May employees be legally dismissed due to disease?

WHAT MATTERS MOST - Atty. Josephus Jimenez (The Freeman) - March 18, 2021 - 12:00am

In these times of COVID-19 pandemic, many employees have died or been sick for a long time due to the coronavirus. Many employers have consulted me whether or not our labor laws would allow companies to terminate the services of sick employees based on just or authorized under the Labor Code. A number of employees, who were dismissed based on their ailments, have also asked me to help them file their cases of illegal dismissal. And so, may an employee be legally dismissed due to disease?

As an accredited voluntary arbitrator, I also hear and decide labor disputes involving termination of employees based on disease. I am teaching future lawyers in three universities on the law and jurisprudence involving termination of employment based on multiple causes. I am also giving hundreds, even thousands of webinars via digital platforms attended by company owners, business managers and HR professionals. It is important thus that we should all know about the law and jurisprudence on the matter. Under Philippine labor laws, the relationship between employers and employees may be broken either by termination, resignation, abandonment or death. Termination is of two kinds: dismissal based on the fault of employees or separation based on economic or financial reasons. Dismissal is based on just causes under Article 297 of the Labor Code, like serious misconduct, insubordination, fraud or breach of trust, crimes or gross negligence, Separation is based on authorized causes.

Under Article 299 (formerly Article 284), an employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees; provided that he is paid separation pay equivalent to at least one month salary or to one-half month for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one year. This law had been interpreted by the Supreme Court on November 4, 2020, or just less than five months ago in the case of Omanfil International Development Corporation et al vs Rolando B Mesina (GR 217169). This is about R Mesina, an OFW who was deployed to Dammam, Kingdom of Saudi Arabia. After nine months of working, he experienced chest pains. He was confined and diagnosed with heart disease. Then he was sent back to the Philippines.

Mesina requested Omanfil to shoulder the cost of his cardiac operation estimated to cost half a million pesos. But he was told that he would be entitled to it only during the period of his employment but he was already dismissed earlier. He filed a case of illegal dismissal. On December 21, 2007, the arbiter dismissed the case of illegal dismissal but ordered Omanfil to pay four thousand Arabian riyals. On May 29, 2009, the NLRC dismissed Mesina's appeal. On March 11, 2014, the Court of Appeals reversed both the Labor Arbiter and the NLRC, ruling that Mesina was illegally dismissed because his contract was pre-terminated and he was repatriated back to the Philippines without any just or authorized cause. The appellate court disagreed with the NLRC and declared that the company pre-terminated Mesina's employment without any showing that his disease had been a prolonged one, or that such disease was bound to be permanent,

The Court of Appeals held that the company failed to prove through the required certification from a competent public authority that Mesina's disease was of such nature or was at such stage that the disease could not be cured within six (6) months even after proper medical treatment, or that Mesina's continued employment was prejudicial or to his health or to the health of his co-employees. The Supreme Court affirmed the Court of Appeals, declaring: “In a bundle of cases, we have held that a dismissal based on disease, to be considered valid, two requisites must concur: (a) the employee suffers from a disease which cannot be cured within six months and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees, and (b) a certification to that effect must be issued by a competent public health authority.”

Therefore, based on the provision of law and the force of cases decided by the Supreme Court, employers should not be reckless in terminating the employment of employees based on disease, as provided by law.

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