THIRD DIVISION

[G.R. No. 99858. June 19, 1995.]

PHILIPPINE TELEGRAPH AND TELEPHONE
CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and PT&T EMPLOY
EES UNION-ALU, respondents.
SYLLABUS
1. LABOR AND SOCIAL LEGISLATION; WAGES; STATUTORY WAGE INCREASE; COMPLIANCE THERETO MUST
BE SUBSTANTIATED. We need not belabor the first of the two grounds raised by petitioner corporation. We see no
merit at all in the contention that the NLRC has committed grave abuse of discretion, amounting to lack of jurisdiction, in
finding petitioner to have failed in its compliance with the increases mandated by Wage Orders No. 3, 4, 5 and 6, as well
as the 1984 and 1986 CBAs. That this factual finding is not without basis should be fairly evident from the statement of
the Labor Arbiter, adopted by the respondent Commission, thusly: "As regards the issue of underpayment,
respondent PT&T miserably failed to substantiate their stand of compliance with Wage Order Nos. 3 to 6 and the
provisions of the 1984 and 1986 CBAs. All that was submitted by the respondent PT&T were sample payrolls for the
period January and February 1985, purportedly to show that complainants were allegedly paid in accordance with Wage
order No. 6, without presenting however, the payrolls for the period of at least two (2) months prior to and after November
1, 1983, when Wage Order No. 3, took effect, in order to determine whether there was compliance or not starting with
Wage Order No. 3. . . .."
2. ID.; ID.; ID.; RULE IN CASE THERE IS A DIFFERENCE WITH THE COLLECTIVE BARGAINING AGREEMENT;
CASE AT BAR. The Solicitor General likewise agrees that petitioner cannot, given the circumstances here obtaining,
be obligated to pay both the CBA and statutory wage increases. The common provisions of Wage Orders No. 3, 5, and 6,
state that: "All increases in wages and/or allowances granted or paid by employees . . . shall be credited as compliance
with the minimum wage and allowance adjustment prescribed herein, provided that where the increases are less than the
applicable amount provided in this Order, the employer shall pay the difference. Such increases shall not include
anniversary wage increases provided in collective bargaining agreements unless the agreement expressly provide
otherwise . . ." Petitioner company and private respondent union, in the 1984 and 1986 CBAs, in turn, have stipulated that:
"The parties agree that in the event of additional wage increase, bonuses or allowances which may during the life of this
agreement being made mandatory as a matter of law, such that the minimum wage including bonuses and allowances
shall be greater than the wage provided therein, then such wages shall ipso facto become the total remunerations under
agreement in lieu of all other remunerations and increases herein provided." The foregoing CBA provisions reveal quite
sufficiently the parties' intention to consider salary increases provided in the CBA to be creditable to wage increases that
are or may be mandated within the applicable period by law. There is nothing sinister in this stipulation. In Filipinas Golf
and Country Club, Inc., vs. National Labor Relations Commission, 176 SCRA 625, we have said that such agreements
merely create an equivalence between legal and contractual imperatives, rendering both obligations susceptible of
performance by compliance with either, subject only to the condition that where the increases given under agreement fall
short in amount of those fixed by law, the difference must be made up by the employer.
DECISION
VITUG, J :p

Herein private respondent PT&T Union-ALU initiated this case via a complaint, filed on 25 November 1986,
charging petitioner Philippine Telegraph and Telephone Corporation ("PT&T") with unfair labor practice acts and
underpayment of statutory and contractual benefits claimed to be due pursuant to Wage Orders No. 3, 4, 5 and 6, and
also under Sections 2 and 3, Article IX, of the 1984 Collective Bargaining Agreement ("CBA") and Section 2, Article
XII, of the 1986 CBA. Petitioner denied the charges.
On 27 April 1989, the Labor Arbiter, following the respective submissions made by the parties, rendered
judgment thusly:
"WHEREFORE, premises considered, respondent Philippine Telegraph and Telephone Corporation
(PT&T) with main office and postal address at SSC Bldg., 106 Alvares St., Legaspi Village, Makati, Metro Manila, is
hereby ORDERED, to pay the individual complainants-members of PT&T Employees Union-ALU their
corresponding salary differentials in accordance with Wage Order Nos. 3 to 6; and/or sections 2 and 3, Article IX of
the 1984 CBA and Section 2, of Article XII of the 1986 CBA.
"As regards the charge of unfair labor practice acts, the same is hereby dismissed for lack of merit."
Petitioner interposed an appeal to the National Labor Relations Commission ("NLRC") and assailed the
arbiter's decision of the following grounds: That
"1. The Honorable Labor Arbiter committed serious errors in finding that the failure of respondent-appellant to
present payrolls for the period of at least two (2) months prior to and after November 1, 1983 leads to the
conclusion that there was indeed a violation of the Wage Orders, which would cause grave or irreparable damage
or injury to the appellants.
 "2. The Honorable Labor Arbiter committed serious errors in the interpretation of the Wage Orders that respondent-
committed a violation thereto."

