G.R. NO.

153477 March 6, 2007

DEL MONTE PHILIPPINES, INC., Petitioner,

vs.
LOLITA VELASCO, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Certiorari under Rule 45 seeking to reverse and set
aside the Decision1 dated July 23, 2001 of the Court of Appeals (CA) in CA-G.R. SP No.
56571 which affirmed the Decision dated May 27, 1999 of the National Labor Relations
Commission (NLRC); and the CA Resolution2 dated May 7, 2002 which denied the
petitioner's Motion for Reconsideration.

The facts of the case, as stated by the CA, are as follows:

Lolita M. Velasco (respondent) started working with Del Monte Philippines (petitioner) on
October 21, 1976 as a seasonal employee and was regularized on May 1, 1977. Her
latest assignment was as Field Laborer.

On June 16, 1987, respondent was warned in writing due to her absences. On May 4,
1991, respondent, thru a letter, was again warned in writing by petitioner about her
absences without permission and a forfeiture of her vacation leave entitlement for the year
1990-1991 was imposed against her.

On September 14, 1992, another warning letter was sent to respondent regarding her
absences without permission during the year 1991-1992. Her vacation entitlement for the
said employment year affected was consequently forfeited.

In view of the said alleged absences without permission, on September 17, 1994, a notice
of hearing was sent to respondent notifying her of the charges filed against her for
violating the Absence Without Official Leave rule: that is for excessive absence without
permission on August 15-18, 29-31 and September 1-10, 1994. The hearing was set on
September 23, 1994.

Respondent having failed to appear on September 23, 1994 hearing, another notice of
hearing was sent to her resetting the investigation on September 30, 1994. It was again
reset to October 5, 1994.

On January 10, 1995, after hearing, the petitioner terminated the services of respondent
effective January 16, 1994 due to excessive absences without permission.

Feeling aggrieved, respondent filed a case for illegal dismissal against petitioner asserting
that her dismissal was illegal because she was on the family way suffering from urinary
tract infection, a pregnancy-borne, at the time she committed the alleged absences. She
explained that for her absence from work on August 15, 16, 17 & 18, 1994 she had sent
an application for leave to her supervisor, Prima Ybañez. Thereafter, she went to the
company hospital for check-up and was advised accordingly to rest in quarters for four (4)
days or on August 27 to 30, 1994. Still not feeling well, she failed to work on September 1,
1994 and was again advised two days of rest in quarters on September 2-3, 1994. Unable
to recover, she went to see an outside doctor, Dr. Marilyn Casino, and the latter ordered
her to rest for another five (5) consecutive days, or from September 5 to 9, 1994. She
declared she did not file the adequate leave of absence because a medical certificate was
already sufficient per company policy. On September 10, 1994 she failed to report to work
but sent an application for leave of absence to her supervisor, Prima Ybañez, which was
not anymore accepted.3

On April 13, 1998, the Labor Arbiter dismissed the Complaint for lack of merit. The Labor
Arbiter held that the respondent was an incorrigible absentee; that she failed to file leaves
of absence; that her absences in 1986 and 1987 were without permission; that the
petitioner gave the respondent several chances to reform herself; and that the respondent
did not justify her failure to appear during the scheduled hearings and failed to explain her
absences.

Respondent appealed to the NLRC. On May 29, 1999, the NLRC issued its Resolution,
the dispositive portion of which reads:

WHEREFORE, foregoing considered, the instant decision is hereby VACATED and a new
one entered declaring the dismissal of complainant as ILLEGAL. In consonance with Art.
279 of the Labor [Code], her reinstatement with full backwages from the date of her
termination from employment to her actual reinstatement is necessarily decreed.4

