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Case Digest: Bergonia, Jr., et al. v.

South East
Asian Airlines & Cornier
G.R. No. 195227 : April 21, 2014
FROILAN M. BERGONIO JR., ET AL., Petitioners, v. SOUTH EAST ASIAN AIRLINES
AND IRENE CORNIER, Respondents.
BRION, J.:
FACTS:
On April 30, 2004, the petitioners filed before the LA a complaint for illegal dismissal and
illegal suspension with prayer for reinstatement against respondents South East Asian
Airlines (SEAIR) and Irene Dornier as SEAIRs President (collectively, the respondents).
In a decision dated May 31, 2005, the LA found the petitioners illegally dismissed and
ordered the respondents, among others, to immediately reinstate the petitioners with full
backwages. The respondents received their copy of this decision on July 8, 2005.
On August 20, 2005, the petitioners filed before the LA a Motion for issuance of Writ of
Execution for their immediate reinstatement.
During the scheduled pre-execution conference held on September 14, 2005, the
respondents manifested their option to reinstate the petitioners in the payroll. The payroll
reinstatement, however, did not materialize. Thus, on September 22, 2005, the petitioners
filed before the LA a manifestation for their immediate reinstatement.
On October 3, 2005, the respondents filed an opposition to the petitioners motion for
execution. They claimed that the relationship between them and the petitioners had already
been strained because of the petitioners threatening text messages, thus precluding the
latters reinstatement.
On October 7, 2005, the LA granted the petitioners motion and issued a writ of execution.
The respondents moved to quash the writ of execution with a prayer to hold in abeyance the
implementation of the reinstatement order. They maintained that the relationship between
them and the petitioners had been so strained that reinstatement was no longer possible.
The October 7, 2005 writ of execution was returned unsatisfied. In response, the petitioners
filed a motion for re-computation of accrued wages, and, on January 25, 2006, a motion for
execution of the re-computed amount. On February 16, 2006, the LA granted this motion
and issued an alias writ of execution.
On February 21, 2006, the respondents issued a Memorandum directing the petitioners to
report for work on February 24, 2006. The petitioners failed to report for work on the
appointed date. On February 28, 2006, the respondents moved before the LA to suspend
the order for the petitioners reinstatement.
Meanwhile, the respondents appealed with the NLRC the May 31, 2005 illegal dismissal
ruling of the LA.
In an order dated August 15, 2006, the NLRC dismissed the respondents appeal for nonperfection. The NLRC likewise denied the respondents motion for reconsideration in its
November 29, 2006 resolution, prompting the respondents to file before the CA a petition for
certiorari.

The NLRC issued an Entry of Judgment on February 6, 2007 declaring its November 29,
2006 resolution final and executory. On December 18, 2007, the CA rendered its decision
(on the illegal dismissal ruling of the LA) partly granting the respondents petition. The CA
declared the petitioners dismissal valid and awarded them P30,000.00 as nominal damages
for the respondents failure to observe due process.
The records show that the petitioners appealed the December 18, 2007 CA decision with
this Court. In a resolution dated August 4, 2008, the Court denied the petition. The Court
likewise denied the petitioners subsequent motion for reconsideration, and thereafter issued
an Entry of Judgment certifying that its August 4, 2008 resolution had become final and
executory on March 9, 2009.
On January 31, 2008, the petitioners filed with the LA an Urgent Ex-Parte Motion for the
Immediate Release of the Garnished Amount.
In its March 13, 2008 order, the LA granted the petitioners motion; it directed MetrobankSan Lorenzo to release the P1,900,000.00 garnished amount. The LA found valid and
meritorious the respondents claim for accrued wages in view of the respondents refusal to
reinstate the petitioners despite the final and executory nature of the reinstatement aspect
of its (LAs) May 31, 2005 decision. The LA noted that as of the December 18, 2007 CA
decision (that reversed the illegal dismissal findings of the LA), the petitioners accrued
wages amounted to P3,078,366.33.
The NLRC affirmed in toto the LAs March 13, 2008 order. The NLRC afterwards denied the
respondents motion for reconsideration for lack of merit.
The respondents assailed the July 16, 2008 decision and September 29, 2009 resolution of
the NLRC via a petition for certiorari filed with the CA.
The CA granted the respondents petition.18 It reversed and set aside the July 16, 2008
decision and the September 29, 2009 resolution of the NLRC and remanded the case to the
Computation and Examination Unit of the NLRC for the proper computation of the
petitioners accrued wages, computed up to February 24, 2006.
The CA agreed that the reinstatement aspect of the LAs decision is immediately executory
even pending appeal, such that the employer is obliged to reinstate and pay the wages of
the dismissed employee during the period of appeal until the decision (finding the employee
illegally dismissed including the reinstatement order) is reversed by a higher court.
ISSUES:

1) Did the CA correctly determine whether the NLRC committed grave abuse of discretion
in ruling on the case?

