M. Lazo Clinic was not accredited. Also, only a screening test was conducted to determine if Nacague was guilty of using illegal drugs. Sulpicio Lines did not confirm the positive result of the screening test with a confirmatory test. Sulpicio Lines failed to indubitably prove that Nacague was guilty of using illegal drugs amounting to serious misconduct and loss of trust and confidence. Sulpicio Lines failed to clearly show that it had a valid and legal cause for terminating Nacague's employment. When the alleged valid cause for the termination of employment is not clearly proven, as in this case, the law considers the matter a case of illegal dismissal. (Emphases supplied)
Neither respondent commission's decision nor the labor arbiter's decision as affirmed with modification by it cites any substantial facts or evidence to warrant the terribly harsh imposition of the capital penalty of dismissal and forfeiture of employment on twenty-two of forty-four workers for having staged the so-called one-day (more accurately, a one-morning) "sitdown strike" on August 19, 1980 to inform respondent employer of their having formed their own union and to present their just requests for allowances, overtime pay and service incentive leave pay. Prescinding from respondent commission's misappreciation of the facts and evidence and accepting for the nonce its factual conclusion that the petitioners staged a one-morning sit-down strike instead of making a mass representation for the employer to recognize their newly formed union and negotiate their demands, respondent commission's decision is not in consonance with the constitutional injunction that the Court has invariably invoked and applied to afford protection to labor and assure the workers' rights to self-organiza-tion, collective bargaining, security of tenure and just and humane conditions of work. The said decision likewise is not in accordance with settled and authoritative doctrine and legal principles that a mere finding of the ille-gality of a strike does not automatically warrant a wholesale dismissal of the strikers from their employment and that a premature or improvident strike should not be visited with a consequence so severe as dismissal where a penalty less punitive would suffice. Numerous precedents to this effect have been cited and reaffirmed x x x.It must also be noted that there were no injuries during the brief walkout. Neither was there proof that the striking workers inflicted harm or violence upon the other employees. In fact, the Police Memorandum 18 dated January 29, 1999 reported no violent incidents and stated that all parties involved in the January 28, 1999 incident were allowed to go home and the employees involved were just given a stern warning.
x x x x.
In the analogous case of PBM Employees Organization vs. PBM Co., Inc., 17 10/ the Court, in setting aside the questioned industrial court's or-ders held that "the dismissal or termination of the employment of the peti-tioning eight (8) leaders of the union is harsh for a one-day absence from work." They had been ordered dismissed for having carried out a mass demonstration at Malacañang on March 4, 1969 in protest against alleged abuses of the Pasig police department, upon two days' prior notice to res-pondent employer company, as against the latter's insistence that the first shift should not participate but instead report for work, under pain of dis-missal. The Court held that they were merely exercising their basic human rights and fighting for their very survival "in seeking sanctuary behind their freedom of expression as well as their right of assembly and of petition against alleged persecution of local officialdom." We ruled that "(T)he appropriate penalty - if it deserves any penalty at all - should have been simply to charge said one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a most cruel penalty, since as aforestated the Union leaders depend on their wages for their daily sustenance as well as that of their respective families aside from the fact that it is a lethal blow to unionism, while at the same time strengthening the oppressive hand of the petty tyrants in the localities." [Emphases supplied].
The Solicitor General has correctly stated in his comment that "from these facts are derived the following conclusions which are likewise undisputed: that petitioner engaged in an illegal lockout while the NAFLU engaged in an illegal strike; that the unconditional offer of the 150 striking employees to return to work and to withdraw their complaint of illegal lockout against petitioner constitutes condonation of the illegal lock-out; and that the unqualified acceptance of the offer of the 150 striking employees by petitioner likewise constitutes condonation of the illegal strike insofar as the reinstated employees are concerned."
The issues at bar arise, however, from respondent commission's approval of its commissioner's conclusions that (1) petitioner must be deemed to have waived its right to pursue the case of illegal strike against the 114 employees who were not reinstated and who pursued their illegal lockout claim against petitioner; and (2) the said 114 employees are entitled to reinstatement with three months' backwages.
The Court approves the stand taken by the Solicitor General that there was no clear and unequivocal waiver on the part of petitioner and on the contrary the record shows that it tenaciously pursued its application for their dismissal, but nevertheless in view of the undisputed findings of illegal strike on the part of the 114 employees and illegal lockout on petitioner's part, both parties are in pari delicto and such situation warrants the restoration of the status quo ante and bringing the parties back to the respective positions before the illegal strike and illegal lockout through the reinstatement of the said 114 employees, as follows:The Bisaya case (102 Phil. 438) is inapplicable to the present case, because in the former, there were only two strikers involved who were both reinstated by their employer upon their request to return to work. However, in the present case, there were more than 200 strikers involved, of which 150 who desired to return to work were reinstated. The rest were not reinstated because they did not signify their intention to return to work. Thus, the ruling cited in the Bisaya case that the employer waives his defense of illegality of the strike upon reinstatement of strikers is applicable only to strikers who signified their intention to return to work and were accepted back ...
