G.R. No. 160303. September 13, 2007.

*
Same; Illegal Dismissal; Backwages; The principle of a “fair
day’s wage for a fair day’s labor” remains as the basic factor in
G & S TRANSPORT CORPORATION, petitioner, vs. TITO
determining the award of backwages—if there is no work performed
S. INFANTE, MELOR BORBO, and DANILO by the employee there can be no wage or pay unless, of course, the
CASTAÑEDA, respondents. laborer was able, willing and ready to work but was illegally locked
out, suspended or dismissed or otherwise illegally prevented from
Actions; Certiorari; As a general rule, factual issues are not
work-
proper subjects for certiorari which is limited to the issue of 290
jurisdiction and grave abuse of discretion.—A petition for certiorari
is available when any tribunal, board or officer exercising judicial or 29 SUPREME COURT
quasijudicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or 0 REPORTS ANNOTATED
excess of jurisdiction. As a general rule, factual issues are not proper G & S Transport Corporation vs.
subjects for certiorari which is limited to the issue of jurisdiction and
grave abuse of discretion. It does not include an inquiry into the Infante
correctness of the evaluation of evidence which was the basis of the ing.—With respect to backwages, the principle of a “fair day’s
labor agency in reaching its conclusion. Neither is it for the Court of wage for a fair day’s labor” remains as the basic factor in determining
Appeals nor this Court to re-examine conflicting evidence, re- the award thereof. If there is no work performed by the employee
evaluate the credibility of witnesses or substitute the findings of fact there can be no wage or pay unless, of course, the laborer was able,
of an administrative body which has gained expertise in its willing and ready to work but was illegally locked out, suspended or
specialized field. dismissed or otherwise illegally prevented from working. While it
was found that respondents expressed their intention to report back to
Labor Law; Strikes; Sit-Down Strikes; Words and Phrases; A work, the latter exception cannot apply in this case. In Philippine
valid strike presupposes the existence of a labor dispute; A sit-down Marine Officers’ Guild v. Compañia Maritima, 22 SCRA 1113
strike, or more aptly termed a sympathetic strike, is that where the (1968), as affirmed in Philippine Diamond Hotel and Resort v.
striking employees have no demands or grievances of their own, but Manila Diamond Hotel Employees Union, 494 SCRA 195 (2006), the
they strike for the purpose of directly or indirectly aiding others, Court stressed that for this exception to apply, it is required that the
without direct relation to the advancement of the interest of the strike be legal, a situation that does not obtain in the case at bar.
strikers.—Article 212 of the Labor Code defines strike as any Under the circumstances, respondents’ reinstatement without
temporary stoppage of work by the concerted action of employees as backwages suffices for the appropriate relief. If reinstatement is no
a result of an industrial or labor dispute. A valid strike therefore longer possible, given the lapse of considerable time from the
presupposes the existence of a labor dispute. The strike undertaken by occurrence of the strike, the award of separation pay of one (1) month
respondents took the form of a sit-down strike, or more aptly termed salary for each year of service, in lieu of reinstatement, is in order.
as a sympathetic strike, where the striking employees have no
demands or grievances of their own, but they strike for the purpose of Same; Same; Reinstatement; Separation Pay; While
directly or indirectly aiding others, without direct relation to the reinstatement as the standard relief for an employee illegally
advancement of the interest of the strikers. It is indubitable that an dismissed, however, in the instant case, where seventeen (17) years
illegal strike in the form of a sit-down strike occurred in petitioner’s have elapsed, an award of separation pay equivalent to one (1)
prem- month pay for every year of service, in lieu of reinstatement, would
_______________ be deemed more practical and appropriate to all the parties
concerned.—It is of no moment that petitioner’s concession was no
*
 SECOND DIVISION. longer exclusive. No evidence exists that the employment of
respondents was in any way conditioned on petitioner’s obstention of
289
an exclusive contract from NAIA. The fact remains that petitioner
still operates a taxi concession in NAIA and that logically requires
VOL. 533, SEPTEMBER 289 the service of taxi drivers, the same position held by respondents
13, 2007 back in 1990. Section 4, Rule I of the Rules Implementing Book VI
of the Labor Code provides: SEC. 4. Reinstatement to former
G & S Transport Corporation vs. position.—(a) An employee who is separated from work without just
Infante cause shall be reinstated to his former position, unless such position
ises, as a show of sympathy to the two employees who were no longer exists at the time of his reinstatement, in which case he
dismissed by petitioner. Apart from the allegations in its complaint shall be given a substantially equivalent position in the same
for illegal strike filed before the Labor Arbiter, petitioner presented establishment without loss of seniority rights. The above-quoted rule
the affidavits and testimonies of their other employees which confirm enunciates reinstatement as the standard relief. However, in this case,
the participation of respondents in the illegal strike. Petitioner has seventeen (17) years have elapsed since respondents were illegally
sufficiently established that respondents remained in the work dismissed. In Association of Independent Unions in the Philippines v.
premises in the guise of waiting for orders from management to NLRC, 305 SCRA 219 (1999), where
resume operations when, in fact, they were actively participating in 291
the illegal strike.
VOL. 533, SEPTEMBER 291
Same; Same; While knowingly participating in an illegal
strike is a valid ground for termination of employment of a union
13, 2007
officer, mere participation in an illegal strike is not a sufficient G & S Transport Corporation vs.
ground for termination of the services of the union members—for an Infante
ordinary, rank-and-file union member who participated in such a
more than eight (8) years have passed since the petitioners
strike to lose his job, it must be shown that he committed an illegal
therein staged an illegal strike and were found to have been
act during the strike.—Article 264 of the Labor Code, in providing
unlawfully terminated, an award of separation pay equivalent to one
for the consequences of an illegal strike, makes a distinction between
(1) month pay for every year of service, in lieu of reinstatement, was
union officers and members who participated therein. Thus,
deemed more practical and appropriate to all the parties concerned.
knowingly participating in an illegal strike is a valid ground for
We adopt the same tack in this case.
termination of employment of a union officer. The law, however,
treats differently mere union members. Mere participation in an
illegal strike is not a sufficient ground for termination of the services PETITION for review on certiorari of the decision and
of the union members. The Labor Code protects an ordinary, rank- resolution of the Court of Appeals.
and-file union member who participated in such a strike from losing
his job, provided that he did not commit an illegal act during the The facts are stated in the opinion of the Court.
strike. It can be gleaned from the aforecited provision of law in point,      Valentino V. Dionela for petitioner.
however, that an ordinary striking employee cannot be terminated for      Public Attorney’s Office for respondents.
mere participation in an illegal strike. There must be proof that he
committed illegal acts during the strike and the striker who
participated in the commission of illegal act must be identified. Proof TINGA, J.:
beyond reasonable doubt is not required. Substantial evidence
available under the attendant circumstances, which may justify the This petition for review seeks the reversal of the decision  and 1

