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Supreme Court of the Philippines

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645 Phil. 503

THIRD DIVISION
G.R. No. 160302, September 27, 2010
DANILO ESCARIO, PANFILO AGAO, ARSENIO AMADOR,
ELMER COLICO, ROMANO DELUMEN, DOMINADOR
AGUILO, OLYMPIO GOLOSINO, RICARDO LABAN,
LORETO MORATA, ROBERTO TIGUE, GILBERT VIBAR,
THOMAS MANCILLA, JR., NESTOR LASTIMOSO, JIMMY
MIRABALLES, JAILE OLISA, ISIDRO SANCHEZ,
ANTONIO SARCIA, OSCAR CONTRERAS, ROMEO
ZAMORA, MARIANO GAGAL, ROBERTO MARTIZANO,
DOMINGO SANTILLICES, ARIEL ESCARIO, HEIRS OF
FELIX LUCIANO, AND MALAYANG SAMAHAN NG MGA
MANGGAGAWA SA BALANCED FOODS, PETITIONERS,
VS. NATIONAL LABOR RELATIONS COMMISSION
(THIRD DIVISION), PINAKAMASARAP CORPORATION,
DR. SY LIAN TIN, AND DOMINGO TAN,
RESPONDENTS.
DECISION
BERSAMIN, J.:

Conformably with the long honored principle of a fair day's wage for a fair day's labor,
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Conformably with the long honored principle of a fair day's wage for a fair day's labor,
employees dismissed for joining an illegal strike are not entitled to backwages for
the period of the strike even if they are reinstated by virtue of their being merely
members of the striking union who did not commit any illegal act during the
strike.

We apply this principle in resolving this appeal via a petition for review on certiorari
of the decision dated August 18, 2003 of the Court of Appeals (CA),[1] affirming
the decision dated November 29, 2001 rendered by the National Labor Relations
Commission (NLRC) directing their reinstatement of the petitioners to their
former positions without backwages, or, in lieu of reinstatement, the payment of
separation pay equivalent to one-half month per year of service.[2]
Antecedents
The petitioners were among the regular employees of respondent Pinakamasarap
Corporation (PINA), a corporation engaged in manufacturing and selling food
seasoning. They were members of petitioner Malayang Samahan ng mga
Manggagawa sa Balanced Foods (Union).

At 8:30 in the morning of March 13, 1993, all the officers and some 200 members
of the Union walked out of PINA's premises and proceeded to the barangay
office to show support for Juanito Cañete, an officer of the Union charged with
oral defamation by Aurora Manor, PINA's personnel manager, and Yolanda
Fabella, Manor's secretary.[3] It appears that the proceedings in the barangay
resulted in a settlement, and the officers and members of the Union all returned to
work thereafter.
As a result of the walkout, PINA preventively suspended all officers of the Union
because of the March 13, 1993 incident. PINA terminated the officers of the
Union after a month.
On April 14, 1993, PINA filed a complaint for unfair labor practice (ULP) and
damages. The complaint was assigned to then Labor Arbiter Raul Aquino, who
ruled in his decision dated July 13, 1994 that the March 13, 1993 incident was an
illegal walkout constituting ULP; and that all the Union's officers, except Cañete,
had thereby lost their employment.[4]
On April 28, 1993, the Union filed a notice of strike, claiming that PINA was
guilty of union busting through the constructive dismissal of its officers.[5] On
May 9, 1993, the Union held a strike vote, at which a majority of 190 members of
the Union voted to strike.[6]  The strike was held in the afternoon of June 15,
1993.[7]

PINA retaliated by charging the petitioners with ULP and abandonment of work,
stating that they had violated provisions on strike of the collective bargaining
agreement (CBA), such as: (a) sabotage by the insertion of foreign matter in the
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agreement (CBA), such as: (a) sabotage by the insertion of foreign matter in the
bottling of company products; (b) decreased production output by slowdown; (c)
serious misconduct, and willful disobedience and insubordination to the orders of
the Management and its representatives; (d) disruption of the work place by
invading the premises and perpetrating commotion and disorder, and by causing
fear and apprehension; (e) abandonment of work since June 28, 1993 despite
notices to return to work individually sent to them; and (f) picketing within the
company premises on June 15, 1993 that effectively barred with the use of threat
and intimidation the ingress and egress of PINA's officials, employees, suppliers,
and customers. [8]