2) Whether the petitioners may recover the accrued wages prior to the CAs reversal of the
LAs May 31, 2005 decision.

HELD:

Article 223 (now Article 229) of the Labor Code governs appeals from, and the execution of,
the LAs decision. Pertinently, paragraph 3, Article 223 of the Labor Code provides:
Article 223. APPEAL

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.
Under paragraph 3, Article 223 of the Labor Code, the LAs order for the reinstatement of an
employee found illegally dismissed is immediately executory even during pendency of the
employers appeal from the decision. Under this provision, the employer must reinstate the
employee either by physically admitting him under the conditions prevailing prior to his
dismissal, and paying his wages; or, at the employers option, merely reinstating the
employee in the payroll until the decision is reversed by the higher court. Failure of the
employer to comply with the reinstatement order, by exercising the options in the
alternative, renders him liable to pay the employees salaries.
Otherwise stated, a dismissed employee whose case was favorably decided by the LA is
entitled to receive wages pending appeal upon reinstatement, which reinstatement is
immediately executory. Unless the appellate tribunal issues a restraining order, the LA is
duty bound to implement the order of reinstatement and the employer has no option but to
comply with it.
Moreover, and equally worth emphasizing, is that an order of reinstatement issued by the
LA is self-executory, i.e., the dismissed employee need not even apply for and the LA need
not even issue a writ of execution to trigger the employers duty to reinstate the dismissed
employee.
In Pioneer Texturizing Corp. v. NLRC, et. al., decided in 1997, the Court clarified once and
for all this self-executory nature of a reinstatement order. After tracing back the various
Court rulings interpreting the amendments introduced by Republic Act No. 671527 on the
reinstatement aspect of a labor decision under Article 223 of the Labor Code, the Court
concluded that to otherwise require the application for and issuance of a writ of execution as
prerequisites for the execution of a reinstatement award would certainly betray and run
counter to the very object and intent of Article 223, i.e., the immediate execution of a
reinstatement order.
In short, therefore, with respect to decisions reinstating employees, the law itself has
determined a sufficiently overwhelming reason for its immediate and automatic execution
even pending appeal. The employer is duty-bound to reinstate the employee, failing which,
the employer is liable instead to pay the dismissed employees salary. The Courts consistent
and prevailing treatment and interpretation of the reinstatement order as immediately
enforceable, in fact, merely underscores the right to security of tenure of employees that the
Constitution protects.
As we amply discussed above, an employer is obliged to immediately reinstate the
employee upon the LAs finding of illegal dismissal; if the employer fails, it is liable to pay the
salary of the dismissed employee. Of course, it is not always the case that the LAs finding
of illegal dismissal is, on appeal by the employer, upheld by the appellate court. After the
LAs decision is reversed by a higher tribunal, the employers duty to reinstate the dismissed
employee is effectively terminated. This means that an employer is no longer obliged to
keep the employee in the actual service or in the payroll. The employee, in turn, is not
required to return the wages that he had received prior to the reversal of the LAs decision.
The reversal by a higher tribunal of the LAs finding (of illegal dismissal), notwithstanding, an
employer, who, despite the LAs order of reinstatement, did not reinstate the employee
during the pendency of the appeal up to the reversal by a higher tribunal may still be held
liable for the accrued wages of the employee, i.e., the unpaid salary accruing up to the time
the higher tribunal reverses the decision. The rule, therefore, is that an employee may still