imposition of the penalty of dismissal, may suffice. resolution  of the Court of Appeals in CA-G.R. SP No.
2
71472 dated 27 June 2003 and 8 October 2003, respectively. so. On 22 May 1990, petitioner filed an action for illegal strike
The assailed judgment reversed and set aside the decision  of 3
before the Labor Arbiter against thirty-seven (37) drivers. Two
the National Labor Relations Commission (NLRC) which days later, said drivers filed a case for illegal dismissal against
affirmed in toto the decision of the Acting Executive Labor petitioner.
Arbiter for Adjudication Melquiades Sol D. Del Rosario In a Joint Affidavit dated 18 October 1990, Infante and
(Labor Arbiter) dated 31 May 1999. The Labor Arbiter had Borbo denied joining the alleged strike. They narrated that
ordered G & S Transport Corporation (petitioner) to pay they reported to work at the domestic airport on 16 May 1990
respondents Tito Infante (Infante), Melor Borbo (Borbo) and before 4:00 p.m. but did not find their taxi in the area. They
Danilo Castañeda (Castañeda) separation pay in lieu of proceeded to the garage at the Duty Free shop. The dispatcher
reinstatement without backwages. and the counter sales clerk were likewise not around.
Petitioner was the exclusive coupon taxi concessionaire at Thereafter, they learned about the protest of their co-workers
the Ninoy Aquino International Airport (NAIA) from 1 over the dismissal of Gonzales and Alzaga. They soon found
February 1989 to 31 January 1994 by virtue of a five-year out that the management had stopped company operation that
concession contract awarded by the Manila International afternoon but they stayed on until 1:00 a.m. They did not
Airport report for work on the following day because it was their
_______________ dayoff. On 18 May 1990, they did report for work but were
refused entry by the guard because their names did not appear
 Rollo, pp. 42-49. Penned by Associate Justice Juan Q. Enriquez, Jr. and
1

