Article 284. Disease as ground for
termination. An
employer may terminate the services of an employee who has been found to be
suffering from any disease and whose continued employment is prohibited by law
or is prejudicial to his health as well as the health of his co-employees:
Provided, That he is paid separation pay equivalent to at least one month
salary or to one-half month salary for every year of service, whichever is
greater, a fraction of at least six months being considered as one whole year.
What are
the requisites for the ground of disease?
The following requisites must be complied with before termination
of employment due to disease may be justified:
1. The employee is suffering from a disease;
2. His continued employment is either:
a. prohibited by law; or
b. prejudicial to his health; or
c. prejudicial to the health of his co-employees;
3. There is a certification by a competent public health
authority that the disease is of such nature or at such stage that it cannot
be cured within a period of six (6) months even with proper medical
treatment; (
4. Notice of termination based on this ground should be
served to the employee; and
5. Separation pay shall be paid to him in the amount
equivalent to at least one (1) month salary or to one-half (1/2) month salary
for every year of service, whichever is greater, a fraction of at least six (6)
months being considered as one (1) whole year.
Is a medical
certificate issued by company doctor acceptable?
A medical certificate issued by a company’s own physician is not
an acceptable certificate for purposes of terminating an employment based on
Article 284, it having been issued not by a “competent public health
authority,” the person referred to in the law. (Cebu Royal Plant [San Miguel Corporation] vs. Hon. Deputy Minister of
Labor, G. R. No. 58639, Aug. 12, 1987, 153 SCRA 38 [1987]).
What is
meant by “competent public health authority”?
“Competent public health authority” refers to a government doctor
whose medical specialization pertains to the disease being suffered by the
employee. For instance, an employee who is sick of tuberculosis should consult
a government-employed pulmonologist who is competent to make an opinion
thereon. If the employee has cardiac symptoms, the competent physician in this
case would be a cardiologist.
Medical
certificate, an indispensable requisite.
In the absence of the required certification by a competent public
health authority, the Supreme Court has consistently ruled against the validity
of the employee’s dismissal. (Cruz vs.
NLRC, G. R. No. 116384, Feb. 7, 2000).
In the 2003 case of Sy vs.
CA, [G. R. No. 142293, February 27, 2003], the High Court reiterated its earlier
ruling in Triple Eight Integrated Services, Inc. vs. NLRC, [299 SCRA 608, 614
1998], that the requirement for a medical certificate under Article 284 cannot
be dispensed with; otherwise, it would sanction the unilateral and arbitrary
determination by the employer of the gravity or extent of the employee’s
illness and thus defeat the public policy in the protection of labor.
In the 2001 case of Cathay Pacific
Airways, Ltd. vs. NLRC, [G. R. No. 141702-03, August 2, 2001], the
dismissal of the employee based on a finding that she was suffering from asthma
was declared illegal because of the absence of 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, a requirement under Section 8, Rule I, Book VI, of the Rules
to Implement the Labor Code. Here, the employee was dismissed based only on the
recommendation of its company doctors who concluded that she was afflicted with
asthma. It did not likewise show proof that the employee’s asthma could not be
cured in six (6) months even with proper medical treatment. On the contrary,
when she returned to the company clinic five (5) days after her initial
examination, the company doctor diagnosed her condition to have vastly
improved.
In General Textile, Inc. vs. NLRC, [G. R. No. 102969, April 4,
1995], the termination of the employee due to PTB sickness was declared not
justified in the absence of medical certificate issued 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.
Medical
certificate as evidence of illness
Medical certificates presented by an employee to prove (a) his
illness, the nature and the duration of the procedures performed by the dentist
on him; and (b) the period during which he was incapacitated to work are
admissible in evidence and have probative weight even if not notarized.
It is sufficient that the physician and the dentist who examined the employee,
aside from their respective letterheads, had written their respective license
numbers below their names and signatures, hence, they bear all the earmarks of
regularity in their issuance and are entitled to full probative weight. Common
sense dictates that an ordinary worker does not need to have these medical
certificates to be notarized for proper presentation to his company to prove his
ailment. It has been said that verification of documents is not necessary in
order that the said documents could be considered as substantial evidence. (Union Motor Corporation vs. NLRC, G. R. No.
159738, Dec. 9, 2004)
.
Medical
certificate issued by Labor Attache and Ministry of Public Health of Kuwait, not
sufficient.
In the 2001 case of ATCI Overseas Corporation vs. CA, [G. R. No.
143949, August 9, 2001], involving two (2) overseas Filipino workers who were
recruited by the Ministry of Public Health of Kuwait to work as dental
hygienists in that country for a period of 2 years but who were terminated
after working for only two months based on alleged tuberculosis and heart
disease, the Supreme Court, in declaring the termination as illegal, ruled that
there is nothing in the records to show that petitioner complied with Sec. 8,
Rule I, Book VI of the Rules to Implement the Labor Code before private
respondent-doctors were dismissed. In the proceedings before the POEA,
petitioner did not present any certification whatsoever. It was only when the
case was appealed to the NLRC that petitioner belatedly introduced in evidence
a letter from the Ministry stating that private respondents were found to be
positive for tuberculosis and heart disease. In addition, petitioner presented
a certification issued by the Philippine labor attache attesting to the fact
that private respondents were subjected to a medical examination after their
arrival in Kuwait and were found to be unfit for employment due to lung defects.
