Dear Atty. Vlad,

I am an HR manager in one of the Transport companies in Malolos, Bulacan. Two weeks ago, I announced that the Company will conduct a drug test for all employees. After the said drug test, three employees who are drivers did not appear. As such, the following week, I announced the conduct of another drug test. Again, the same three employees did not appear. As such, I went to the motorpool where they were staying, to specifically talk with them and to direct them to undergo the random drug test. Despite specific directive to undergo the drug test, said employees defied my directive and refused to undergo the drug test. Can I dismiss them because of their refusal to undergo the drug test?

Lanie

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Dear Lanie,

From what you shared to me, you gave the subject employees, ample opportunity to follow your directive to undergo the drug test. However, despite such opportunity given to them, they still defied you and refused to undergo the drug test.

In the case of Kakampi and its Members, Vitor Panuelos, et al. vs. Kingspoint Express and Logistic, et al., G.R. No. 194813, 25 April 2012, the Supreme Court ruled:

“As to whether Kingspoint Express complied with the substantive requirements of due process, this Court agrees with the CA that the concerned employees’ refusal to submit themselves to drug test is a just cause for their dismissal.”

An employer may terminate an employment on the ground of serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work. Willful disobedience requires the concurrence of two elements: (1) the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. Both elements are present in this case.

As to the first element, that at no point did the dismissed employees deny Kingspoint Express’ claim that they refused to comply with the directive for them to submit to a drug test or, at the very least, explain their refusal gives rise to the impression that their non-compliance is deliberate. The utter lack of reason or justification for their insubordination indicates that it was prompted by mere obstinacy, hence, willful and warranting of dismissal.

It involves little difficulty to accuse Kingspoint Express of anti-unionism and allege that this was what motivated the dismissal of the petitioners, but the duty to prove such an accusation is altogether different. That the petitioners failed at the level of substantiation only goes to show that their claim of unfair labor practice is a mere subterfuge for their willful disobedience.

As to the second element, no belabored and extensive discussion is necessary to recognize the relevance of the subject order in the performance of their functions as drivers of Kingspoint Express. As the NLRC correctly pointed out, drivers are indispensable to Kingspoint Express’ primary business of rendering door-to-door delivery services. It is common knowledge that the use of dangerous drugs has adverse effects on driving abilities that may render the dismissed employees incapable of performing their duties to Kingspoint Express and acting against its interests, in addition to the threat they pose to the public.

Since your driver-employees have continued to defy your directive to undergo the drug test, dismissing them from employment would be within your company’s management prerogative. It is of common knowledge that the use of dangerous drug has adverse effect on driving abilities, which may render your dismissed employees, incapable of performing their duties.

I hope that I was able to help you based on what you shared to me.

Atty. Vlad del Rosario