on the list of drivers allowed by petitioner to work on that day.

concurred in by Associate Justices Rodrigo V. Cosico and Hakim S.
Abdulwahid. They soon received a copy of the complaint filed by petitioner
 Id., at p. 51.
2 charging them with illegal strike. 10

 Id., at pp. 69-78. Presided by Commissioner Roy V. Señeres.

3
Castañeda, in his Affidavit dated 17 March 1995, stated
292
that he was on sick leave from 11 to 15 May 1990. He
reported for work on 16 May 1990 but was not able to perform
29 SUPREME COURT REPORTS his duties because of the protest staged by his co-workers. He
2 ANNOTATED reported back to work on the following day but he was not
G & S Transport Corporation vs. Infante _______________

Authority. Under the terms of the contract, the coupon taxi 9

 CA Rollo, p. 37.
units assigned to service arriving plane passengers would be 10
 CA Rollo, pp. 23-29.
dispatched from the garage located at the Duty Free
Compound opposite NAIA, whereas units assigned to service 294
departing plane passengers would be given their assignment 29 SUPREME COURT REPORTS
by the garage dispatcher via a two-way radio system on their 4 ANNOTATED
way back to the garage after taking arriving passengers to their
destination. 4
G & S Transport Corporation vs. Infante
Respondents in the employ of petitioner had been drivers allowed entry by the guard for having allegedly participated in
since 1 February 1989. At the time of their dismissal, they the illegal strike. 11

were assigned at the Domestic Airport from 16 to 31 May Out of the 37 complaining drivers, only seven remained as
1990 on two (2) the shifts: morning shift which starts from complainants when the case reached the Labor Arbiter,
7:00 a.m. to 4:00 p.m. and the afternoon shift from 4:00 p.m. namely: Gener Mendoza (Mendoza), Eduardo Dacanay
to 1:00 a.m. Castañeda was assigned to the morning (Dacanay), Norman Sabiniano (Sabiniano), Mario Daramayo
shift  while Infante and Borbo were assigned to the afternoon
5
(Daramayo), Borbo, Infante, and Castañeda. Others executed
shift. 6
their respective affidavits of desistance and filed the
On 5 May 1990, petitioner claimed to have received from corresponding motion to dismiss.  On 31 May 1999, the Labor
12