On September 30, 1994, the Third Division of the National Labor Relations
Commission (NLRC) issued a temporary restraining order (TRO), enjoining the
Union's officers and members to cease and desist from barricading and
obstructing the entrance to and exit from PINA's premises, to refrain from
committing any and all forms of violence, and to remove all forms of obstructions
such as streamers, placards, or human barricade.[9]

On November 29, 1994, the NLRC granted the writ of preliminary injunction.[10]

On August 18, 1998, Labor Arbiter Jose G. de Vera (LA) rendered a decision, to
wit:

WHEREFORE, all the foregoing premises being considered, judgment

is hereby rendered declaring the subject strike to be illegal.

The complainant's prayer for decertification of the respondent union

being outside of the jurisdiction of this Arbitration Branch may not be
given due course.
And finally, the claims for moral and exemplary damages for want of
factual basis are dismissed.

SO ORDERED.[11]

On appeal, the NLRC sustained the finding that the strike was illegal, but reversed
the LA's ruling that there was abandonment, viz:

However, we disagree with the conclusion that respondents' union

members should be considered to have abandoned their employment.

Under Article 264 of the Labor Code, as amended, the union officers
who knowingly participate in the illegal strike may be declared to have
lost their employment status. However, mere participation of a union
member in the illegal strike does not mean loss of employment status
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member in the illegal strike does not mean loss of employment status
unless he participates in the commission of illegal acts during the strike.
While it is true that complainant thru individual memorandum directed
the respondents to return to work (pp. 1031-1112, Records) there is no
showing that respondents deliberately refused to return to work. A
worker who joins a strike does so precisely to assert or improve the
terms and conditions of his work. If his purpose is to abandon his
work, he would not go to the trouble of joining a strike (BLTB v.
NLRC, 212 SCRA 794).
WHEREFORE, premises considered, the Decision appealed from is
hereby MODIFIED in that complainant company is directed to
reinstate respondents named in the complaint to their former positions
but without backwages. In the event that reinstatement is not feasible
complainant company is directed to pay respondents separation pay at
one (1/2) half month per year of service.

SO ORDERED.[12]

Following the denial of their motion for reconsideration, the petitioners assailed
the NLRC's decision through a petition for certiorari in the Court of Appeals (CA), 
claiming that the NLRC gravely abused its discretion in not awarding backwages
pursuant to Article 279 of the Labor Code, and in not declaring their strike as a
good faith strike.

On August 18, 2003, the CA affirmed the NLRC.[13]  In denying the petitioners'
claim for full backwages, the CA applied the third paragraph of Article 264(a)
instead of Article 279 of the Labor Code, explaining that the only instance under
Article 264 when a dismissed employee would be reinstated with full backwages
was when he was dismissed by reason of an illegal lockout; that Article 264 was
silent on the award of backwages to employees participating in a lawful strike; and
that a reinstatement with full backwages would be granted only when the dismissal
of the petitioners was not done in accordance with Article 282 (dismissals with
just causes) and Article 283 (dismissals with authorized causes) of the Labor Code.

The CA disposed thus:[14]

WHEREFORE, premises considered, the Petition is DISMISSED for

lack of merit and the assailed 29 November 2001 Decision of
respondent Commission in NLRC NRC CA No. 009701-95 is hereby
AFFIRMED in toto. No costs.

SO ORDERED.[15]

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On October 13, 2003, the CA denied the petitioners' motion for reconsideration.
[16]

Hence, this appeal via petition for review on certiorari.

Issue
The petitioners posit that they are entitled to full backwages from the date of
dismissal until the date of actual reinstatement due to their not being found to
have abandoned their jobs. They insist that the CA decided the question in a
manner contrary to law and jurisprudence.
Ruling
We sustain the CA, but modify the decision on the amount of the backwages in
order to accord with equity and jurisprudence.

I
Third Paragraph of Article 264 (a),
Labor Code, is Applicable
The petitioners contend that they are entitled to full backwages by virtue of their
reinstatement, and submit that applicable to their situation is Article 279, not the
third paragraph of Article 264(a), both of the Labor Code.
We do not agree with the petitioners.

Article 279 provides:

Article 279. Security of Tenure. - In cases of regular employment, the

employer shall not terminate the services of an employee except for a
just cause or when authorized by this Title. An 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.

