THIRD DIVISION

[G.R. No. 152329. April 22, 2003]

ALEJANDRO
ROQUERO, petitioner, vs.
INC., respondent.

PHILIPPINE

AIRLINES,

DECISION
PUNO, J.:

Brought up on this Petition for Review is the decision of the Court of Appeals
dismissing Alejandro Roquero as an employee of the respondent Philippine Airlines, Inc.
Roquero, along with Rene Pabayo, were ground equipment mechanics of
respondent Philippine Airlines, Inc. (PAL for brevity). From the evidence on record, it
appears that Roquero and Pabayo were caught red-handed possessing and
using Methampethamine Hydrochloride or shabu in a raid conducted by PAL security
officers and NARCOM personnel.
The two alleged that they did not voluntarily indulge in the said act but were
instigated by a certain Jojie Alipato who was introduced to them by Joseph Ocul,
Manager of the Airport Maintenance Division of PAL. Pabayo alleged that Alipato often
bragged about the drugs he could smuggle inside the company premises and invited
other employees to take the prohibited drugs. Alipato was unsuccessful, until one day,
he was able to persuade Pabayo to join him in taking the drugs. They met Roquero
along the way and he agreed to join them. Inside the company premises, they locked
the door and Alipato lost no time in preparing the drugs to be used. When they started
the procedure of taking the drugs, armed men entered the room, arrested Roquero and
Pabayo and seized the drugs and the paraphernalia used. Roquero and Pabayo were
subjected to a physical examination where the results showed that they were positive of
drugs. They were also brought to the security office of PAL where they executed written
confessions without the benefit of counsel.
[1]

[2]

On March 30, 1994, Roquero and Pabayo received a notice of administrative

charge for violating the PAL Code of Discipline. They were required to answer the
charges and were placed under preventive suspension.
[3]

Roquero and Pabayo, in their reply to notice of administrative charge, assailed

their arrest and asserted that they were instigated by PAL to take the drugs. They
argued that Alipato was not really a trainee of PAL but was placed in the premises to
instigate the commission of the crime. They based their argument on the fact that
Alipato was not arrested. Moreover, Alipato has no record of employment with PAL.
[4]

In a Memorandum dated July 14, 1994, Roquero and Pabayo were dismissed by
PAL. Thus, they filed a case for illegal dismissal.
[5]

[6]

In the Labor Arbiters decision, the dismissal of Roquero and Pabayo was upheld.
The Labor Arbiter found both parties at fault PAL for applying means to entice the
complainants into committing the infraction and the complainants for giving in to the
temptation and eventually indulging in the prohibited activity. Nonetheless, the Labor
Arbiter awarded separation pay and attorneys fees to the complainants.
[7]

While the case was on appeal with the National Labor Relations Commission
(NLRC), the complainants were acquitted by the Regional Trial Court (RTC) Branch 114,
Pasay City, in the criminal case which charged them with conspiracy for possession
and use of a regulated drug in violation of Section 16, Article III of Republic Act 6425,
on the ground of instigation.
The NLRC ruled in favor of complainants as it likewise found PAL guilty of
instigation. It ordered reinstatement to their former positions but without backwages.
Complainants did not appeal from the decision but filed a motion for a writ of
execution of the order of reinstatement. The Labor Arbiter granted the motion but PAL
refused to execute the said order on the ground that they have filed a Petition for
Review before this Court. In accordance with the case of St. Martin Funeral Home vs.
NLRC and Bienvenido Aricayos, PALs petition was referred to the Court of Appeals.
[8]

[9]

[10]

[11]

During the pendency of the case with the Court of Appeals, PAL and Pabayo filed a
Motion to Withdraw/Dismiss the case with respect to Pabayo, after they voluntarily
entered into a compromise agreement. The motion was granted in a Resolution
promulgated by the Former Thirteenth Division of the Court of Appeals on January 29,
2002.
[12]

[13]

The Court of Appeals later reversed the decision of the NLRC and reinstated the
decision of the Labor Arbiter insofar as it upheld the dismissal of Roquero. However, it
denied the award of separation pay and attorneys fees to Roquero on the ground that
one who has been validly dismissed is not entitled to those benefits.
[14]

The motion for reconsideration by Roquero was denied. In this Petition for Review
on Certiorari under Rule 45, he raises the following issues:

1.

Whether or not the instigated employee shall be solely responsible for

an action arising from the instigation perpetrated by the employer;

2.

Can the executory nature of the decision, more so the reinstatement

aspect of a labor tribunals order be halted by a petition having been filed
in higher courts without any restraining order or preliminary injunction
having been ordered in the meantime?

3.

Would the employer who refused to reinstate an employee despite a writ

duly issued be held liable to pay the salary of the subject employee from

the time that he was ordered reinstated up to the time that the reversed
decision was handed down?
[15]

There is no question that petitioner Roquero is guilty of serious misconduct for

possessing and using shabu. He violated Chapter 2, Article VII, section 4 of the PAL
Code of Discipline which states:

Any employee who, while on company premises or on duty, takes or is under the
influence of prohibited or controlled drugs, or hallucinogenic substances or narcotics
shall be dismissed.
[16]

Serious misconduct is defined as the transgression of some established and

definite rule of action, a forbidden act, a dereliction of duty, willful in character, and
implies wrongful intent and not mere error in judgment. For serious misconduct to
warrant the dismissal of an employee, it (1) must be serious; (2) must relate to the
performance of the employees duty; and (3) must show that the employee has become
unfit to continue working for the employer.
[17]