In a resolution, dated 31 October 1989, the NLRC dismissed the appeal for lack of merit. Petitioner moved for
reconsideration stressing that only the higher remuneration from either the statutorily mandated increase or the CBA
should be given and paid to the employees. This motion, as well as the supplement thereto, was denied by public
respondent.
Hence, this petition for certiorari.
We grant, in part, the petition.
We need not belabor the first of the two grounds raised by petitioner corporation. We see no merit at all in the
contention that the NLRC has committed grave abuse of discretion, amounting to lack of jurisdiction, in finding
petitioner to have failed in its compliance with the increases mandated by Wage Orders No. 3, 4, 5, and 6, as well as
the 1984 and 1986 CBAs. That this factual finding is not without basis should be fairly evident from the statement of
the Labor Arbiter, adopted by the respondent Commission, thusly:
"As regards the issue of underpayment, respondent PT&T miserably failed to substantiate their stand of
compliance with Wage Order Nos. 3 to 6 and the provisions of the 1984 and 1986 CBAs. All that was submitted by
the respondent PT&T were sample payrolls for the period January and February 1985, purportedly to show that
complainants were allegedly paid in accordance with Wage Order No. 6, without presenting however, the payrolls
for the period of at least two (2) months prior to and after November 1, 1983, when Wage Order No. 3, took effect,
in order to determine whether there was compliance or not starting with Wage No. 3. . . " 1

Petitioner's position, however, on the second issue is well taken. The Solicitor General likewise agrees that
petitioner cannot, given the circumstances here obtaining, be obligated to pay both the CBA and statutory wage
increase. The common provisions of Wage Orders No. 3, 5, and 6, state that:
"All increases in wages and/or allowances granted or paid by employees . . . shall be credited as compliance with
the minimum wage and allowance adjustment prescribed herein, provided that where the increase are less than the
applicable amount provided in this Order, the employer shall pay the difference. Such increases shall not include
anniversary wage increases provided in collective bargaining agreements unless the agreement expressly provide
otherwise . . ." 2

Petitioner company and private respondent union, in the 1984 and 1986 CBAs, in turn, have stipulated that:
"The parties agree that in the event of additional wage increases, bonuses or allowances which may during the life
of this agreement being made mandatory as a matter of law, such that the minimum wage including bonuses and
allowances shall be greater than the wage provided therein, then such wages shall ipso factobecome the total
remunerations under agreement in lieu of all other remunerations and increases herein provided." 3

The foregoing CBA provisions reveal quite sufficiently the parties' intention to consider salary increases provided in
the CBA to be creditable to wage increases that are or may be mandated within the applicable period by law. There is
nothing sinister in this stipulation. In Filipinas Golf and Country Club, Inc., vs. National LaborRelations Commission,
176 SCRA 625, we have said that such agreements merely create an equivalence between legal and contractual
imperatives, rendering both obligations susceptible of performance by compliance with either, subject only to the
condition that where the increases given under agreement fall short in amount of those fixed by law, the difference
must be made up by the employer.
WHEREFORE, the decision of the National Labor Relations commission under review is MODIFIED insofar
as it affirmed in toto the Labor Arbiter's decision ordering the payment to private respondent union's members their
corresponding salary differentials in accordance with wage Orders No. 3 to 6; and Sections 2 and 3, Article IX of the
1984 CBA and Section 2, of Article XII of the 1986 CBA; instead, the case is REMANDED to the Commission for a
computation of the salary differentials payable to the members of respondent union conformably with, and in the
manner expressed in, this opinion. No special pronouncement on costs.
SO ORDERED.
Feliciano, Romero, Melo and Francisco, JJ., concur.
(Philippine Telegraph and Telephone Corp. v. National Labor Relations Commission, G.R. No. 99858, [June 19, 1995],
|||

315 PHIL 177-182)

 SECOND DIVISION
[G.R. No. 162994. September 17, 2004.]
DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners, vs.
GLAXO WELLCOME PHILIPPINES, INC., respondent.
RESOLUTION
TINGA, J :p