recover the accrued wages up to and despite the reversal by the higher tribunal. This
entitlement of the employee to the accrued wages proceeds from the immediate and selfexecutory nature of the reinstatement aspect of the LAs decision.
By way of exception to the above rule, an employee may be barred from collecting the
accrued wages if shown that the delay in enforcing the reinstatement pending appeal was
without fault on the part of the employer.
To determine whether an employee is thus barred, two tests must be satisfied: (1) actual
delay or the fact that the order of reinstatement pending appeal was not executed prior to its
reversal; and (2) the delay must not be due to the employers unjustified act or omission.
Note that under the second test, the delay must be without the employers fault. If the delay
is due to the employers unjustified refusal, the employer may still be required to pay the
salaries notwithstanding the reversal of the LAs decision.
As we earlier pointed out, the core issue to be resolved is whether the petitioners may
recover the accrued wages until the CAs reversal of the LAs decision. An affirmative answer
to this question will lead us to reverse the assailed CA decision for legal errors and reinstate
the NLRCs decision affirming the release of the garnished amount. Otherwise, we uphold
the CAs decision to be legally correct. To resolve this question, we apply the two-fold test.
First, the existence of delay -whether there was actual delay or whether the order of
reinstatement pending appeal was not executed prior to its reversal? We answer this test in
the affirmative.
To recall, on May 31, 2005, the LA rendered the decision finding the petitioners illegally
dismissed and ordering their immediate reinstatement. Per the records, the respondents
received copy of this decision on July 8, 2005. On August 20, 2005, the petitioners filed
before the LA a Motion for Issuance of Writ of Execution for their immediate reinstatement.
The LA issued the Writ of Execution on October 7, 2005. From the time the respondents
received copy of the LAs decision, and the issuance of the writ of execution, until the CA
reversed this decision on December 17, 2008, the respondents had not reinstated the
petitioners, either by actual reinstatement or in the payroll. This continued non-execution of
the reinstatement order in fact moved the LA to issue an alias writ of execution on February
16, 2006 and another writ of execution on April 24, 2007.
From these facts and without doubt, there was actual delay in the execution of the
reinstatement aspect of the LAs May 31, 2005 decision before it was reversed in the CAs
decision.
Second, the cause of the delay whether the delay was not due to the employers unjustified
act or omission. We answer this test in the negative; we find that the delay in the execution
of the reinstatement pending appeal was due to the respondents unjustified acts.
In reversing, for grave abuse of discretion, the NLRCs order affirming the release of the
garnished amount, the CA relied on the fact of the issuance of the February 21, 2006
Memorandum and of the petitioners failure to comply with its return-to-work directive. In
other words, with the issuance of this Memorandum, the CA considered the respondents as
having sufficiently complied with their obligation to reinstate the petitioners. And, the
subsequent delay in or the non-execution of the reinstatement order was no longer the
respondents fault, but rather of the petitioners who refused to report back to work despite
the directive.
Our careful consideration of the facts and the circumstances that surrounded the case
convinced us that the delay in the reinstatement pending appeal was due to the
respondents fault. For one, the respondents filed several pleadings to suspend the
execution of the LAs reinstatement order, i.e., the opposition to the petitioners motion for
execution filed on October 3, 2005; the motion to quash the October 7, 2005 writ of
execution with prayer to hold in abeyance the implementation of the reinstatement order;

and the motion to suspend the order for the petitioners reinstatement filed on February 28,
2006 after the LA issued the February 16, 2006 alias writ of execution. These pleadings, to
our mind, show a determined effort on the respondents part to prevent or suspend the
execution of the reinstatement pending appeal.
Another reason is that the respondents, contrary to the CAs conclusion, did not sufficiently
notify the petitioners of their intent to actually reinstate them; neither did the respondents
give them ample opportunity to comply with the return-to-work directive. We note that the
respondents delivered the February 21, 2006 Memorandum (requiring the petitioners to
report for work on February 24, 2006) only in the afternoon of February 23, 2006. Worse,
the respondents handed the notice to only one of the petitioners Pelaez who did not act in
representation of the others. Evidently, the petitioners could not reasonably be expected to
comply with a directive that they had no or insufficient notice of.
Lastly, the petitioners continuously and actively pursued the execution of the reinstatement
aspect of the LAs decision, i.e., by filing several motions for execution of the reinstatement
order, and motion to cite the respondents in contempt and re-computation of the accrued
wages for the respondents continued failure to reinstate them.
These facts altogether show that the respondents were not at all sincere in reinstating the
petitioners. These facts when taken together with the fact of delay reveal the respondents
obstinate resolve and willful disregard of the immediate and self-executory nature of the
reinstatement aspect of the LAs decision.
A further and final point that we considered in concluding that the delay was due to the
respondents fault is the fact that per the 2005 Revised Rules of Procedure of the NLRC
(2005 NLRC Rules), employers are required to submit a report of compliance within ten (10)
calendar days from receipt of the LAs decision, noncompliance with which signifies a clear
refusal to reinstate.
All told, under the facts and the surrounding circumstances, the delay was due to the acts of
the respondents that we find were unjustified. We reiterate and emphasize, Article 223,
paragraph 3, of the Labor Code mandates the employer to immediately reinstate the
dismissed employee, either by actually reinstating him/her under the conditions prevailing
prior to the dismissal or, at the option of the employer, in the payroll. The respondents'
failure in this case to exercise either option rendered them liable for the petitioners' accrued
salaiy until the LA decision was reversed by the CA on December 17, 2008. We, therefore,
find that the NLRC, in affirming the release of the garnished amount, merely implemented
the mandate of Article 223; it simply recognized as immediate and self executory the
reinstatement aspect of the LA's decision.

