Opinion

REINSTATEMENT

ATTY. SHERWIN PROSE C. CASTANEDA

LEGAL WAYS TO WIN

STORY

Last month, we won a case before the National Labor Relations Commission (NLRC), Regional Arbitration Branch (NCR), involving a case of illegal dismissal and other money claims.  The case arose from the illegal termination of our client, a security guard, by the agency.  The decision includes among others a finding that our client has been illegally dismissed, thus, the Arbiter ordered his reinstatement to his former position without loss of seniority rights and to the payment of back wages.  However, it came out that the decision was appealed to the Commission.

LAW

In the situation presented, an order for reinstatement is immediately executory.  This means that the decision of the Labor Arbiter reinstating an illegally dismissed employee is enforceable, even if the decision is appealed.  

This is provided in the third paragraph of Article 223 of the Labor Code, which provides that “the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall be immediately executor, even pending appeal.”

The provision is actually an amendment introduced by RA 6715, which took effect on March 21, 1989.  The provision means that if execution pending appeal is granted, the employee concerned shall be admitted back to work under the terms and conditions prevailing prior to his dismissal or separation.  However, instead of doing so, the employer is granted the option to merely reinstate the employee in the payroll.  This would simply mean that although not admitted back to work, the employee would nevertheless be included in the payroll and entitled to receive his salary and other benefits as if he were in fact working.

Upon rendition of the decision, the employer is supposed to choose whether to admit the worker or to reinstate him in the payroll.  The latter means, that even though not admitted to work, he is still being paid the salary prior to his dismissal.

The foregoing may sound very pleasing to dismissed workers, who need not wait for years until his case is finally decided on appeal, which in most instances will reach Supreme Court, unfortunately, some employers do not abide by the immediate execution of the reinstatement portion of the decision.  I have not encountered a situation yet, where an employer voluntarily admits the workers back to work, much less in the payroll.  This is the situation obtained in the case of the security guard mentioned earlier.

LEGAL WAYS

When we received the decision, we informed the client of the reinstatement and explained to him that it is immediately enforceable.  He then asked us, when?  I told him that we do not expect the employer to gladly accept him back to work or reinstate him in the payroll.  Neither will we expect the Arbiter to issue the same motu proprio (a decree issued by a pope acting independently and on his own initiative).

The remedy in this case, is to file a motion for issuance of a writ of execution on the reinstatement aspect before the Labor Arbiter who issued the decision.  Although, this is really not necessary if we strictly adhere to what Article 223 provides. 

Once a writ is issued, the employer has no choice but to comply with same. We can also apply the fourth paragraph of Article 223, which provides that the “Commission or Labor Arbiter shall impose reasonable penalty, including fines or censures, upon the erring parties.”

It is rather unsual that although the law provides for immediate enforcement despite appeal, the same is not strictly followed.  Unless, there is a move made by the worker illegally dismissed, the same will not be implemented for the reason cited earlier. 

I call on Congress to resolve the situation.  Instead of providing for immediate execution, it will be better if it is not, so that every party upon finding of illegal dismissal by the Arbiter will make the necessary motion to effect the reinstatement.  Otherwise, they will be waiting for the supposed immediate implementation of the same, but will not be forthcoming for the reason that we do not expect the employer to happily accede to the order of reinstatement.  Eventually, a motion will still have to be filed by the interested party to effect the return either in the same position he held or merely in the payroll.

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