Confronting the Court in this petition is a novel question, with constitutional overtones, involving the validity of the policy of
a pharmaceutical company prohibiting its employees from marrying employees of any competitor company.
This is a Petition for Review on Certiorari assailing the Decision 1 dated May 19, 2003 and the Resolution dated March 26,
2004 of the Court of Appeals in CA-G.R. SP No. 62434. 2
Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as medical
representative on October 24, 1995, after Tecson had undergone training and orientation.
Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to study and abide by
existing company rules; to disclose to management any existing or future relationship by consanguinity or affinity with co-
employees or employees of competing drug companies and should management find that such relationship poses a
possible conflict of interest, to resign from the company.
The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform management of any
existing or future relationship by consanguinity or affinity with co-employees or employees of competing drug companies.
If management perceives a conflict of interest or a potential conflict between such relationship and the employees
employment with the company, the management and the employee will explore the possibility of a transfer to another
department in a non-counterchecking position or preparation for employment outside the company after six months.
Tecson was initially assigned to market Glaxos products in the Camarines Sur-Camarines Norte sales area. SHADcT

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra Pharmaceuticals 3 (Astra), a
competitor of Glaxo. Bettsy was Astras Branch Coordinator in Albay. She supervised the district managers and medical
representatives of her company and prepared marketing strategies for Astra in that area.
Even before they got married, Tecson received several reminders from his District Manager regarding the conflict of
interest which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in September
1998.
In January 1999, Tecsons superiors informed him that his marriage to Bettsy gave rise to a conflict of interest. Tecsons
superiors reminded him that he and Bettsy should decide which one of them would resign from their jobs, although they
told him that they wanted to retain him as much as possible because he was performing his job well.
Tecson requested for time to comply with the company policy against entering into a relationship with an employee of a
competitor company. He explained that Astra, Bettsys employer, was planning to merge with Zeneca, another drug
company; and Bettsy was planning to avail of the redundancy package to be offered by Astra. With Bettsys separation
from her company, the potential conflict of interest would be eliminated. At the same time, they would be able to avail of
the attractive redundancy package from Astra.
In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson applied for a
transfer in Glaxos milk division, thinking that since Astra did not have a milk division, the potential conflict of interest
would be eliminated. His application was denied in view of Glaxos least-movement-possible policy.
In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales area. Tecson asked
Glaxo to reconsider its decision, but his request was denied.
Tecson sought Glaxos reconsideration regarding his transfer and brought the matter to Glaxos Grievance Committee.
Glaxo, however, remained firm in its decision and gave Tecson until February 7, 2000 to comply with the transfer order.
Tecson defied the transfer order and continued acting as medical representative in the Camarines Sur-Camarines Norte
sales area.
During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued samples of products
which were competing with similar products manufactured by Astra. He was also not included in product conferences
regarding such products.
Because the parties failed to resolve the issue at the grievance machinery level, they submitted the matter for voluntary
arbitration. Glaxo offered Tecson a separation pay of one-half () month pay for every year of service, or a total of
P50,000.00 but he declined the offer. On November 15, 2000, the National Conciliation and Mediation Board (NCMB)
rendered its Decision declaring as valid Glaxos policy on relationships between its employees and persons employed
with competitor companies, and affirming Glaxos right to transfer Tecson to another sales territory.
Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision. EHSTcC