(Arabit vs. Jardine Pacific, Gr No. 181719, April 21, 2014)

EUGENE S. ARABIT, EDGARDO C. SADSAD, LOWELL C. FUNTANOZ,


GERARDO F. PUNZALAN, FREDDIE M. MENDOZA, EMILIO B. BELEN, VIOLETA C.
DIUMANO and MB FINANCE EMPLOYEES ASSOCIATION FFW CHAPTER
(FEDERATION OF FREE WORKERS), Petitioners,
vs.
JARDINE PACIFIC FINANCE, INC. (FORMERLY MB FINANCE), Respondent.
[G.R. No. 181719, April 21, 2014]
PRINCIPLE:
**Redundancy and Retrenchment distinguished:
The clear distinction between these two concepts was discussed in
Andrada, et al., v. NLRC, 51 citing the case of Sebuguero v. NLRC, 52 where
this Court clarified:
Redundancy exists where the services of an employee are in excess of what
is reasonably demanded by the actual requirements of the enterprise. A
position is redundant where it is superfluous, and superfluity of a position or
positions may be the outcome of a number of factors, such as over hiring of
workers, decreased volume of business, or dropping of a particular product
line or service activity previously manufactured or undertaken by the
enterprise.
Retrenchment, on the other hand, is used interchangeably with the term
"lay-off." It is the termination of employment initiated by the employer
through no fault of the employees and without prejudice to the latter,
resorted to by management during periods of business recession, industrial
depression, or seasonal fluctuations, or during lulls occasioned by lack of
orders, shortage of materials, conversion of the plant for a new production
program or the introduction of new methods or more efficient machinery, or
of automation.
TN: Guidelines in implementing redundancy (SEE BELOW)
FACTS:

Petitioners were former regular employees of respondent Jardine Pacific


Finance, Inc. (formerly MB Finance). Who were also officers and
members of MB Finance Employees Association-FFW Chapter (the
Union) ---- a legitimate labor union and the sole exclusive bargaining
agent of the employees of Jardine.
Due to financial losses, Jardine decided to reorganize and implement a
redundancy program among its employees. The petitioners were
among those affected by the redundancy program. Jardine thereafter
hired contractual employees to undertake the functions these
employees used to perform.
The Union filed a notice of strike with the National Conciliation and
Mediation Board (NCMB), questioning the termination of employment
of the petitioners who were also union officers. The Union alleged
unfair labor practice on the part of Jardine, as well as discrimination in
the dismissal of its officers and members.

There was negotiation between Union and Jardine under NCMB, and
parties reached an amicable settlement. In the settlement, the
petitioners accepted their redundancy pay without prejudice to their
right to question the legality of their dismissal with the NLRC.
Jardine paid the petitioners a separation package composed of their
severance pay, plus their grossed up transportation allowance.
On June 1, 1999, the petitioners and the Union filed a complaint
against Jardine with the NLRC for illegal dismissal and unfair labor
practice.

