BY ATTY. JULIUS GREGORY B. DELGADO
JOY VILLARICO VS. D.M. CONSUNJI, INC., ET AL., G.R. NO. 255602 (AUGUST 04, 2021):TESTING POSITIVE OF ILLEGAL DRUGS AMOUNTS TO SERIOUS MISCONDUCT WHICH IS A JUST CAUSE FOR TERMINATION OF EMPLOYMENT
This case stems from a complaint for illegal dismissal, non-payment of service incentive leave, 13th month pay, and separation pay, as well as prayer for moral damages, exemplary damages, and attorney’s fees filed by petitioner Joy Villarico (“petitioner Villarico”) against respondents D.M. Consunji, Inc. (“DMCI”) and its Human Resources Department Manager/Vice President Madeline Elba B. Gacutan. Petitioner Villarico claims that he first worked with DMCI as a Laborer on November 8, 2007, and was subsequently assigned to different projects, the last of which was the NAIA Expressway Project in March 2016 as a crane operator.
Petitioner Villarico further claims that he was suspended for four (4) days supposedly due to violation of company policy. Upon return to work, he was made to sign a document similar to notice to explain but refused. Hence, he was told that he will be absent without leave for four (4) days and that his termination will be sent via courier. Thus, Villarico sought assistance from the National Labor Relations Commission (“NLRC”) and upon mediation and conciliation, he was placed under floating status for two (2) months. Villarico was then made to undergo medical examination. Subsequently, DMCI informed him that he failed his drug test and was ordered to return after one (1) month for confirmatory testing. After a month, he returned only to be informed that DMCI is still waiting for the result of the confirmatory testing and was instructed to return after two (2) weeks. Upon his return, he was merely given a number to follow-up his concern, hence, he filed a complaint on August 30, 2016.
The Labor Arbiter initially dismissed the complaint of petitioner Villarico and held that he is merely a project employee. The NLRC affirmed the ruling of the Labor Arbiter. The Court of Appeals denied petitioner Villarico’s Petition for Certiorari. Hence, petitioner Villarico filed a Petition for Review on Certiorari before the Supreme Court.
Citing D.M. Consunji Corp. vs. Bello, G.R. No. 159371 (July 29, 2013), wherein the Court held that an employee was considered regular because of his continuous hiring as a mason for six (6) years,and D.M. Consunji vs. Jamin, G.R. No. 192514 (April 18, 2012), wherein the Court held as necessary and desirable an employee who worked for 38 projects in a span of 31 years, the Supreme Court held that petitioner Villarico’s skills are necessary and desirable to the business of DMCI considering that he was continuously employed in various projects of the company.
The Court, however, found him liable for serious misconduct for testing positive of illegal drugs. Thus: “The termination of Villarico’s employment for the completion of the project he was assigned to is not proper. However, Villarico was not illegally dismissed because there was just cause for his dismissal. Villarico did not dispute the Medical Examination Certificate dated June 1, 2016 and the Drug Test Report dated August 31, 2016 wherein it is stated that he tested positive for Tetrahydrocannabinol. He did not present any evidence to refute such findings. Tetrahydrocannabinol is considered a dangerous drug under Republic Act No. (R.A.) 9165 or the Comprehensive Dangerous Drugs Act of 2002. The use of illegal drugs qualifies as serious misconduct under Article 297 of the Labor Code. Misconduct is defined as the improper or wrong conduct. It is 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 merely an error in judgment. It is considered serious when it is of a grave and aggravated character and not merely trivial or unimportant. In Bughaw, Jr. v. Treasure Island Industrial Corp., the Court held that ‘any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer.’ Villarico may not have been caught by DMCI in the act of using illegal drugs but his failure to disprove the findings showing that he tested positive for tetrahydrocannabinol cannot be disregarded. Thus, DMCI had just cause for terminating Villarico’s employment. Consequently, Villarico is not entitled to backwages and separation pay in lieu of reinstatement.”
However, the requirement to due process was not observed as petitioner Villarico was entitled to two (2) notices, the first to inform him of the particular act or omission for which his dismissal was sought while the second to inform him of his dismissal. In the instant case, there was no evidence that either notice was sent to petitioner Villarico. The Court held that the termination paper regarding the completion of the latest project that Villarico was assigned certainly did not inform him of the basis for his dismissal. Considering that DMCI did not comply with the two-notice rule, it was slapped a penalty of Php30,000.00 by way of nominal damages.