On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on the ground that the
NCMB did not err in rendering its Decision. The appellate court held that Glaxos policy prohibiting its employees from
having personal relationships with employees of competitor companies is a valid exercise of its management
prerogatives. 4
Tecson filed a Motion for Reconsideration of the appellate courts Decision, but the motion was denied by the appellate
court in its Resolution dated March 26, 2004. 5
Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the NCMBs finding that
the Glaxos policy prohibiting its employees from marrying an employee of a competitor company is valid; and (ii) the
Court of Appeals also erred in not finding that Tecson was constructively dismissed when he was transferred to a new
sales territory, and deprived of the opportunity to attend products seminars and training sessions. 6
Petitioners contend that Glaxos policy against employees marrying employees of competitor companies violates the
equal protection clause of the Constitution because it creates invalid distinctions among employees on account only of
marriage. They claim that the policy restricts the employees right to marry. 7
They also argue that Tecson was constructively dismissed as shown by the following circumstances: (1) he was
transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan sales area, (2) he
suffered a diminution in pay, (3) he was excluded from attending seminars and training sessions for medical
representatives, and (4) he was prohibited from promoting respondents products which were competing with Astras
products. 8
In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from having a relationship
with and/or marrying an employee of a competitor company is a valid exercise of its management prerogatives and does
not violate the equal protection clause; and that Tecsons reassignment from the Camarines Norte-Camarines Sur sales
area to the Butuan City-Surigao City and Agusan del Sur sales area does not amount to constructive dismissal. 9
Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has a genuine interest
in ensuring that its employees avoid any activity, relationship or interest that may conflict with their responsibilities to the
company. Thus, it expects its employees to avoid having personal or family interests in any competitor company which
may influence their actions and decisions and consequently deprive Glaxo of legitimate profits. The policy is also aimed at
preventing a competitor company from gaining access to its secrets, procedures and policies. 10
It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future relationships with
employees of competitor companies, and is therefore not violative of the equal protection clause. It maintains that
considering the nature of its business, the prohibition is based on valid grounds. 11
According to Glaxo, Tecsons marriage to Bettsy, an employee of Astra, posed a real and potential conflict of interest.
Astras products were in direct competition with 67% of the products sold by Glaxo. Hence, Glaxos enforcement of the
foregoing policy in Tecsons case was a valid exercise of its management prerogatives. 12 In any case, Tecson was given
several months to remedy the situation, and was even encouraged not to resign but to ask his wife to resign from Astra
instead. 13
Glaxo also points out that Tecson can no longer question the assailed company policy because when he signed his
contract of employment, he was aware that such policy was stipulated therein. In said contract, he also agreed to resign
from respondent if the management finds that his relationship with an employee of a competitor company would be
detrimental to the interests of Glaxo. 14
Glaxo likewise insists that Tecsons reassignment to another sales area and his exclusion from seminars regarding
respondents new products did not amount to constructive dismissal.
It claims that in view of Tecsons refusal to resign, he was relocated from the Camarines Sur-Camarines Norte sales area
to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo asserts that in effecting the reassignment, it also
considered the welfare of Tecsons family. Since Tecsons hometown was in Agusan del Sur and his wife traces her roots
to Butuan City, Glaxo assumed that his transfer from the Bicol region to the Butuan City sales area would be favorable to
him and his family as he would be relocating to a familiar territory and minimizing his travel expenses. 15
In addition, Glaxo avers that Tecsons exclusion from the seminar concerning the new anti-asthma drug was due to the
fact that said product was in direct competition with a drug which was soon to be sold by Astra, and hence, would pose a
potential conflict of interest for him. Lastly, the delay in Tecsons receipt of his sales paraphernalia was due to the mix-up
created by his refusal to transfer to the Butuan City sales area (his paraphernalia was delivered to his new sales area
instead of Naga City because the supplier thought he already transferred to Butuan). 16
The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling that Glaxos policy
against its employees marrying employees from competitor companies is valid, and in not holding that said policy violates
the equal protection clause of the Constitution; (2) Whether Tecson was constructively dismissed.
The Court finds no merit in the petition.
The stipulation in Tecsons contract of employment with Glaxo being questioned by petitioners provides: ScaEIT

xxx xxx xxx

10. You agree to disclose to management any existing or future relationship you may have, either by consanguinity
or affinity with co-employees or employees of competing drug companies. Should it pose a possible conflict of
interest in management discretion, you agree to resign voluntarily from the Company as a matter of Company
policy.
xxx xxx xxx 17

The same contract also stipulates that Tecson agrees to abide by the existing company rules of Glaxo, and to study and
become acquainted with such policies. 18 In this regard, the Employee Handbook of Glaxo expressly informs its
employees of its rules regarding conflict of interest:
1. Conflict of Interest
Employees should avoid any activity, investment relationship, or interest that may run counter to the responsibilities
which they owe Glaxo Wellcome.
Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier or other
businesses which may consciously or unconsciously influence their actions or decisions and thus
deprive Glaxo Wellcome of legitimate profit.
b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to advance their
outside personal interests, that of their relatives, friends and other businesses.
c. To avoid outside employment or other interests for income which would impair their effective job
performance.
d. To consult with Management on such activities or relationships that may lead to conflict of interest.
1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-employees of competing
drug companies are expected to disclose such relationship to the Management. If management perceives a conflict
or potential conflict of interest, every effort shall be made, together by management and the employee, to arrive at
a solution within six (6) months, either by transfer to another department in a non-counter checking position, or by
career preparation toward outside employment after Glaxo Wellcome. Employees must be prepared for possible
resignation within six (6) months, if no other solution is feasible. 19