The NLRC held that, under the company rules, the employee may make a subsequent
justification of her absenteeism, which she was able to do in the instant case; that while it
is not disputed that the respondent incurred absences exceeding six (6) days within one
employment year – a ground for dismissal under the company rules – the petitioner
actually admitted the fact that the respondent had been pregnant, hence, negating
petitioner’s assertion that the respondent failed to give any explanation of her absences;
that the records bear the admission of petitioner’s officer of the receipt of the hospital
record showing the cause of her absences ("RIQ advice" or "rest-in-quarters") for August
19-20, 1994 which, in turn, could already serve as reference in resolving the absences on
August 15 to 18; that the petitioner further admitted that the respondent was under "RIQ
advice" on September 2-3, 1994 and yet insisted in including these dates among
respondent’s 16 purported unexplained absences; that it is sufficient notice for the
petitioner, "a plain laborer" with "unsophisticated judgment," to send word to her employer
through a co-worker on August 15 to 16, 1994 that she was frequently vomiting; that the
sheer distance between respondent’s home and her workplace made it difficult to send
formal notice; that respondent even sent her child of tender age to inform her supervisor
about her absence on September 5, 1994 due to stomach ache, but her child failed to
approach the officer because her child felt ashamed, if not mortified; that respondent’s
narration that she had to bear pains during her absences on September 21 to 27, 1994 is
credible; that she dared not venture through the roads for fear of forest creatures or
predators; that the petitioner is guilty of unlawfully discharging respondent on account of
her pregnancy under Article 137(2) of the Labor Code; and, that petitioner’s reference to
the previous absenteeism of respondent is misplaced because the latter had already been
penalized therefor.

Petitioner’s Motion for Reconsideration was denied on September 30, 1999.

The petitioner then appealed to the CA. On July 23, 2001, the CA promulgated its
Decision the dispositive portion of which states:
VIEWED IN THE LIGHT OF ALL THE FOREGOING, the instant petition is DISMISSED,
the Resolutions, dated May 27, 1999 and September 30, 1999 of the National Labor
Relations Commission in NLRC CA No. M-003926-98, are hereby AFFIRMED in toto.

SO ORDERED.5

In affirming the NLRC, the CA held that absences due to a justified cause cannot be a
ground for dismissal; that it is undisputed that the respondent was pregnant at the time
she incurred the absences in question; that the certification issued by a private doctor duly
established this fact; that it was no less than petitioner’s company doctor who advised the
respondent to have rest-in-quarters for four days on account of a pregnancy- related
sickness; that it had been duly established that respondent filed leaves of absence though
the last had been refused by the company supervisor; that the dismissal of an employee
due to prolonged absence with leave by reason of illness duly established by the
presentation of a medical certificate is not justified; that it is undisputed that respondent’s
sickness was pregnancy-related; that under Article 137(2) of the Labor Code, the
petitioner committed a prohibited act in discharging a woman on account of her
pregnancy.

On May 7, 2002, the CA denied petitioner’s Motion for Reconsideration.

Hence, the instant Petition raising the following issues:

I.

The court of appeals seriously erred In considering respondent’s

Excessive aWOPs as justified Simply on account of her pregnancy.

II.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT

CONSIDERING THAT RESPONDENT’S LATEST STRING OF
ABSENCES INCURRED WITHOUT ANY PRIOR PERMISSION, AND AS
ABOVE SHOWN, WITHOUT ANY VALID JUSTIFICATION, TAKEN
TOGETHER WITH HER DAMAGING awop history, established her gross
and habitual neGlect of duties, a just and valid ground for dismissal.

III.

The court of appeals seriously erred in holding that respondent’s dismissal

was in violation of article 137 (prohibiting an employer to discharge an
employee on account of her pregnancy).

IV.