the NAIA Airport Taxi Service Employees Union-TUPAS Arbiter declared respondents’ concerted action as a form of an
(Union) a letter-memorandum demanding the dismissal from illegal strike, thus:
“Anent the issue of illegal strike, the records show that there was a
employment of Ricardo Gonzales (Gonzales) and Ephraim stoppage of work on May 16, 1990 at the premises of the garage of G
Alzaga (Alzaga), both drivers of petitioner on the ground that & S Transport located at the Duty Free Shop just fronting the Ninoy
they were found guilty of committing acts of disloyalty, Aquino International Airport (NAIA), brought about primarily by the
conduct unbecoming of a union member and acts inimical to dismissal of Messrs. Gonzales and Alzaga, on the account of acts of
the interest of the Union. The Union based its action on a [sic] [inimical] to the interest of G & S union. As pointed out by
petition filed by said employees calling for a local complainant G & S Transport, its Taxi drivers undertook those
election.  On 9 May 1990, the two employees were terminated
7 collective action without filing any notice of strike and taking a strike
by petitioner. 8
vote, and in violation of no strike-no lockout clause embodied in the
CBA thus making their action as illegal activity.
Upon learning of the incident, several drivers of petitioner
xxxx
stopped driving their taxi cabs apparently in sympathy with Actually when the stoppage of work occurred, there seemed to be
their dismissed colleagues. Petitioner alleged that the work no labor disputes but merely a protest of the dismissal of respondent’s
stoppage constituted an illegal strike at the work premises. leaders. Under Article 212 (D) “any temporary stoppage of work by
Furthermore, petitioner averred that various illegal acts, such the concerted action of employees must be a result of an industrial or
_______________ labor dispute.” No industrial or labor dispute, however, was existing
on May 16, 1990, since there was no pending case in any legal forum
4
 Rollo, p. 62. then.” 13

5
 CA Rollo, p. 5.
6
 Id., at p. 27. However, finding that Mendoza, Dacanay and Sabiniano had
 Records, Vol. I, p. 322-323.
not participated in the strike, the Labor Arbiter declared their
7

8
 Id., at pp. 318-321.
dismissal as illegal and ordered petitioner to pay them
293 _______________
VOL. 533, SEPTEMBER 13, 2007 293 11
 Id., at pp. 30-32.
G & S Transport Corporation vs. Infante 12
 Rollo, p. 151.
as stopping, barring and intimidating other employees wishing 13
 Id., at pp. 65-68.
to enter the work premises, were committed by the said drivers 295
that resulted in the paralyzation of petitioner’s business
VOL. 533, SEPTEMBER 13, 2007 295
operation. 9

Petitioner ordered the striking workers to return to work G & S Transport Corporation vs. Infante
but some of the drivers, including respondents, refused to do
backwages and separation pay, in lieu of reinstatement, since 23
 G.R. No. 130866, 16 September 1998; 295 SCRA 494.
petitioner had already stopped its operations on 31 January 297
1995. On the other hand, respondents Daramayo, Borbo,
Infante and Castañeda, though found to have participated in VOL. 533, SEPTEMBER 13, 2007 297
the illegal strike, were not meted out the penalty of dismissal; G & S Transport Corporation vs. Infante
instead, petitioner was ordered to pay them separation pay in looked certain relevant facts, which if properly considered
lieu of reinstatement but without backwages. 14
would justify a different conclusion, or when it erroneously
On appeal, the NLRC affirmed in toto the ruling of the misapplied a law as is obtaining in the case at bar. 24

Labor Arbiter. A petition for certiorari is available when any tribunal,

In a petition for certiorari before the Court of Appeals, board or officer exercising judicial or quasi-judicial functions
respondents assailed the NLRC decision affirming the Labor has acted without or in excess of its or his jurisdiction, or with
Arbiter’s findings: (1) that respondents had joined the illegal grave abuse of discretion amounting to lack or excess of
strike; (2) that petitioner was no longer in operation and hence, jurisdiction. As a general rule, factual issues are not proper
reinstatement could not be ordered; and (3) that respondents subjects for certiorari which is limited to the issue of
were not illegally dismissed, but were not entitled to jurisdiction and grave abuse of discretion.  It does not include
25

reinstatement and backwages. 15 an inquiry into the correctness of the evaluation of evidence
On 27 June 2003, the Court of Appeals reversed the which was the basis of the labor agency in reaching its
decisions of the NLRC and the Labor Arbiter, the dispositive conclusion. Neither is it for the Court of Appeals nor this
portion of which reads: Court to reexamine conflicting evidence, re-evaluate the
“WHEREFORE, based on the foregoing, the petition is GIVEN credibility of witnesses or substitute the findings of fact of an
DUE COURSE. The assailed Resolution and Order of the National administrative body which has gained expertise in its
Labor Relations Commission are ANNULLED and SET ASIDE. specialized field. 26