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxos policy prohibiting an employee from
having a relationship with an employee of a competitor company is a valid exercise of management prerogative.
Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs
and information from competitors, especially so that it and Astra are rival companies in the highly competitive
pharmaceutical industry.
The prohibition against personal or marital relationships with employees of competitor companies upon Glaxos
employees is reasonable under the circumstances because relationships of that nature might compromise the interests of
the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against the possibility
that a competitor company will gain access to its secrets and procedures.
That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution
recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on
investments and to expansion and growth. 20 Indeed, while our laws endeavor to give life to the constitutional policy on
social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers.
The law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of
fair play. 21
As held in a Georgia, U.S.A case, 22 it is a legitimate business practice to guard business confidentiality and protect a
competitive position by even-handedly disqualifying from jobs male and female applicants or employees who are married
to a competitor. Consequently, the court ruled than an employer that discharged an employee who was married to an
employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964. 23 The Court pointed out that the
policy was applied to men and women equally, and noted that the employers business was highly competitive and that
gaining inside information would constitute a competitive advantage.
The challenged company policy does not violate the equal protection clause of the Constitution as petitioners erroneously
suggest. It is a settled principle that the commands of the equal protection clause are addressed only to the state or those
acting under color of its authority. 24 Corollarily, it has been held in a long array of U.S. Supreme Court decisions that the
equal protection clause erects no shield against merely private conduct, however, discriminatory or wrongful. 25 The only
exception occurs when the state 26 in any of its manifestations or actions has been found to have become entwined or
involved in the wrongful private conduct. 27Obviously, however, the exception is not present in this case. Significantly, the
company actually enforced the policy after repeated requests to the employee to comply with the policy. Indeed, the
application of the policy was made in an impartial and even-handed manner, with due regard for the lot of the
employee. ITDHSE

In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear that Glaxo
does not impose an absolute prohibition against relationships between its employees and those of competitor companies.
Its employees are free to cultivate relationships with and marry persons of their own choosing. What the company merely
seeks to avoid is a conflict of interest between the employee and the company that may arise out of such relationships. As
succinctly explained by the appellate court, thus:
The policy being questioned is not a policy against marriage. An employee of the company remains free to marry
anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that belongs only to the
individual. However, an employees personal decision does not detract the employer from exercising management
prerogatives to ensure maximum profit and business success . . . 28

The Court of Appeals also correctly noted that the assailed company policy which forms part of respondents Employee
Code of Conduct and of its contracts with its employees, such as that signed by Tecson, was made known to him prior to
his employment. Tecson, therefore, was aware of that restriction when he signed his employment contract and when he
entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily entered into a contract of employment with
Glaxo, the stipulations therein have the force of law between them and, thus, should be complied with in good faith. 29 He
is therefore estopped from questioning said policy.
The Court finds no merit in petitioners contention that Tecson was constructively dismissed when he was transferred from
the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-Agusan del Sur sales area, and when he
was excluded from attending the companys seminar on new products which were directly competing with similar products
manufactured by Astra. Constructive dismissal is defined as a quitting, an involuntary resignation resorted to when
continued employment becomes impossible, unreasonable, or unlikely; when there is a demotion in rank or diminution in
pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. 30 None
of these conditions are present in the instant case. The record does not show that Tecson was demoted or unduly
discriminated upon by reason of such transfer. As found by the appellate court, Glaxo properly exercised its management
prerogative in reassigning Tecson to the Butuan City sales area:
. . . In this case, petitioners transfer to another place of assignment was merely in keeping with the policy of the
company in avoidance of conflict of interest, and thus valid . . . Note that [Tecsons] wife holds a sensitive
supervisory position as Branch Coordinator in her employer-company which requires her to work in close
coordination with District Managers and Medical Representatives. Her duties include monitoring sales of Astra
products, conducting sales drives, establishing and furthering relationship with customers, collection, monitoring
and managing Astras inventory . . . she therefore takes an active participation in the market war characterized as it
is by stiff competition among pharmaceutical companies. Moreover, and this is significant, petitioners sales
territory covers Camarines Sur and Camarines Norte while his wife is supervising a branch of her employer in
Albay. The proximity of their areas of responsibility, all in the same Bicol Region, renders the conflict of interest not
only possible, but actual, as learning by one spouse of the others market strategies in the region would be
inevitable. [Managements] appreciation of a conflict of interest is therefore not merely illusory and wanting in
factual basis . . . 31

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission, 32 which involved a complaint filed by a
medical representative against his employer drug company for illegal dismissal for allegedly terminating his employment
when he refused to accept his reassignment to a new area, the Court upheld the right of the drug company to transfer or
reassign its employee in accordance with its operational demands and requirements. The ruling of the Court therein,
quoted hereunder, also finds application in the instant case: STaCcA

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. 33

As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for a long period of
time. In the case at bar, the record shows that Glaxo gave Tecson several chances to eliminate the conflict of interest
brought about by his relationship with Bettsy. When their relationship was still in its initial stage, Tecsons supervisors at
Glaxo constantly reminded him about its effects on his employment with the company and on the companys interests.
After Tecson married Bettsy, Glaxo gave him time to resolve the conflict by either resigning from the company or asking
his wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in its employ because of his satisfactory
performance and suggested that he ask Bettsy to resign from her company instead. Glaxo likewise acceded to his
repeated requests for more time to resolve the conflict of interest. When the problem could not be resolved after several
years of waiting, Glaxo was constrained to reassign Tecson to a sales area different from that handled by his wife for
Astra. Notably, the Court did not terminate Tecson from employment but only reassigned him to another area where his
home province, Agusan del Sur, was included. In effecting Tecsons transfer, Glaxo even considered the welfare of
Tecsons family. Clearly, the foregoing dispels any suspicion of unfairness and bad faith on the part of Glaxo. 34
WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.
SO ORDERED.
(Duncan Association of Detailman-PTGWO v. Glaxo Wellcome Philippines, Inc., G.R. No. 162994, [September 17,
|||