The court of appeals seriously erred in awarding full backwages in favor of

respondent notwithstanding petitioner’s evident good faith.6

The essential question is whether the employment of respondent had been validly
terminated on the ground of excessive absences without permission. Corollary to this is
the question of whether the petitioner discharged the respondent on account of pregnancy,
a prohibited act.
The petitioner posits the following arguments: (a) The evidence proffered by the
respondent, to wit: (1) the Discharge Summary indicating that she had been admitted to
the Phillips Memorial Hospital on August 23, 1994 and discharged on August 26, 1994,
and that she had been advised to "rest in quarters" for four days from August 27, 1994 to
August 30, 1994, and (2) the Medical Certificate issued by Dr. Marilyn M. Casino stating
that respondent had sought consultation on September 4, 2002 because of spasm in the
left iliac region, and was advised to rest for five days (from September 4, 1994 up to
September 8, 1994), due to urinary tract infection, all in all establish respondent’s
sickness only from August 23, 1994 up to August 30, 1994 and from September 4, 1994
up to September 8, 1994. In other words, respondent was absent without permission on
several other days which were not supported by any other proof of illness, specifically, on
August 15, 16, 17, 18, 31, 1994 and September 1, 2, 3, 9, and 10, 1994, and, hence, she
is guilty of ten unjustified absences; (b) Per Filflex Industrial and Manufacturing Co. v.
National Labor Relations Commission (Filflex),7 if the medical certificate fails to refer to
the specific period of the employee’s absence, then such absences, attributable to chronic
asthmatic bronchitis, are not supported by competent proof and, hence, they are
unjustified. By parity of reasoning, in the absence of evidence indicating any
pregnancy-borne illness outside the period stated in respondent’s medical certificate,
such illness ought not to be considered as an acceptable excuse for respondent’s
excessive absences without leave; (c) Respondent’s latest string of absences, taken
together with her long history of absenteeism without permission, established her gross
and habitual neglect of duties, as established by jurisprudence; (d) The respondent was
dismissed not by reason of her pregnancy but on account of her gross and habitual
neglect of duties. In other words, her pregnancy had no bearing on the decision to
terminate her employment; and, (e) Her state of pregnancy per se could not excuse her
from filing prior notice for her absence.

Petitioner’s arguments are without merit.

First. The Filflex Industrial and Manufacturing Co. case is not applicable, principally
because the nature and gravity of the illness involved in that case – chronic asthmatic
bronchitis – are different from the conditions that are present in the instant case, which is
pregnancy and its related illnesses.

The Court takes judicial notice of the fact that the condition of asthmatic bronchitis may be
intermittent, in contrast to pregnancy which is a continuing condition accompanied by
various symptoms and related illnesses. Hence, as to the former, if the medical certificate
or other proof proffered by the worker fails to correspond with the dates of absence, then it
can be reasonably concluded that, absent any other proof, such absences are unjustified.
This is the ruling in Filflex which cannot be applied in a straight-hand fashion in cases of
pregnancy which is a long-term condition accompanied by an assortment of related
illnesses.

In this case, by the measure of substantial evidence, what is controlling is the finding of
the NLRC and the CA that respondent was pregnant and suffered from related ailments. It
would be unreasonable to isolate such condition strictly to the dates stated in the Medical
Certificate or the Discharge Summary. It can be safely assumed that the absences that
are not covered by, but which nonetheless approximate, the dates stated in the Discharge
Summary and Medical Certificate, are due to the continuing condition of pregnancy and
related illnesses, and, hence, are justified absences.

As the CA and the NLRC correctly noted, it is not disputed that respondent was pregnant
and that she was suffering from urinary tract infection, and that her absences were due to
such facts. The petitioner admits these facts in its Petition for Review.8 And, as the CA
aptly held, it was no less than the company doctor who advised the respondent to have
"rest-in-quarters" for four days on account of a pregnancy-related sickness.9

On this note, this Court upholds and adopts the finding of the NLRC, thus:

In this jurisdiction tardiness and absenteeism, like abandonment, are recognized forms of
neglect of duties, the existence of which justify the dismissal of the erring employee.
Respondent’s rule penalizing with discharge any employee who has incurred six (6) or
more absences without permission or subsequent justification is admittedly within the
purview of the foregoing standard.