Truly, it is more logical and reasonable for condonation to apply only to strikers who signified their intention to return and did return to work. The reason is obvious. These strikers took the initiative in normalizing relations with their employer and thus helped promote industrial peace. However, as regards the strikers who decided to pursue with the case, as in the case of the 114 strikers herein, the employer could not be deemed to have condoned their strike, because they had not shown any willingness to normalize relations with it. So, if petitioner really had any intention to pardon the 114 strikers, it would have included them in its motion to withdraw on November 17, 1980. The fact that it did not, but instead continued to pursue the case to the end, simply means that it did not pardon the 114 strikers.
xxx xxx xxx
The finding of illegal strike was not disputed. Therefore, the 114 strikers employees who participated therein are liable for termination (Liberal Labor Union v. Phil. Can Co., 91 Phil. 72; Insurefco Employees Union v. Insurefco, 95 Phil. 761). On the other hard, the finding of illegal lockout was likewise not disputed. Therefore, the 114 employees affected by the lockout are also subject to reinstatement. Petitioner, however, contends that the application for readmission to work by the 150 strikers constitutes condonation of the lockout which should likewise bind the 114 remaining strikers. Suffice it to say that the 150 strikers acted for themselves, not on behalf of the 114 remaining strikers, and therefore the latter could not be deemed to have condoned petitioner's lockout.
The findings show that both petitioner and the 114 strikers are in pari delicto, a situation which warrants the maintenance of the status quo. This means that the contending parties must be brought back to their respective positions before the controversy; that is, before the strike. Therefore, the order reinstating the 114 employees is proper.
With such restoration of the status quo ante it necessarily follows, as likewise submitted by the Solicitor General, that the petition must be granted insofar as it seeks the setting aside of the award of three months' backwages to the 114 employees ordered reinstated on the basis of the general rule that strikers are not entitled to backwages (with some exceptions not herein applicable, such as where the employer is guilty of oppression and union-busting activities and strikers ordered reinstated are denied such reinstatement and therefore are declared entitled to backwages from the date of such denial). More so, is the principle of "no work, no pay" applicable to the case at bar, in view of the undisputed finding of illegality of the strike.
3) Petitioner substantially complied with the Return to Work Order. The medical examination, NBI, Police and Barangay Clearances as well as the driver's and conductor's/conductress licenses and photographs required as conditions for reinstatement were reasonable management prerogatives. However, the other requirements imposed as condition for reinstatement were unreasonable considering that the employees were not being hired for the first time, although the imposition of such requirements did not amount to refusal on the part of the employer to comply with the Return to Work Order or constitute illegal lockout so as to warrant payment of backwages to the strikers. If at all, it is the employees' refusal to return to work that may be deemed a refusal to comply with the Return to Work Order resulting in loss of their employment status. As both the employer and the employees were, in a sense, at fault or in pari delicto, the nonreturning employees, provided they did not participate in illegal acts; should be considered entitled to reinstatement. But since reinstatement is no longer feasible, they should be given separation pay computed up to March 8, 1988 (the date set for the return of the employees) in lieu of reinstatement. [Emphases and underscoring supplied]In the case at bar, since both AER and the union are at fault or in pari delicto, they should be restored to their respective positions prior to the illegal strike and illegal lockout. Nonetheless, if reinstatement is no longer feasible, the concerned employees should be given separation pay up to the date set for the return of the complaining employees in lieu of reinstatement.
Endnotes:
* Designated as additional member in lieu of Associate Justice Diosdado M. Peralta per Special Order No. 1029 dated June 30, 2011.
** Designated as additional member of the Third Division per Special Order No. 1028 dated June 21, 2011.
1 Rollo (G.R. No. 160138), pp. 49-50. Penned by Associate Justice Eliezer R. De Los Santos with Associate Justice Romeo A. Brawner and Associate Justice Regalado E. Maambong, concurring.
2 Id. at 103-108.
3 Id. (G.R. No. 160192), pp. 69-73.
4 Id. at 71-72.
5 Id. at 72-73.
6 Id. at 74-79.
7 Id. at. 80-92.
8 Id. at 93-100.
9 Id. at 24-32.
10 Id. at 31-32.
11 Id. at 29-30.
12 Id. at 34.
13 Id. at 115-120.
14 Section 6, Rule 3, Revised Rules of Court.
15 G.R. No. 172589, August 8, 2010, 627 SCRA 254.
16 224 Phil. 26 (1985).
18 Rollo (G.R. No. 160138), pp. 51-52.
19 Id. at 62-63.
20 203 Phil. 23 (1982).
21 338 Phil. 635 (1997).