By its use of the phrase unjustly dismissed, Article 279 refers to a dismissal that is
unjustly done, that is, the employer dismisses the employee without observing due
process, either substantive or procedural.Substantive due process requires the
attendance of any of the just or authorized causes for terminating an employee as
provided under Article 278 (termination by employer), or Article 283 (closure of
establishment and reduction of personnel), or Article 284 (disease as ground for
termination), all of the Labor Code; while procedural due process demands
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termination), all of the Labor Code; while procedural due process demands
compliance with the twin-notice requirement.[17]
In contrast, the third paragraph of Article 264(a) states:

Art. 264. Prohibited activities. - (a) xxx

Any worker whose employment has been terminated as a consequence

of an unlawful lockout shall be entitled to reinstatement with full
backwages. Any union officer who knowingly participates in an illegal
strike and any worker or union officer who knowingly participates in
the commission of illegal acts during a strike may be declared to have
lost his employment status; Provided, That mere participation of a
worker in a lawful strike shall not constitute sufficient ground for
termination of his employment, even if a replacement had been hired by
the employer during such lawful strike.
xxx
Contemplating two causes for the dismissal of an employee, that is: (a) unlawful
lockout; and (b) participation in an illegal strike, the third paragraph of Article
264(a) authorizes the award of full backwages only when the termination of
employment is a consequence of an unlawful lockout. On the consequences of an
illegal strike, the provision distinguishes between a union officer and a union
member participating in an illegal strike. A union officer who knowingly
participates in an illegal strike is deemed to have lost his employment status, but a
union member who is merely instigated or induced to participate in the illegal
strike is more benignly treated. Part of the explanation for the benign
consideration for the union member is the policy of reinstating rank-and-file
workers who are misled into supporting illegal strikes, absent any finding that such
workers committed illegal acts during the period of the illegal strikes.[18]

The petitioners were terminated for joining a strike that was later declared to be
illegal. The NLRC ordered their reinstatement or, in lieu of reinstatement, the
payment of their separation pay, because they were mere rank-and-file workers
whom the Union's officers had misled into joining the illegal strike. They were not
unjustly dismissed from work. Based on the text and intent of the two
aforequoted provisions of the Labor Code, therefore, it is plain that Article 264(a) is
the applicable one.

II
Petitioners not entitled to backwages
despite their reinstatement:
A fair day's wage for a fair day's labor
The petitioners argue that the finding of no abandonment equated to a finding of
illegal dismissal in their favor. Hence, they were entitled to full backwages.
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The petitioners' argument cannot be sustained.

The petitioners' participation in the illegal strike was precisely what prompted
PINA to file a complaint to declare them, as striking employees, to have lost their
employment status. However, the NLRC ultimately ordered their reinstatement
after finding that they had not abandoned their work by joining the illegal strike.
They were thus entitled only to reinstatement, regardless of whether or not the
strike was the consequence of the employer's ULP,[19] considering that a strike
was not a renunciation of the employment relation.[20]
As a general rule, backwages are granted to indemnify a dismissed employee for
his loss of earnings during the whole period that he is out of his job. Considering
that an illegally dismissed employee is not deemed to have left his employment, he
is entitled to all the rights and privileges that accrue to him from the employment.
[21] The grant of backwages to him is in furtherance and effectuation of the public
objectives of the Labor Code, and is in the nature of a command to the employer to
make a public reparation for his illegal dismissal of the employee in violation of
the Labor Code.[22]

That backwages are not granted to employees participating in an illegal strike

simply accords with the reality that they do not render work for the employer
during the period of the illegal strike.[23] According to G&S Transport Corporation v.
Infante:[24]

With respect to backwages, the principle of a "fair day's wage for a fair
day's labor" remains as the basic factor in determining the award
thereof. If there is no work performed by the employee there can
be no wage or pay unless, of course, the laborer was able, willing
and ready to work but was illegally locked out, suspended or
dismissed or otherwise illegally prevented from working. xxx In
Philippine Marine Officers' Guild v. Compañia Maritima, as affirmed in
Philippine Diamond Hotel and Resort v. Manila Diamond Hotel Employees
Union, the Court stressed that for this exception to apply, it is
required that the strike be legal, a situation that does not obtain in
the case at bar. (emphasis supplied)