However, while it is not disputed that complainant incurred absences exceeding six (6)
days as she actually failed to report for work from August 15-18, 23-26, 29-31, September
1-3, 5-10, 12-17, 21-24, 26-30, and October 1-3, 1994, her being pregnant at the time
these absences were incurred is not questioned and is even admitted by
respondent. It thus puzzles us why respondent asserts complainant failed to explain
satisfactorily her absences on August 15-18, 29-31, September 1-3 and 5-10, 1994, yet
reconsidered the rest of her absences for being covered with "rest-in-quarters" (RIQ)
advice from its hospital personnel when this advice was unquestionably issued in
consideration of the physiological and emotional changes complainant, a conceiving
mother, naturally developed. Medical and health reports abundantly disclose that
during the first trimester of pregnancy, expectant mothers are plagued with
morning sickness, frequent urination, vomiting and fatigue all of which
complainant was similarly plagued with. Union official IBB Lesna’s observation on
complainant being [sic] apparently not feeling well during the investigation
conducted by respondent on October 5, 1994 even remains in the records of said
proceedings. For respondent to isolate the absences of complainant in August and
mid-September, 1994 from the absences she incurred later in said month without
submitting any evidence that these were due to causes not in manner associated
with her [ ] condition renders its justification of complainant’s dismissal clearly not
convincing under the circumstances.

Despite contrary declaration, the records bear the admission of respondent’s P/A
North Supervisor, PB Ybanez, of her receipt of the hospital record showing
complainant’s RIQ advice for August 19-20, 1994 which could already serve as
respondent’s reference in resolving the latter’s absences on August 15 to 18, 1994.
Respondent further admitted complainant was under RIQ advice on September 2-3,
1994, yet, insisted in including these dates among her 16 purported unexplained
absences justifying termination of her employment.10 (emphasis supplied)

Petitioner’s contention that the cause for the dismissal was gross and habitual neglect
unrelated to her state of pregnancy is unpersuasive.

The Court agrees with the CA in concluding that respondent’s sickness was
pregnancy-related and, therefore, the petitioner cannot terminate respondent’s services
because in doing so, petitioner will, in effect, be violating the Labor Code which prohibits
an employer to discharge an employee on account of the latter’s pregnancy.11

Article 137 of the Labor Code provides:

Art. 137. Prohibited acts. – It shall be unlawful for any employer:

(1) To deny any woman employee the benefits provided for in this Chapter or to discharge
any woman employed by him for the purpose of preventing her from enjoying any of the
benefits provided under this Code;

(2) To discharge such woman on account of her pregnancy, while on leave or in

confinement due to her pregnancy; or

(3) To discharge or refuse the admission of such woman upon returning to her work for
fear that she may again be pregnant. (Emphasis supplied)

Second. The petitioner stresses that many women go through pregnancy and yet manage
to submit prior notices to their employer, especially if "there is no evidence on record
indicating a condition of such gravity as to preclude efforts at notifying petitioner of her
absence from work in series."12 But it must be emphasized that under petitioner’s
company rules, absences may be subsequently justified.13 The Court finds no cogent
reason to disturb the findings of the NLRC and the CA that the respondent was able to
subsequently justify her absences in accordance with company rules and policy; that the
respondent was pregnant at the time she incurred the absences; that this fact of
pregnancy and its related illnesses had been duly proven through substantial evidence;
that the respondent attempted to file leaves of absence but the petitioner’s supervisor
refused to receive them; that she could not have filed prior leaves due to her continuing
condition; and that the petitioner, in the last analysis, dismissed the respondent on
account of her pregnancy, a prohibited act.

Third. Petitioner’s reliance on the jurisprudential rule that the totality of the infractions of
an employee may be taken into account to justify the dismissal, is tenuous considering the
particular circumstances obtaining in the present case. Petitioner puts much emphasis on
respondent’s "long history" of unauthorized absences committed several years
beforehand. However, petitioner cannot use these previous infractions to lay down a
pattern of absenteeism or habitual disregard of company rules to justify the dismissal of
respondent. The undeniable fact is that during her complained absences in 1994,
respondent was pregnant and suffered related illnesses. Again, it must be stressed that
respondent’s discharge by reason of absences caused by her pregnancy is covered by
the prohibition under the Labor Code. Since her last string of absences is justifiable and
had been subsequently explained, the petitioner had no legal basis in considering these
absences together with her prior infractions as gross and habitual neglect.

The Court is convinced that the petitioner terminated the services of respondent on
account of her pregnancy which justified her absences and, thus, committed a prohibited
act rendering the dismissal illegal.

In fine, the Court finds no cogent reason to disturb the findings of the CA and the NLRC.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated July 23, 2001
and the Resolution dated May 7, 2002 of the Court of Appeals are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.