The matter is remanded to the Labor Arbiter for the computation of One question therefore arises—did the NLRC commit
backwages and such other monetary benefits awarded in accordance
grave abuse of discretion when it affirmed the findings of the
with this Decision.” 16

Executive Labor Arbiter? While only questions of law may be

The appellate court scored the Labor Arbiter because the latter entertained by this Court through a petition for review on
failed to categorically rule on the validity of respondents’ certiorari, there are, however, well-recognized exceptions such
dismissal and instead stood content in simply stating that as the instant case where the factual findings of the NLRC and
respondents should not have been meted out the severest the Court of Appeals are contradictory. A re-evaluation of the
penalty of dismissal for their inadequacies and wrongful ac- records of this case is necessary for its proper resolution. 27

_______________ The issues presented before the Executive Labor Arbiter

and the NLRC are the very same issues proffered by the
14
 Id., at p. 168. parties before this Court, which may be summed up as
15
 CA Rollo, p. 10.
16
 Rollo, p. 48.
follows: (1) whether respondents participated in the illegal
strike and
296 _______________
29 SUPREME COURT REPORTS
 Rollo, p. 195.
24

6 ANNOTATED  Muaje-Tuazon v. Wenphil Corp., G.R. No. 162447, 27 December

25

2006, 508 SCRA 87, 99.

G & S Transport Corporation vs. Infante  Cabuyoc v. Inter-Orient Navigation Shipmanagement, Inc., G.R. No.
26

tions.  The appellate court went on to declare respondents’

17
166649, 24 November 2006, 489 SCRA 468, 481.
dismissal as illegal.  Cainta Catholic School v. Cainta Catholic School Employees
27

Relying on a certification from the Securities and Union, G.R. No. 151021, 4 May 2006, 489 SCRA 468.
Exchange Commission (SEC) that petitioner was then still 298
operational, the Court of Appeals further held that the Labor 29 SUPREME COURT REPORTS
Arbiter and the NLRC gravely abused their discretion in
ordering the grant of separation pay instead of reinstatement. 18
8 ANNOTATED
Dissatisfied, petitioner filed a motion for reconsideration G & S Transport Corporation vs. Infante
of the said decision. On 8 October 2003, the Court of Appeals (2) whether the order for the payment of separation pay, in lieu
issued a resolution denying said motion for lack of merit. 19
of reinstatement without backwages, is proper.
In the instant petition, petitioner contends that the Court of Petitioner maintains that respondents knowingly and
Appeals erred when it acted as a trier of facts and ordered the deliberately participated in the illegal activities in the course
reinstatement of respondents and payment of of an illegal strike by the mere fact that they resolutely defied
backwages.  Petitioner insists that the appellate court
20
the order directing them to report back to work and continued
erroneously substituted its decision with that of the Labor to stay outside the premises, barricading the gates, heckling
Arbiter, whose finding and conclusion are in accordance with and intimidating employees who were returning to work. 28

judicial precedents.  Petitioner reiterates that extensive trial on

21
Respondents however aver that there was no iota of
the merits was held before the Labor Arbiter wherein the evidence that would show that they have trooped the line of
parties had been afforded the opportunity to present their the illegal strikers.  Assuming arguendo that they participated
29

respective witnesses and documentary evidence. Petitioner in the illegal strike, respondents argue that they should not be
stresses that findings of the Labor Arbiter, therefore, were all dismissed because there was no proof that they committed
based on facts and substantial evidence. 22
illegal acts during the strike. 30

Respondents, for their part, argue that by virtue of the In its Reply, petitioner refutes respondents’ argument and
Court’s pronouncement in St. Martin Funeral Home v. submits that evidence, such as photographs, affidavits of
NLRC,  the Court of Appeals is clothed with plenary authority
23
witnesses, and memoranda/telegrams, were presented during
to reverse the factual findings of the NLRC or other trial to prove that respondents joined the illegal strike.
quasijudicial bodies particularly when the latter’s judgment is Article 212 of the Labor Code defines strike as any
based on a misapprehension of facts when it manifestly over- temporary stoppage of work by the concerted action of
_______________ employees as a result of an industrial or labor dispute. A valid
strike therefore presupposes the existence of a labor dispute.
 Id., at pp. 46-47.
The strike undertaken by respondents took the form of a sit-
17