The petitioners herein do not deny their participation in the June 15, 1993 strike.
As such, they did not suffer any loss of earnings during their absence from work.
Their reinstatement sans backwages is in order, to conform to the policy of a fair
day's wage for a fair day's labor.
Under the principle of a fair day's wage for a fair day's labor, the petitioners were not
entitled to the wages during the period of the strike (even if the strike might be
legal), because they performed no work during the strike. Verily, it was neither fair
nor just that the dismissed employees should litigate against their employer on the
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nor just that the dismissed employees should litigate against their employer on the
latter's time.[25] Thus, the Court deleted the award of backwages and held that the
striking workers were entitled only to reinstatement in Philippine Diamond Hotel and
Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union,[26]
considering that the striking employees did not render work for the employer
during the strike.

III
Appropriate Amount for Separation Pay
Is One Month per Year of Service

The petitioners were ordered reinstated because they were union members merely
instigated or induced to participate in the illegal strike. By joining the strike, they
did not renounce their employment relation with PINA but remained as its
employees.

The absence from an order of reinstatement of an alternative relief should the

employer or a supervening event not within the control of the employee prevent
reinstatement negates the very purpose of the order. The judgment favorable to
the employee is thereby reduced to a mere paper victory, for it is all too easy for
the employer to simply refuse to have the employee back. To safeguard the spirit
of social justice that the Court has advocated in favor of the working man,
therefore, the right to reinstatement is to be considered renounced or waived only
when the employee unjustifiably or unreasonably refuses to return to work upon
being so ordered or after the employer has offered to reinstate him.[27]

However, separation pay is made an alternative relief in lieu of reinstatement in

certain circumstances, like: (a) when reinstatement can no longer be effected in
view of the passage of a long period of time or because of the realities of the
situation; (b) reinstatement is inimical to the employer's interest; (c) reinstatement
is no longer feasible; (d) reinstatement does not serve the best interests of the
parties involved; (e) the employer is prejudiced by the workers' continued
employment; (f) facts that make execution unjust or inequitable have supervened;
or (g) strained relations between the employer and employee.[28]

Here, PINA manifested that the reinstatement of the petitioners would not be
feasible because: (a) it would "inflict disruption and oppression upon the
employer"; (b) "petitioners [had] stayed away" for more than 15 years; (c) its
machines had depreciated and had been replaced with newer, better ones; and (d)
it now sold goods through independent distributors, thereby abolishing the
positions related to sales and distribution.[29]
Under the circumstances, the grant of separation pay in lieu of reinstatement of
the petitioners was proper. It is not disputable that the grant of separation pay or
some other financial assistance to an employee is based on equity, which has been
defined as justice outside law, or as being ethical rather than jural and as belonging
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defined as justice outside law, or as being ethical rather than jural and as belonging
to the sphere of morals than of law.[30] This Court has granted separation pay as a
measure of social justice even when an employee has been validly dismissed, as
long as the dismissal has not been due to serious misconduct or reflective of
personal integrity or morality.[31]

What is the appropriate amount for separation pay?

In G & S Transport,[32] the Court awarded separation pay equivalent to one month
salary per year of service considering that 17 years had passed from the time when
the striking employees were refused reinstatement. In Association of Independent
Unions in the Philippines v. NLRC,[33] the Court allowed separation pay equivalent to
one month salary per year of service considering that eight years had elapsed since
the employees had staged their illegal strike.
Here, we note that this case has dragged for almost 17 years from the time of the
illegal strike. Bearing in mind PINA's manifestation that the positions that the
petitioners used to hold had ceased to exist for various reasons, we hold that
separation pay equivalent to one month per year of service in lieu of reinstatement
fully aligns with the aforecited rulings of the Court on the matter.
WHEREFORE, we affirm the decision dated August 18, 2003 of the Court of
Appeals, subject to the modification to the effect that in lieu of reinstatement the
petitioners are granted backwages equivalent of one month for every year of
service.
SO  ORDERED.

Carpio Morales, (Chairperson), Peralta,* Villarama, Jr., and Sereno, JJ., concur.

*  Additional member per Special Order No. 885 dated September 1, 2010.
[1]Rollo, pp. 26-37; penned by Associate Justice Andres B. Reyes, Jr. (now
Presiding Justice of the Court of Appeals), with Associate Justices Eubolo G.
Verzola (deceased) and Regalado E. Maambong (retired), concurring.
[2] Id., pp. 42-51.
[3] Id., p. 46.
[4] Id., p. 47.
[5] Id.