2004], 481 PHIL 687-705)

 SECOND DIVISION
[G.R. No. 164774. April 12, 2006.]
STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, petitioners, vs.
RONALDO D. SIMBOL, WILFREDA N. COMIA & LORNA E. ESTRELLA, respondents.
DECISION
PUNO, J :p

We are called to decide an issue of first impression: whether the policy of the employer banning spouses from working in
the same company violates the rights of the employee under the Constitution and the Labor Code or is a valid exercise of
management prerogative.
At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals dated August 3, 2004 in CA-G.R. SP
No. 73477 reversing the decision of the National Labor Relations Commission (NLRC) which affirmed the ruling of the
Labor Arbiter.
Petitioner Star Paper Corporation (the company) is a corporation engaged in trading principally of paper products.
Josephine Ongsitco is its Manager of the Personnel and Administration Department while Sebastian Chua is its Managing
Director.
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 the company. 1
Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an employee of the company,
whom he married on June 27, 1998. Prior to the marriage, Ongsitco advised the couple that should they decide to get
married, one of them should resign pursuant to a company policy promulgated in 1995, 2 viz.:
1. New applicants will not be allowed to be hired if in case he/she has [a] relative, up to [the] 3rd degree of
relationship, already employed by the company.
2. In case of two of our employees (both singles [sic], one male and another female) developed a friendly
relationship during the course of their employment and then decided to get married, one of them should resign to
preserve the policy stated above. 3

Simbol resigned on June 20, 1998 pursuant to the company policy. 4

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 pursuant to company policy, one must resign should they decide to
get married. Comia resigned on June 30, 2000. 5
Estrella was hired on July 29, 1994. She met Luisito Zuiga (Zuiga), also a co-worker. Petitioners stated that Zuiga, a
married man, got Estrella pregnant. The company allegedly could have terminated her services due to immorality but she
opted to resign on December 21, 1999. 6
The respondents each signed a Release and Confirmation Agreement. They stated therein that they have no money and
property accountabilities in the company and that they release the latter of any claim or demand of whatever nature. 7
Respondents offer a different version of their dismissal. Simbol and Comia allege that they did not resign voluntarily; they
were compelled to resign in view of an illegal company policy. As to respondent Estrella, she alleges that she had a
relationship with 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. On November 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 on December 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 attorney's 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. aESIDH

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 via Petition forCertiorari.
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 attorney's 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. . . . 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. . . . 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 xxx 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. aIHCSA
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 treatmentand 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.
ADScCE

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 necessityother 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
employee's 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 employer's 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. Glaxo Wellcome 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 Glaxo's
employees 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 petitioner's 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 employee's 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 employee's 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 legislature's silence 41 that married persons are not protected under ourConstitution 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. cAaDHT

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 find Estrella's 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, Estrella's
dismissal 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.
||| (Star Paper Corp. v. Simbol, G.R. No. 164774, [April 12, 2006], 521 PHIL 364-379)
 THIRD DIVISION
[G.R. No. 153477. March 6, 2007.]
DEL MONTE PHILIPPINES, INC., petitioner, vs. LOLITA VELASCO, respondent.
DECISION
AUSTRIA-MARTINEZ, J : p

Before this Court is a Petition for Certiorari under Rule 45 seeking to reverse and set aside the Decision 1 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 Resolution 2 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 Ybaez. 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 Ybaez, 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.DCHaTc

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 OR 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 Filflexwhich 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.
||| (Del Monte Philippines, Inc. v. Velasco, G.R. No. 153477, [March 6, 2007], 546 PHIL 339-351)
 THIRD DIVISION
[G.R. No. 168081. October 17, 2008.]
ARMANDO G. YRASUEGUI, petitioner, vs. PHILIPPINE AIRLINES, INC., respondent.
DECISION
REYES, R.T., J : p

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. CacTSI

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 (5'8") 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. cIADTC

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 company's 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 petitioner's weight problem
recurred. He again went on leave without pay from October 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 of the 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.DcCHTa

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 of the PAL decision 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. SEcAIC

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. EaScHT

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 on August 20, 1992 and 205 pounds on November 5, 1992.
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". TcCDIS