18
 Id., at p. 48.
19
 Id., at p. 51. down strike, or more aptly termed as a sympathetic strike,
20
 Id., at p. 25. where the striking employees have no demands or grievances
21
 Id., at p. 31. of their own, but they strike for the purpose of directly or
22
 356 Phil. 811 (1998).
indirectly aiding others, without direct relation to the
advancement of the interest of the strikers.  It is indubitable
31
respondent during the strike. Notably, no questions during the
that an illegal strike in the form of a sit-down strike occurred hearing were asked relative to the supposed illegal acts.
in petitioner’s premises, as a show of sympathy to the two Interestingly, the Labor Arbiter, the proximate trier of fact,
employees who were dismissed by petitioner. Apart from the also made no mention of the supposed illegal acts in his
allegations in its decision, thus:
_______________ “As adverted to earlier, no matter by what term the respondents
complainants used in describing their concerted action, i.e. [,] protest,
28
 Rollo, p. 30. sympathy or mere expression, their joint action have successfully
29
 Id., at p. 196. paralyzed the operations of G & S Transport, and this is considered a
30
 Id., at p. 197. strike.
31
 Azucena, Cesario A., Everyone’s Labor Code, p. 260.
_______________
299
VOL. 533, SEPTEMBER 13, 2007 299  Stamford Marketing v. Julian, G.R. No. 145496, 24 February 2004, 423
34

SCRA 633, 648.

G & S Transport Corporation vs. Infante  Asso. of Independent Unions in the Phil. v. National Labor Relations
35

complaint for illegal strike filed before the Labor Arbiter, Commission, 364 Phil. 697, 709; 305 SCRA 219, 231 (1999).
petitioner presented the affidavits and testimonies of their
301
other employees which confirm the participation of
respondents in the illegal strike. Petitioner has sufficiently VOL. 533, SEPTEMBER 13, 2007 301
established that respondents remained in the work premises in G & S Transport Corporation vs. Infante
the guise of waiting for orders from management to resume If at all, what mitigates respondent action is their honest albeit wrong
operations when, in fact, they were actively participating in belief that the course of action they have taken is correct because this
the illegal strike. is the only way they can show their oneness with their dismissed
The office telegram sent to individual respondents leaders. But as already held, their action is not the correct remedy
informing them to return to work went unheeded. Respondents because they failed to execute their course of action within the ambit
and parameters of the law. Respondents complainants should not
failed to satisfactorily explain their conspicuous absence
have been meted out the severest penalty of dismissal for their
following the day of the purported illegal strike. No record inadequacies and wrongful action. Had G & S [T]ransport been still
whatsoever was presented by Borbo and Infante to prove that operational[,] the four respondents, namely[:] Melo Borbo, Tito
17 May 1990 was their day-off. It was convenient to pass the Infante, Mario Daramayo and Danilo Castañeda, would have been
buck on petitioner by alleging that proof of their alibi is in ord[e]red to return to work sans backwages (the period of time that
petitioner’s file.  Castañeda could not even present a sick leave
32 lapse without wages being considered as penalty). But since, the
form to attest to his absence from 11-15 May 1990.  Moreover,33 company is no longer operational, then in lieu of reinstatement, said
the NLRC and the Court of Appeals appeared unanimous in complainants respondents should be paid a months salary per year of
sustaining the findings of the Labor Arbiter with respect to service, a fraction of six (6) months being considered one year.” 36