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[6] Id.

[7] Id.; the date appears as June 23, 1993 in page 4 of the petition for review on
certiorari.
[8] Id., p. 45.
[9] Id., p. 47.
[10] Id.

[11] Id., p. 32.

[12] Id., pp. 50-51.
[13] Id.,
pp. 26-37; penned by Associate Justice Andres B. Reyes, Jr. (now Presiding
Justice), and concurred in by Associate Justice Eubolo G. Verzola (now deceased)
and Associate Justice Regalado E. Maambong (now retired).
[14] Id.

[15] Id., p. 37.

[16] Id., pp. 39-40.
[17]
Chan, Law on Labor Relations and Termination of Employment Annotated, 1996, pp.
604-614.
[18]
Stamford Marketing Corporation v. Julian, G.R. No. 145496, February 24, 2004,
423 SCRA 633, 648; Gold City Integrated Port Service v. National Labor Relations
Commission, G.R. Nos. 103560 and 103599, July 6, 1995, 245 SCRA 628.
[19]Cromwell Commercial Employees and Laborers Union (PTUC) v. Court of Industrial
Relations, G.R. No. L-19778, September 30, 1964, 12 SCRA 124; Phil. Steam
Navigation Co. v. Phil. Marine Officers Guild, G.R. Nos. L-20667 and L-20669,
October 29, 1965, 15 SCRA 174.
[20]Feati University v. Bautista, G.R. No. L-21278, December 27, 1966, 18 SCRA
1191, 1224; Rex Taxicab v. Court of Industrial Relations, 70 Phil 621, 631; Radio
Operators v. PHILMAROA, 102 Phil 530.
[21]
Gold City Integrated Port Services, Inc. v. National Labor Relations Commission, 245
SCRA 628 and Cristobal v. Melchor, 101 SCRA 857.
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[22]Imperial Textile Mills, Inc. v. National Labor Relations Commission, G.R. No.
101527, January 19, 1993, 217 SCRA 237, 247.
[23]Lapanday Workers Union v. National Labor Relations Commission, G.R. Nos.
95494-97, September 7, 1995, 248 SCRA 95, 107.
[24] G.R. No. 160303, September 13, 2007, 533 SCRA 288, 301-302.
[25] Suguev. Triumph International (Phils.) Inc., G.R. Nos. 164804 and 164784, January
30, 2009, 577 SCRA 323; Social Security System v. SSS Supervisors' Union, G.R. No. L-
31832, October 23, 1982, 117 SCRA 746; J. P. Heilbronn Co. v. Nat'l Labor Union,
92 Phil. 575 (1953).
[26] G.R. No. 158075, June 30, 2006, 494 SCRA 195.
[27]
Salvador v. Court of Appeals (Special Sixth Division), G.R. No. 127501, May 5,
2000, 331 SCRA 438, 445; East Asiatic Company, Ltd. v. Court of Industrial Relations,
G.R. No. L-29068, 40 SCRA 521, 537-538.
[28] Poquiz, Labor Relations Law with Notes and Cases Volume II (2006), p. 319,
citing Manipon,  Jr. v. National Labor Relations Commission, G.R. No. 105338,
December 24, 1994, 239 SCRA 451.
[29]Private Respondent's Manifestation dated January 19, 2009 (pp. 3-4). Rollo,
pp. 121-122.
[30]Salavarria v. Letran College, G.R. No. 110396, September 25, 1998, 296 SCRA
184, 191; Phil. Long Distance Telephone Co. v. National Labor Relations Commission, G.R.
No.L-80609, August 23, 1988, 164 SCRA 671, 682.
[31]
Philippine Commercial International Bank v. Abad, G.R. No. 158045, February 28,
2005, 452 SCRA 579, 587; Gustilo v. Wyeth Philippines Inc., G.R. No. 149629,
October 4, 2004, 440 SCRA 67, 76; Gabuay v. Oversea Paper Supply, Inc., G.R. No.
148837, August 13, 2004, 436 SCRA 514.
[32] Supra at note 24, p. 304; See also Philippine Diamond Hotel and Resort, Inc.
(Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union, supra at note 26, p.
217.
[33] G.R. No. 120505, March 25, 1999, 305 SCRA 219,235.

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