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. HcSCED

Labor Arbiter, NLRC and CA Dispositions

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:
WHEREFORE, in view of the foregoing, judgment is hereby rendered, declaring the complainant's
dismissal illegal, and ordering the respondent to reinstate him to his former position or substantially equivalent one,
and to pay him:
a. Backwages of Php10,500.00 per month from his dismissal on June 15, 1993 until reinstated, which for
purposes of appeal is hereby set from June 15, 1993 up to August 15, 1998 at P651,000.00; ITDHcA
b. Attorney's fees of five percent (5%) of the total award.
SO ORDERED. 14
The Labor Arbiter held that the weight standards of PAL are reasonable in view of the nature of the job of
petitioner. 15 However, the weight standards need not be complied with under pain of dismissal since his weight did not
hamper the performance of his duties. 16 Assuming that it did, petitioner could be transferred to other positions where
his weight would not be a negative factor. 17 Notably, other overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr.
Barrios, were promoted instead of being disciplined. 18
Both parties appealed to the National Labor Relations Commission (NLRC). 19

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 February 1, 2000, the Labor Arbiter denied 21 the Motion to Quash Writ of Execution 22 of PAL. HCEaDI

On March 6, 2000, PAL appealed the denial of its motion to quash to the NLRC. 23

On June 23, 2000, the NLRC rendered judgment 24 in the following tenor:
WHEREFORE, premises considered[,] the Decision of the Arbiter dated 18 November 1998 as modified
by our findings herein, is hereby AFFIRMED and that part of the dispositive portion of said decision concerning
complainant's entitlement to backwages shall be deemed to refer to complainant's entitlement to his full
backwages, inclusive of allowances and to his other benefits or their monetary equivalent instead of simply
backwages, from date of dismissal until his actual reinstatement or finality hereof. Respondent is enjoined to
manifests (sic) its choice of the form of the reinstatement of complainant, whether physical or through payroll within
ten (10) days from notice failing which, the same shall be deemed as complainant's reinstatement through payroll
and execution in case of non-payment shall accordingly be issued by the Arbiter. Both appeals of respondent thus,
are DISMISSED for utter lack of merit. 25
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 can be no intentional defiance or serious misconduct by
petitioner to the lawful order of PAL for him to lose weight. 27
Like the Labor Arbiter, the NLRC found the weight standards of PAL to be reasonable. However, it found as
unnecessary the Labor Arbiter holding that petitioner was not remiss in the performance of his duties as flight steward
despite being overweight. According to the NLRC, the Labor Arbiter should have limited himself to the issue of whether
the failure of petitioner to attain his ideal weight constituted willful defiance of the weight standards of PAL. 28
PAL moved for reconsideration to no avail. 29 Thus, PAL elevated the matter to the Court of Appeals (CA) via a
petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. 30
By Decision dated August 31, 2004, the CA reversed 31 the NLRC:
WHEREFORE, premises considered, we hereby GRANT the petition. The assailed NLRC decision is
declared NULL and VOID and is hereby SET ASIDE. The private respondent's complaint is hereby DISMISSED.
No costs. caITAC
SO ORDERED. 32
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 evidence of the parties. Contrary to the NLRC ruling, the weight
standards of PAL are meant to be a continuing qualification for an employee's position. 34 The failure to adhere to the
weight standards is an analogous cause for the dismissal of an employee under Article 282 (e) of the Labor Code in
relation to Article 282 (a). It is not willful disobedience as the NLRC seemed to suggest. 35 Said the CA, "the element of
willfulness that the NLRC decision cites is an irrelevant consideration in arriving at a conclusion on whether the dismissal
is legally proper". 36 In other words, "the relevant 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 of PAL are reasonable. 38 Thus,
petitioner was legally dismissed because he repeatedly failed to meet the prescribed weight standards. 39 It is obvious
that the issue of discrimination was only invoked by petitioner for purposes of escaping the result of his dismissal for
being overweight. 40
On May 10, 2005, the CA denied petitioner's motion for reconsideration. 41 Elaborating on its earlier ruling, the
CA held that the weight standards of PAL are abona fide occupational qualification which, in case of violation, "justifies
an employee's separation from the service". 42
Issues
In this Rule 45 petition for review, the following issues are posed for resolution:
I.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN HOLDING