respondents’ participation in the illegal strike. The appellate It can now therefore be concluded that the acts of respondents
court’s decision dwelt on the fact that no illegal activities were do not merit their dismissal from employment because it has
committed by respondents in the course of the illegal strike, not been substantially proven that they committed any illegal
hence, reinstatement is proper. act while participating in the illegal strike. Petitioner,
Respondents’ participation in the illegal strike having been however, disavows that it terminated respondents’
established, we shall now determine the effects of their employment. It explained that by filing a complaint for illegal
proscribed acts. strike before the NLRC, it was merely seeking a declaration
Article 264 of the Labor Code, in providing for the that respondents have lost their employment status. 37

consequences of an illegal strike, makes a distinction between Respondents’ dismissal from work could not be any
union officers and members who participated therein. Thus, clearer than the refusal of petitioner to admit them back as
knowingly participating in an illegal strike is a valid ground they signified their intention to go back to work. In fact, this
for termination of employment of a union officer. The law, very act of petitioner precipitated respondents’ filing of a
however, treats differently mere union members. Mere par- complaint for illegal dismissal with a prayer for reinstatement.
_______________
With respect to backwages, the principle of a “fair day’s
32
 TSN, 3 July 1995, p. 43.
wage for a fair day’s labor” remains as the basic factor in
33
 TSN, 24 May 1995, p. 8. determining the award thereof. If there is no work performed
by the employee there can be no wage or pay unless, of
300 course, the laborer was able, willing and ready to work but
30 SUPREME COURT REPORTS was illegally locked out, suspended or dismissed or otherwise
0 ANNOTATED illegally
_______________
G & S Transport Corporation vs. Infante
ticipation in an illegal strike is not a sufficient ground for 36
 Rollo, p. 73.
termination of the services of the union members. 37
 Id., at p. 214.
The Labor Code protects an ordinary, rank-and-file union
302
member who participated in such a strike from losing his job,
provided that he did not commit an illegal act during the 30 SUPREME COURT REPORTS
strike.  It can be gleaned from the aforecited provision of law
34 2 ANNOTATED
in point, however, that an ordinary striking employee cannot G & S Transport Corporation vs. Infante
be terminated for mere participation in an illegal strike. There prevented from working. While it was found that respondents
must be proof that he committed illegal acts during the strike expressed their intention to report back to work, the latter
and the striker who participated in the commission of illegal exception cannot apply in this case. In Philippine Marine
act must be identified. Proof beyond reasonable doubt is not Officers’ Guild v. Compañia Maritima,  as affirmed 38

required. Substantial evidence available under the attendant in Philippine Diamond Hotel and Resort v. Manila Diamond
circumstances, which may justify the imposition of the penalty Hotel Employees Union,  the Court stressed that for this
39

of dismissal, may suffice. 35

exception to apply, it is required that the strike be legal, a

In the case at bar, this Court is not convinced that the situation that does not obtain in the case at bar.
affidavits of petitioner’s witnesses constitute substantial Under the circumstances, respondents’ reinstatement
evidence to establish that illegal acts were committed by without backwages suffices for the appropriate relief. If
respondents. Nowhere in their affidavits did these witnesses reinstatement is no longer possible, given the lapse of
cite the particular illegal acts committed by each individual considerable time from the occurrence of the strike, the award
of separation pay of one (1) month salary for each year of petitioners therein staged an illegal strike and were found to
service, in lieu of reinstatement, is in order. have been unlawfully terminated, an award of separation pay
The Court of Appeals, in ordering reinstatement, relied on equivalent to one (1) month pay for every year of service, in
the SEC certification that petitioner was then still lieu of reinstatement, was deemed more practical and
operational, viz.: appropriate to all the parties concerned. We adopt the same
“Petitioners in this petition attached a certification from the Securities tack in this case.
and Exchange Commission that private respondent is still operational In sum, the resolution and order of the NLRC, which
as of August 6, 1999. Private respondent did not deny the adopted the findings of the Labor Arbiter, are in accordance
certification. Since petitioners’ employment with private respondent
with law and jurisprudence. Consequently, the Court of
was not conditional on private respondents’ concession at the NAIA,
it is grave abuse of discretion for the Labor Arbiter and the NLRC to
Appeals erred in granting respondents’ petition for certiorari,
order the grant of separation pay instead of reinstatement.” 40
there being no grave abuse of discretion on the part of the
NLRC.
Petitioner asserts that the “belated” certification issued by the WHEREFORE, the petition is GRANTED. The
SEC bears no value to respondents’ reinstatement because the challenged Decision dated 27 June 2003 and Resolution dated
employment of respondents was conditioned on the 8 October 2003 of the Court of Appeals in CA-G.R. SP No.
_______________ 71472 are REVERSED AND SET ASIDE. The Decision
dated 15 October 2001 of the NLRC, which affirmed that of
 131 Phil. 218; 22 SCRA 1113 (1968).
the Labor Arbiter, is REINSTATED.
38