The letter from the Ministry and the certification by the Philippine labor
attache fall short of the demands of the Omnibus Rules. First of all, there is no
finding that the disease allegedly afflicting private respondents is of
such nature or at such a stage that it cannot be cured within a period of
six (6) months with proper medical treatment. Secondly, even assuming that
the letter from the Ministry complied with the Omnibus Rules, petitioner has not
proven that the same was presented to private respondents prior to their
termination. Rather, the letter appears to have been an afterthought,
a belated, yet grossly unsuccessful attempt at compliance with Philippine laws,
produced by petitioner after an adverse judgment was rendered against it by the
POEA. Clearly, Sec. 8, Rule I, Book VI, of the Omnibus Rules was not complied
with, thus making private respondents’ dismissal illegal.
Who
should procure the certificate?
It devolves upon the employer the obligation to obtain a
certificate from a competent public authority that the employee’s disease is at
such stage or of such nature that it cannot be cured within six (6) months even
with prior medical treatment. It is the employer, and not the employee, who has
the burden of proof to justify that the termination was supported by said
certificate. Clearly, it is only where there is such prior certification that
the employee could be validly terminated from his job. (Tan vs. NLRC, G. R. No. 116807, April 14, 1997, 271 SCRA 216; See also
Phil. Employ Services and Resources, Inc. vs. Paramio, G. R. No. 144786, April
15, 2004; Sy vs. CA, supra).
Who has
the burden of proving the existence of a medical certificate?
The burden of proving the existence of such a medical certificate
required under the law is upon the employer, not the employee. (ATCI Overseas Corporation vs. CA, G. R. No.
143949, Aug. 9, 2001; Tan vs. NLRC, 271 SCRA 216 [1997]; Cebu Royal Plant vs.
Deputy Minister of Labor, supra).
Employee
dismissed without the medical certificate is entitled to moral and exemplary
damages.
In the same 2001 case of Cathay Pacific Airways [supra], because
the employer summarily dismissed the employee from the service based only on
the recommendation of its medical officers, in effect, failing to observe the
provision of the Labor Code which requires a certification by a competent
public health authority, it was held that the award of moral and exemplary
damages to the employee should be affirmed. Notably, the decision to dismiss
the employee was reached after a single examination only. The employer’s
medical officers recommended the employee’s dismissal even after having
diagnosed her condition to have vastly improved. It did not make even a token
offer for the employee to take a leave of absence as what it provided in its
Contract of Service. The employer is presumed to know the law and the
stipulation in its Contract of Service with the employee.
Notice to
employee and the DOLE regarding termination due to disease, necessary.
Although Article 284 does not require the service of notice to the
employee, however, it is necessary under the following circumstances, if only
to document the procedure taken by the employer prior to terminating the
employment:
1. Notice to the sick employee to submit himself for medical
examination by a competent public health authority to determine not only his
fitness for work but, more importantly, for the purpose of having his sickness
certified that it is of such nature or at such a stage that it can be cured
within a period of six (6) months with proper medical treatment; and
2. Notice of termination in case the certification of the
competent public health authority is to the effect that the sickness 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.
The second notice above should be given not only to the employee
but also to the Department of Labor and Employment, in accordance with the
ruling in the case of Agabon vs. NLRC,
[G.R. No. 158693, November 17, 2004], where the Supreme Court opined that
if the dismissal is based on authorized causes under Articles 283 and 284, the
employer must give the employee and the Department of Labor and Employment
written notices thirty (30) days prior to the effectivity of his separation.
Is hearing
required in case of termination due to disease?
Being an authorized cause, as distinguished from just cause,
hearing is not necessary to be conducted by the employer prior to the
termination of employment of the sick employee.
Separation
pay in case of lawful dismissal based on disease.
The separation pay of an employee terminated on the ground of
disease is equivalent to at least one (1) month salary or to one-half (½) month
salary for every year of service, whichever is greater, a fraction of at least
six (6) months being considered as one (1) whole year. (Article 284, Labor Code; Baby Bus, Inc. vs. Minister of Labor, G. R.
No. 54223, Feb. 26, 1988).
Disability
distinguished from Disease
Disability should not be confused with disease. Disability itself,
even if permanent, is not a ground for termination. The Magna Carta for
Disabled Persons prohibits the termination of a disabled employee based on
disability alone. This constitutes act of discrimination, a criminal offense
for which fine and/or imprisonment may be imposed. (Magna Carta for Disabled
Persons)
Right to
reinstatement if disease is curable with six months
If the disease or ailment can be cured within six months, the
employer shall not terminate the employee but shall ask the employee to take a
leave of absence. The employee is entitled to be reinstated to his former position
immediately upon the restoration of his normal health. (
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