THAT PETITIONER'S 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 PETITIONER'S 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
PETITIONER'S 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:
. . . [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 employee's 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 employer's 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". TAIDHa
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. . . . 45
Petitioner, though, advances a very interesting argument. He claims that obesity is a "physical abnormality
and/or illness". 46 Relying on Nadura v. Benguet Consolidated, Inc., 47 he says his dismissal is illegal:
Conscious of the fact that Nadura's 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
Nadura's illness occasional attacks of asthma is a cause analogous to them. IASCTD
Even a cursory reading of the legal provision under consideration is sufficient to convince anyone that,
as the trial court said, "illness cannot be included as an analogous cause by any stretch of imagination".
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 Nadura's illness could be
considered as "analogous" to any of them is beyond our understanding, there being no claim or pretense that the
same was contracted through his own voluntary act. 48
The reliance on Nadura is off-tangent. The factual milieu in Nadura is substantially different from the case at
bar. First, Nadura was not decided under the Labor Code. The 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 employee who was a miner, was laid off from work because of illness, i.e., asthma. Here, petitioner was
dismissed for his failure to meet the weight standards of PAL. He was not dismissed due to illness. Fourth, the issue
in Nadura is whether or not the dismissed employee is entitled to separation pay and damages. Here, the issue centers
on the propriety of the dismissal of petitioner for his failure to meet the weight standards of PAL. Fifth, in Nadura, the
employee was not accorded due process. Here, petitioner was accorded utmost leniency. He was given more than four
(4) years to comply with the weight standards of PAL. STcaDI

In the case at bar, the evidence on record militates against petitioner's claims that obesity is a disease. That he
was able to reduce his weight from 1984 to 1992 clearly shows that it is possible for him to lose weight given the proper
attitude, determination, and self-discipline. Indeed, during the clarificatory hearing on December 8, 1992, petitioner
himself claimed that "[t]he issue is could I bring my weight down to ideal weight which is 172, then the answer is yes. I
can do it now". 49
True, petitioner claims that reducing weight is costing him "a lot of expenses". 50 However, petitioner has only
himself to blame. He could have easily availed 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 checks, without
offering a valid explanation. Thus, his fluctuating weight indicates absence of willpower rather than an illness. EScHDA

Petitioner cites Bonnie Cook v. State of Rhode Island, Department of Mental Health, Retardation and
Hospitals, 52 decided by the United States Court of Appeals (First Circuit). In that case, Cook worked from 1978 to 1980
and from 1981 to 1986 as an institutional attendant for the mentally retarded at the Ladd Center that was being operated
by respondent. She twice resigned voluntarily with an unblemished record. Even respondent admitted that her
performance met the Center's legitimate expectations. In 1988, Cook re-applied for a similar position. At that time, "she
stood 5'2" tall and weighed over 320 pounds". Respondent claimed that the morbid obesity of plaintiff compromised her
ability to evacuate patients in case of emergency and it also put her at greater risk of serious diseases.
Cook contended that the action of respondent amounted to discrimination on 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. cIHDaE

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. CEDScA

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]oluntariness basically 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. DcAaSI

Second, in British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia
Government and Service Employee's Union (BCGSEU), 63the 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. TASCDI

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. cSDHEC

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. aAEIHC
 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 airline's 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
respondent's airlines", must fail. DHaEAS

The rationale in Western Air Lines v. Criswell 76 relied upon by petitioner cannot apply to his case. What was
involved there were two (2) airline pilots who were denied reassignment as flight engineers upon reaching the age of
60, and a flight engineer who was forced to retire at age 60. They sued the airline company, alleging that the age-60
retirement for flight engineers violated the Age Discrimination in Employment Act of 1967. Age-based BFOQ and being
overweight are not the same. The case of overweight cabin attendants is another matter. Given the cramped cabin
space and narrow aisles and emergency exit doors of the airplane, any overweight cabin attendant would certainly have
difficulty navigating the cramped cabin area. ADSTCI

In short, there is no need to individually evaluate their ability to perform their task. That an obese cabin attendant
occupies more space than a slim one is an unquestionable fact which courts can judicially recognize without introduction
of 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. IcTCHD

Petitioner is also in estoppel. He does not dispute that the weight standards of PAL were made known to him
prior to his employment. He is presumed to know the weight limit that he must maintain at all times. 78 In fact, never did
he question the authority of PAL when he was repeatedly asked to trim down his weight. Bona fides exigit ut quod
convenit fiat. Good faith demands that what is agreed upon shall be done. Kung ang tao ay tapat kanyang tutuparin
ang napagkasunduan.
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 discipline is imposed to allow non-compliant cabin attendants
sufficient opportunity to meet the weight standards. Thus, the clear-cut rules obviate any possibility for the commission
of abuse or arbitrary action on the part of PAL. HcSaTI

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 respondent's 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 from PAL despite the similarity of his situation with other employees. ICHcaD

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. HSIaAT

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. ATaDHC
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 that PAL 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. cTCEIS

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 asks PAL 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. ca

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) month's 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. HIaTD

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) month's pay for every year
of service, which should include his regular allowances. SO ORDERED.