 Philippine Diamond Hotel and Resort v. Manila Diamond Hotel

39

Employees Union, G.R. No. 158075, 30 June 2006, 494 SCRA 195. SO ORDERED.

 Supra note 15.
40
     Quisumbing (Chairperson), Carpio, Carpio-Morales 
and Velasco, Jr., JJ., concur.
303
VOL. 533, SEPTEMBER 13, 2007 303 Petition granted, challenged decision and resolution
G & S Transport Corporation vs. Infante reversed and set aside.
_______________
subsistence of petitioner’s concession with NAIA but which
had already been terminated in 1995. 41
44
 G.R. No. 120505, 25 March 1999, 305 SCRA 219, 235.
Respondents counter that petitioner and Avis Coupon Taxi
are one and the same company and that it is of public 305
knowledge that Avis Coupon Taxi still continues to be the VOL. 533, SEPTEMBER 13, 2007 305
exclusive concessionaire of NAIA at that time. Moreover, Office of the Ombudsman vs. Santiago
respondents deny that their employment was conditioned on Notes.—The right of government employees to organize is
petitioner’s concession with NAIA. limited only to the formation of unions or associations,
The SEC has certified that G & S Transport Corporation without including the right to strike. (Bangalisan vs. Court of
was registered on 5 January 1972 for a period of fifty (50) Appeals, 276 SCRA 619 [1997])
years and as of 6 August 1999, no document showing its It has long been settled that the mass actions of
dissolution had been filed.  Furthermore, the personnel
42

September/October 1990 staged by Metro Manila public

manager of petitioner verified that Avis Coupon Taxi and G & school teachers amounted to a strike in every sense of the
S Transport Corporation are one and the same.  These 43

term. (Alipat vs. Court of Appeals, 308 SCRA 781 [1999])

documents pointedly indicate that petitioner has not ceased
operations. Petitioner cannot seek refuge behind the mere ——o0o——
assertion that respondents’ employment is conditioned on the
five-year concession with NAIA. No employment contract
was presented to support such fact. Petitioner in fact even
admitted that it obtained another concession from NAIA in
2000.
It is of no moment that petitioner’s concession was no
longer exclusive. No evidence exists that the employment of
respondents was in any way conditioned on petitioner’s
obstention of an exclusive contract from NAIA. The fact
remains that petitioner still operates a taxi concession in NAIA
and that logically requires the service of taxi drivers, the same
position held by respondents back in 1990. Section 4, Rule I of
the Rules Implementing Book VI of the Labor Code provides:
“SEC. 4. Reinstatement to former position.—(a) An employee who is
separated from work without just cause shall be reinstated to his
former position, unless such position no longer exists at the time of
his reinstatement, in which case he shall be given a substantially
_______________

41
 Id., at p. 33.
42
 CA Rollo, p. 147.
43
 Id., at p. 148.

304
30 SUPREME COURT REPORTS
4 ANNOTATED
G & S Transport Corporation vs. Infante
equivalent position in the same establishment without loss of
seniority rights.”

The above-quoted rule enunciates reinstatement as the

standard relief. However, in this case, seventeen (17) years
have elapsed since respondents were illegally dismissed.
In Association of Independent Unions in the Philippines v.
NLRC,  where more than eight (8) years have passed since the
44