CEBU ROYAL PLANT (SAN MIGUEL CORPORATION), PETITIONER, VS. THE HONORABLE DEPUTY MINISTER OF LABOR AND RAMON PILONES, RESPONDENTS.

The private respondent was removed by the petitioner and
complained to the Ministry of Labor.  His
complaint was dismissed by the regional director, who was, however, re­versed
by the public respondent.  Required to
reinstate the separated employee and pay him back wages, the petitioner has
come to us, faulting the Deputy Minister with grave abuse of discretion.  We have issued in the meantime a temporary
restraining order.^[1]

The public respondent held that Ramon Pilones, the private
respondent, was already a permanent employee at the time of his dismissal and
so was entitled to security of tenure. 
The alleged ground for his removal, to wit, “pulmonary tuberculosis
minimal,” was not certified as incurable
within six months as to justify
his separation.^[2] Additionally, the private respondent insists
that the petitioner should have first obtained a clearance, as required
by the regulations then in force, for the termi­nation of his employment.

The petitioner for its part claims that the private respondent
was still on probation at the time of his dis­missal and so had no security of
tenure.  His dismissal was not only in
conformity with company policy but also neces­sary for the protection of the
public health, as he was handling ingredients in the processing of soft drinks
which were being sold to the public.  It
is also argued that the findings of the regional director, who had direct
access to the facts, should not have been disturbed on appeal.  For these same reasons, it contends, the
employee’s reinstate­ment as ordered by the public respondent should not be
allowed.

The original findings were contained in a one-page order^[3] reciting simply that
“complainant was employed on probationary period of employment for six (6) months.  After said period, he underwent medical
examination for qualification as regular employee but the results showed that
he is suffering from PTB minimal. 
Consequently, he was informed
of the termination of his employment by respondent.”
The order then concluded that the termination was “justified.”
That was all.

As there is no mention of the basis of the above order, we may
assume it was the temporary payroll authority^[4]
submitted by the petitioner showing that the private respondent was employed on
probation on February 16, 1978.  Even supposing
that it is not self-serving, we find nevertheless that it is
self-defeating.  The six-month period of
probation started from the said date of appoint­ment and so ended on August 17,
1978, but it is not shown that
the private respondent’s employment also ended then; on the contrary, he
continued working as usual.  Under
Article 282 of the Labor Code, “an employee who is allowed to work after a
probationary period shall be considered a regular employee.” Hence,
Pilones was already on permanent status when he was dismissed on August 21,
1978, or four days after he ceased to be a probationer.

The petitioner claims it could not have dismissed the private
respondent earlier because the x-ray examination was made only on August 17,
1978, and the results were not immediately available.  That excuse is untenable.  We note that when the petitioner had all of
six months during which to conduct such examination, it chose to wait until exactly
the last day of the probation period. 
In the light of such delay, its protestations now that reinstatement of
Pilones would prejudice public health cannot but sound hollow and
hypocritical.  By its own implied
admission, the petitioner had exposed its customers to the employee’s disease
because of its failure to examine him before entrusting him with the functions
of a “syrup man.” Its belated concern for the consuming public is
hardly persuasive, if not clearly insincere and self-righteous.

There is proof in fact that the private respondent was first
hired not on February 16, 1978, but earlier in 1977.  This is the 1977 withholding tax statement^[5]
issued for him by the petitioner itself which it does not and cannot deny.  The petitioner stresses that this is the only
evi­dence of the private respondent’s earlier service and notes that he has not
presented any co-worker to substantiate his claim.  This is perfectly
understandable.  Given the natural
reluctance of many workers to antagonize their employers, we need not wonder
why none of them testified against the petitioner.

We are satisfied that whether his employment began on February
16, 1978, or even earlier as he
claims, the pri­vate respondent was already a regular employee when he was dismissed on August 21,
1978.  As such, he could validly claim the security of tenure guaranteed to
him by the Constitution and the Labor Code.

The applicable rule on the ground for dismissal in­voked against
him is Section 8, Rule I, Book VI, of the Rules and Regulations Implementing
the Labor Code reading as follows:

“Sec. 8.  Disease as a ground
for dismissal.  – Where the employee
suffers from a disease and his continued employment is prohi­bited by law or
prejudicial to his health or to the health of his co-employees, the employer
shall not terminate his employment unless there is a certification by a
competent public health authority that the disease is of such nature or at such
a stage
that it cannot be cured within a period of six (6) months even with proper
medical treatment.  If the disease or
ailment can be cured within the period, the employer shall not terminate the
employee but shall ask the employee to take a leave. 
The employer shall reinstate such employee to his former position
immediately upon the restoration of his normal health.”

The record does not contain the certification required by the
above rule.  The medical certificate
offered by the petitioner came from its own physician, who was not a
“competent public health authority,” and merely stated the employee’s
disease, without more.  We may surmise that if the required certification was not presented,
it was because the disease was not of such a nature or seriousness that it
could not be cured within a period of six
months even with proper medical treatment.  If so, dismissal was unquestionably a severe and unlawful sanction.

It is also worth noting that the petitioner’s appli­cation for
clearance to terminate the employment of the private respondent was filed with
the Ministry of Labor only on August 28, 1978, or seven days after his
dismissal.^[6]
As the NLRC has repeatedly and correctly said, the prior clearance rule (which
was in force at that time) was not a “trivial technicality.” It
required “not just the mere filing of a petition or the mere attempt to
procure a clearance” but that “the said clearance be obtained prior
to the operative act of termination.”^[7]

We agree that there was here an attempt to circumvent the law by
separating the employee after five months’ service to prevent him from becoming
a regular employee, and then rehiring him on probation, again without security
of tenure.  We cannot permit this
subterfuge if we are to be true
to the spirit and mandate of social justice. 
On the other hand, we have also the health of the public and of the dismissed employee himself to
consider.  Hence, although we must rule in favor of his reinstatement, this must be conditioned on his fitness to
resume his work, as certified by competent authority.

We take this opportunity to reaffirm our concern for the lowly
worker who, often at the mercy of his employers, must look up to the law for
his protection.  Fittingly, that law
regards him with tenderness and even favor and always with faith and hope in
his capacity to help in shaping the nation’s future.  It is error to take him for granted.  He deserves our abiding respect.  How society treats him will determine whether
the knife in his hands shall be a caring tool for beauty and progress or an
angry weapon of defiance and revenge. 
The choice is obvious, of course. 
If we cherish him as we should, we must resolve to lighten “the
weight of centuries” of exploitation and disdain that bends his back but
does not bow his head.

WHEREFORE, the petition is DISMISSED and the temporary
restraining order of November 18, 1981, is LIFTED.  The Order of the public respondent dated July
14, 1981, is AFFIRMED, but with the modification that the backwages shall be
limited to three years only and the private respondent shall be reinstated only
upon certification by a competent public health authority that he is fit to return
to work.  Costs against the petitioner.

SO ORDERED.

Teehankee, C.J., (Chairman), Narvasa, Paras, and Gancayco, JJ., concur.

^[1]
Rollo, pp. 37-39.

^[2]
Ibid., p. 36.

^[3]
Id., p. 28.

^[4]
Annex B, p. 21.

^[5]
Rollo, pp. 7-8.

^[6]
Annex D, p. 22.

^[7]
Victor Pacularang, et al. vs.
Emelio Teves, et al., NLRC Case No. 7-1722.