**Labor Arbiter - LA ruled in Unions favor. In its decision, they held that the
hiring of contractual employees to replace the petitioners directly contradicts
the concept of redundancy which involves the trimming down of the
workforce because a task is being carried out by too many people. LA
explained that the companys action was a circumvention of the right of the
petitioners to security of tenure.
- it was error for Jardine to simply lump together the seven petitioners
as employees whose positions have become redundant without explaining
why their respective positions became superfluous in relation to the other
positions and employees of the company.
**NLRC - dismissed the appeals and affirmed the LAs decision in its entirety
**CA - CA reversed the LAs and the NLRCs rulings, and granted Jardines
petition for certiorari.
- CA found that Jardines act of hiring contractual employees in
replacement of the petitioners does not run counter to the argument that
their positions are already superfluous. According to the CA, the hiring of
contractual employees is a management prerogative that Jardine has the
right to exercise. In the absence of any showing of malice or arbitrariness on
the part of Jardine in implementing its redundancy program, the courts must
not interfere with the companys exercise of a bona fide management
decision.
- CA further held that Jardine successfully established that for the years
1996 to 1998, the company incurred serious losses. The appellate court also
observed that the reduction in the number of workers, made necessary by
the introduction of the services of an independent contractor, is justified
when undertaken to implement more economic and efficient methods of
production.
ISSUE:
WON CA correctly rule that the NLRC committed grave abuse of
discretion when it found that Jardine validly terminated the petitioners
employment because of redundancy
RULING:
SC Granted the petition. it stated that: We cannot accept Jardines
shallow understanding of the concepts of redundancy and retrenchment in
determining the validity of the severance of an employer-employee
relationship. The fact that they are found together in just one provision does
not necessarily give rise to the conclusion that the difference between them
is immaterial.

Redundancy exists where the services of an employee are in excess of


what is reasonably demanded by the actual requirements of the enterprise. A
position is redundant where it is superfluous, and superfluity of a position or
positions may be the outcome of a number of factors, such as over hiring of
workers, decreased volume of business, or dropping of a particular product
line or service activity previously manufactured or undertaken by the
enterprise.
Retrenchment, on the other hand, is used interchangeably with the
term "lay-off." It is the termination of employment initiated by the employer
through no fault of the employees and without prejudice to the latter,
resorted to by management during periods of business recession, industrial
depression, or seasonal fluctuations, or during lulls occasioned by lack of
orders, shortage of materials, conversion of the plant for a new production
program or the introduction of new methods or more efficient machinery, or
of automation.
Simply put, it is an act of the employer of dismissing employees
because of losses in the operation of a business, lack of work, and
considerable reduction on the volume of his business, a right consistently
recognized and affirmed by this Court.
In the case at bench, respondents did not dispute that after
laying-off complainants herein, they engaged the services of an
agency to perform the tasks use (sic) to be done by complainants.
This is [in direct] contradiction to the concept of redundancy which
precisely requires the trimming down of the [workforce] because a
task is being carried out by just too many people. The subsequent
contracting out to an agency the functions or duties that used to be
the domain of individual complainants herein is a circumvention of
their constitutional rights to security of tenure, and therefore
illegal.
** Aside from the guidelines for the selection of employees who will be
terminated, the Court, in Asian Alcohol Corp. v. NLRC, the Guidelines in
implementing redundancy are as follows:
For the implementation of a redundancy program to be valid, the
employer must comply with the following requisites:
(1) written notice served on both the employees and the Department of
Labor and Employment at least one month prior to the intended date of
retrenchment;
(2) payment of separation pay equivalent to at least one month pay or at
least one month pay for every year of service, whichever is higher;
(3) good faith in abolishing the redundant positions; and
(4) fair and reasonable criteria in ascertaining what positions are to be
declared redundant and accordingly abolished.