[18]

It is of public knowledge that drugs can damage the mental faculties of the user.
Roquero was tasked with the repair and maintenance of PALs airplanes. He cannot
discharge that duty if he is a drug user. His failure to do his job can mean great loss of
lives and properties. Hence, even if he was instigated to take drugs he has no right to
be reinstated to his position. He took the drugs fully knowing that he was on duty and
more so that it is prohibited by company rules. Instigation is only a defense against
criminal liability. It cannot be used as a shield against dismissal from employment
especially when the position involves the safety of human lives.
Petitioner cannot complain he was denied procedural due process. PAL complied
with the twin-notice requirement before dismissing the petitioner. The twin-notice rule
requires (1) the notice which apprises the employee of the particular acts or omissions
for which his dismissal is being sought along with the opportunity for the employee to air
his side, and (2) the subsequent notice of the employers decision to dismiss him. Both
were given by respondent PAL.
[19]

II

Article 223 (3rd paragraph) of the Labor Code, as amended by Section 12 of

Republic Act No. 6715, and Section 2 of the NLRC Interim Rules on Appeals under RA
No. 6715, Amending the Labor Code, provide that an order of reinstatement by the
Labor Arbiter is immediately executory even pending appeal. The rationale of the law
has been explained in Aris (Phil.) Inc. vs. NLRC:
[20]

[21]

[22]

[23]

In authorizing execution pending appeal of the reinstatement aspect of a decision of

the Labor Arbiter reinstating a dismissed or separated employee, the law itself has laid
down a compassionate policy which, once more, vivifies and enhances the provisions
of the 1987 Constitution on labor and the working man.

xxx

xxx

xxx

These duties and responsibilities of the State are imposed not so much to express
sympathy for the workingman as to forcefully and meaningfully underscore labor as a
primary social and economic force, which the Constitution also expressly affirms with
equal intensity. Labor is an indispensable partner for the nations progress and
stability.
xxx

xxx

xxx

x x x In short, with respect to decisions reinstating employees, the law itself has
determined a sufficiently overwhelming reason for its execution pending appeal.
xxx

xxx

xxx

x x x Then, by and pursuant to the same power (police power), the State may
authorize an immediate implementation, pending appeal, of a decision reinstating a
dismissed or separated employee since that saving act is designed to stop, although
temporarily since the appeal may be decided in favor of the appellant, a continuing
threat or danger to the survival or even the life of the dismissed or separated employee
and his family.
The order of reinstatement is immediately executory. The unjustified refusal of the
employer to reinstate a 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. Unless there is a restraining order issued, it is ministerial upon the Labor
Arbiter to implement the order of reinstatement. In the case at bar, no restraining order
was granted. Thus, it was mandatory on PAL to actually reinstate Roquero or reinstate
him in the payroll. Having failed to do so, PAL must pay Roquero the salary he is
entitled to, as if he was reinstated, from the time of the decision of the NLRC until the
finality of the decision of this Court.
[24]

We reiterate the rule that technicalities have no room in labor cases where the
Rules of Court are applied only in a suppletory manner and only to effectuate the
objectives of the Labor Code and not to defeat them. Hence, 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 dismissed employee during the
period of appeal until reversal by the higher court. On the other hand, if the employee
has been reinstated during the appeal period and such reinstatement order is reversed
with finality, the employee is not required to reimburse whatever salary he received for
he is entitled to such, more so if he actually rendered services during the period.
[25]

IN VIEW WHEREOF, the dismissal of petitioner Roquero is AFFIRMED, but

respondent PAL is ordered to pay the wages to which Roquero is entitled from the time
the reinstatement order was issued until the finality of this decision.

SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

[1]

Rollo, pp. 28-30.

[2]

Ibid.; Records, p. 40.

[3]

Records, pp. 68-71, 93-96.

[4]

Id. at pp. 72-85, 97-110.

[5]

Supra note 1.

[6]

Although both Roquero and Pabayo filed the illegal dismissal case, only Roquero brought this petition
for review because Pabayo agreed to monetarily settle with PAL during the pendency of the case.

[7]

Rollo, pp. 60-61.

[8]

Id. at 75-77.

[9]

Id. at 80.

[10]

G.R. No. 130866, September 16, 1998.

[11]

Records, p. 234.

[12]

Id. at 249.

[13]

Id. at 275-278.

[14]

Id. at 36.

[15]

Id. at 15.

[16]

Rollo, p. 35.

[17]

Austria vs. NLRC, 312 SCRA 410 (1999).

[18]

Philippine Aeolus Automotive United Corporation vs. NLRC, 331 SCRA 237 (2000).

[19]

Skippers Pacific, Inc., and Skippers Maritime Services, Ltd., vs. Manuel V. Vera (deceased), substituted
by Delfa F. Mira and Anne Marie F. Mira and the Court of Appeals, G.R. No. 144314, November
21, 2002.

[20]

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, 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.

[21]

March 21, 1989.

[22]

Section 2. Order of Reinstatement and Effect of Bond In so far as the reinstatement aspect is
concerned, the decision of the Labor Arbiter reinstating a dismissed or separated employee shall
immediately be executory even pending appeal. x x x.

[23]

200 SCRA 246 (1991).

[24]

Philippine Rabbit Bus Lines, Inc. vs. NLRC, 306 SCRA 151 (1999), citing Medina vs. Consolidated
Broadcasting System, 222 SCRA 707 (1993).

[25]

Ibid.