No less than the Philippine Constitution guarantees full protection to labor, whether local and overseas. This protection entails the right to self-organization, security of tenure, humane conditions of work and a living wage, among others. As such, an overseas Filipino worker, even though employed abroad, is not deprived of his/her rights under our Constitution and laws and may only be terminated for a just or authorized cause.
It is also well-settled here in the Philippines that discrimination on the basis of perceived or actual HIV status hampers the enjoyment of basic human rights and freedoms guaranteed in the Constitution and is deemed inimical to national interest. Consistent with this, Republic Act 11166 or the Philippine HIV and AIDS Policy Act forbids the rejection of job application, termination of employment, or other discriminatory policies in hiring, provision of employment and other related benefits, promotion, or assignment of an individual solely or partially on the basis of actual, perceived, or suspected HIV status.
Unfortunately, not all countries and states accord similar protection with regard to workers with actual, perceived, or suspected HIV status. Given this, the question arises: Can an overseas Filipino worker be dismissed because of actual, perceived, or suspected HIV condition if he/she works in a nation that does not provide the same protections?
In the case of Bison Management v. AAA and Dale Pernito (G.R. 256540, 14 February 2024), the Supreme Court answered negatively and emphasized that Filipino contract workers abroad are entitled to the security of tenure guaranteed by the Constitution regardless of the foreign laws governing the employment contract, especially if the latter is in contravention with the Philippine Constitution and laws.
In this case, AAA was hired by Bison to work as s cleaning laborer in the Kingdom of Saudi Arabia. After working for 15 months, AAA underwent medical examination where he was found positive for Human Immunodeficiency Virus (HIV). Considering that under the rules and laws of Saudi Arabia, an HIV+ individual is considered unfit to work, AAA’s employment was terminated by his foreign employer and he was repatriated back to the Philippines. This prompted AAA to file a case for illegal dismissal against Bison, the recruitment agency that placed and displaced him to Saudi.
For its part, Bison mainly argues that the principle of pacta sunt servanda should govern the present case considering that the Philippines and the Kingdom of Saudi Arabia have entered into an Agreement on Labor Cooperation, which imposes a duty on the part of the Philippines to ensure that the recruited general workers satisfy health requirements and are free from all communicable diseases, among others.
However, the Court did not give credence to this and held that as a general rule, Philippine laws govern overseas employment contracts. As a narrow exception, the parties can agree that foreign law shall govern, subject to the concurrence of certain requisites, the most important of which is that said foreign law stipulated in the overseas employment contract must not be contrary to law, morals, good customs, public order, or public policy.
Here, not only did Bison fail to prove the existence of the foreign law but worse, the foreign law that it invoked to justify the dismissal of AAA is evidently contrary to Philippine laws, making the latter the governing law. While it is true that disease may be a ground for termination under the Labor Code, it is also recognized that being HIV positive is not contemplated under the said provision especially considering that Republic Act 11166, or the Philippine HIV and AIDS Policy Act, prohibits the termination of employment on the basis of actual, perceived, or suspected HIV status.
Considering that there are no other reasons proffered for AAA’s dismissal aside from his HIV status, the Court held that AAA was illegally dismissed. Consequently, AAA is entitled to receive the salaries for the unexpired portion of his employment contract, monetary value for his unused vacation leaves, moral and exemplary damages as well as attorney’s fees.
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