G.R. No. 181490 : April 23, 2014


MIRANT (PHILIPPINES) CORPORATION, ET. AL., Petitioners, v. JOSELITO A. CARO,
Respondent.
VILLARAMA, JR., J.:
FACTS:
Petitioner corporation is organized and operating under and by virtue of the laws of the
Republic of the Philippines. It is a holding company that owns shares in project companies
such as Mirant Sual Corporation and Mirant Pagbilao Corporation (Mirant Pagbilao) which
operate and maintain power stations located in Sual, Pangasinan and Pagbilao, Quezon,
respectively. Petitioner corporation and its related companies maintain around 2,000
employees detailed in its main office and other sites. Petitioner corporation had changed its
name to CEPA Operations in 1996 and to Southern Company in 2001. In 2002, Southern
Company was sold to petitioner Mirant whose corporate parent is an Atlanta-based power
producer in the United States of America. Petitioner corporation is now known as Team
Energy Corporation.
Petitioner Edgardo A. Bautista (Bautista) was the President of petitioner corporation when
respondent was terminated from employment.
Respondent was hired by Mirant Pagbilao on January 3, 1994 as its Logistics Officer. In
2002, when Southern Company was sold to Mirant, respondent was already a Supervisor of
the Logistics and Purchasing Department of petitioner. At the time of the severance of his
employment, respondent was the Procurement Supervisor of Mirant Pagbilao assigned at
petitioner corporations corporate office. As Procurement Supervisor, his main task was to
serve as the link between the Materials Management Department of petitioner corporation
and its staff, and the suppliers and service contractors in order to ensure that procurement
is carried out in conformity with set policies, procedures and practices. In addition,
respondent was put in charge of ensuring the timely, economical, safe and expeditious
delivery of materials at the right quality and quantity to petitioner corporations plant.
Respondent was also responsible for guiding and overseeing the welfare and training needs
of the staff of the Materials Management Department. Due to the nature of respondents
functions, petitioner corporation considers his position as confidential.
Respondent filed a complaint for illegal dismissal and money claims for 13th and 14th

month pay, bonuses and other benefits, as well as the payment of moral and exemplary
damages and attorneys fees. It is the contention of respondent that he was illegally
dismissed by petitioner corporation due to the latters non-compliance with the twin
requirements of notice and hearing. He asserts that while there was a notice charging him
of unjustified refusal to submit to random drug testing, there was no notice of hearing and
petitioner corporations investigation was not the equivalent of the hearing required under
the law which should have accorded respondent the opportunity to be heard.
In a decision dated August 31, 2005, Labor Arbiter Aliman D. Mangandog found respondent
to have been illegally dismissed. The Labor Arbiter also found that the quitclaim purportedly
executed by respondent was not a bona fide quitclaim which effectively discharged
petitioners of all the claims of respondent in the case at bar. If at all, the Labor Arbiter
considered the execution of the quitclaim as a clear attempt on the part of petitioners to
mislead its office into thinking that respondent no longer had any cause of action against
petitioner corporation.
On appeal to the NLRC, petitioners alleged that the decision of the Labor Arbiter was
rendered with grave abuse of discretion for being contrary to law, rules and established
jurisprudence, and contained serious errors in the findings of facts which, if not corrected,
would cause grave and irreparable damage or injury to petitioners. The NLRC, giving weight
and emphasis to the inconsistencies in respondents explanations, considered his omission
as unjustified refusal in violation of petitioner corporations drug policy. Respondent filed a
motion for reconsideration, while petitioners filed a motion for partial reconsideration of the
NLRC decision. In a Resolution dated June 30, 2006, the NLRC denied both motions.
ISSUES:
1) Whether the petition for certiorari filed by respondent with the CA should have been
summarily dismissed as it lacked the requisite verification and certification against forum
shopping under Sections 4 and 5, Rule 7 of the Rules;
2) Whether respondent was illegally dismissed
HELD:
We agree with the disposition of the appellate court that there was illegal dismissal in the
case at bar.
While the adoption and enforcement by petitioner corporation of its Anti-Drugs Policy is
recognized as a valid exercise of its management prerogative as an employer, such
exercise is not absolute and unbridled. Managerial prerogatives are subject to limitations
provided by law, collective bargaining agreements, and the general principles of fair play
and justice. In the exercise of its management prerogative, an employer must therefore
ensure that the policies, rules and regulations on work-related activities of the employees
must always be fair and reasonable and the corresponding penalties, when prescribed,
commensurate to the offense involved and to the degree of the infraction. The Anti-Drugs
Policy of Mirant fell short of these requirements.
Petitioner corporations subject Anti-Drugs Policy fell short of being fair and reasonable.
First. The policy was not clear on what constitutes unjustified refusal when the subject drug
policy prescribed that an employees unjustified refusal to submit to a random drug test shall
be punishable by the penalty of termination for the first offense. To be sure, the term
unjustified refusal could not possibly cover all forms of refusal as the employees resistance,
to be punishable by termination, must be unjustified. To the mind of the Court, it is on this
area where petitioner corporation had fallen short of making it clear to its employees as well
as to management as to what types of acts would fall under the purview of unjustified
refusal. Even petitioner corporations own Investigating Panel recognized this ambiguity.