SPECIAL FIRST DIVISION

[G.R. No. 196156. January 15, 2014.]

VISAYAS COMMUNITY MEDICAL CENTER (VCMC), Formerly known

as METRO CEBU COMMUNITY HOSPITAL (MCCH) , petitioner, vs .
ERMA YBALLE, NELIA ANGEL, ELEUTERIA CORTEZ and EVELYN
ONG , respondents.

DECISION

VILLARAMA, JR. , J : p

The present petition was included in the four consolidated cases previously decided
by this Court. 1 However, its reinstatement and separate disposition became necessary
due to oversight in the issuance of the order of consolidation.
The Facts
Respondents were hired as staff nurses (Ong and Angel) and midwives (Yballe and
Cortez) by petitioner Visayas Community Medical Center (VCMC), formerly the Metro Cebu
Community Hospital, Inc. (MCCHI). MCCHI is a non-stock, non-pro t corporation which
operates the Metro Cebu Community Hospital (MCCH), a tertiary medical institution
owned by the United Church of Christ in the Philippines (UCCP).
Considering the similar factual setting, we quote the relevant portions of the
narration of facts in our Decision dated December 7, 2011 in Abaria v. NLRC: 2 ACEIac

The National Federation of Labor (NFL) is the exclusive bargaining

representative of the rank-and- le employees of MCCHI. Under the 1987 and 1991
Collective Bargaining Agreements (CBAs), the signatories were Ciriaco B. Pongasi,
Sr. for MCCHI, and Atty. Armando M. Alforque (NFL Legal Counsel) and Paterno
A. Lumapguid as President of NFL-MCCH Chapter. In the CBA effective from
January 1994 until December 31, 1995, the signatories were Sheila E. Buot as
Board of Trustees Chairman, Rev. Iyoy as MCCH Administrator and Atty.
Fernando Yu as Legal Counsel of NFL, while Perla Nava, President of
Nagkahiusang Mamumuo sa MCCH (NAMA-MCCH-NFL) signed the Proof of
Posting.
On December 6, 1995, Nava wrote Rev. Iyoy expressing the union's desire
to renew the CBA, attaching to her letter a statement of proposals
signed/endorsed by 153 union members. Nava subsequently requested that the
following employees be allowed to avail of one-day union leave with pay on
December 19, 1995: Celia Sabas, Jesusa Gerona, Albina Bañez, Eddie Villa, Roy
Malazarte, Ernesto Canen, Jr., Guillerma Remocaldo, Catalina Alsado, Evelyn Ong,
Melodia Paulin, So a Bautista, Hannah Bongcaras, Ester Villarin, Iluminada
Wenceslao and Perla Nava. However, MCCHI returned the CBA proposal for Nava
to secure rst the endorsement of the legal counsel of NFL as the o cial
bargaining representative of MCCHI employees. HTaIAC

Meanwhile, Atty. Alforque informed MCCHI that the proposed CBA

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 submitted by Nava was never referred to NFL and that NFL has not authorized
any other legal counsel or any person for collective bargaining negotiations. By
January 1996, the collection of union fees (check-off) was temporarily suspended
by MCCHI in view of the existing con ict between the federation and its local
a liate. Thereafter, MCCHI attempted to take over the room being used as union
o ce but was prevented to do so by Nava and her group who protested these
actions and insisted that management directly negotiate with them for a new
CBA. MCCHI referred the matter to Atty. Alforque, NFL's Regional Director, and
advised Nava that their group is not recognized by NFL.

In his letter dated February 24, 1996 addressed to Nava, Ernesto Canen, Jr.,
Jesusa Gerona, Hannah Bongcaras, Emma Remocaldo, Catalina Alsado and
Albina Bañez, Atty. Alforque suspended their union membership for serious
violation of the Constitution and By-Laws. Said letter states:

xxx xxx xxx

On February 26, 1996, upon the request of Atty. Alforque, MCCHI granted
one-day union leave with pay for 12 union members. The next day, several union
members led by Nava and her group launched a series of mass actions such as
wearing black and red armbands/headbands, marching around the hospital
premises and putting up placards, posters and streamers. Atty. Alforque
immediately disowned the concerted activities being carried out by union
members which are not sanctioned by NFL. MCCHI directed the union o cers led
by Nava to submit within 48 hours a written explanation why they should not be
terminated for having engaged in illegal concerted activities amounting to strike,
and placed them under immediate preventive suspension. Responding to this
directive, Nava and her group denied there was a temporary stoppage of work,
explaining that employees wore their armbands only as a sign of protest and
reiterating their demand for MCCHI to comply with its duty to bargain collectively.
Rev. Iyoy, having been informed that Nava and her group have also been
suspended by NFL, directed said o cers to appear before his o ce for
investigation in connection with the illegal strike wherein they reportedly uttered
slanderous and scurrilous words against the o cers of the hospital, threatening
other workers and forcing them to join the strike. Said union o cers, however,
invoked the grievance procedure provided in the CBA to settle the dispute between
management and the union. DTAcIa

On March 13 and 19, 1996, the Department of Labor and Employment

(DOLE) Regional O ce No. 7 issued certi cations stating that there is nothing in
their records which shows that NAMA-MCCH-NFL is a registered labor
organization, and that said union submitted only a copy of its Charter Certi cate
on January 31, 1995. MCCHI then sent individual notices to all union members
asking them to submit within 72 hours a written explanation why they should not
be terminated for having supported the illegal concerted activities of NAMA-
MCCH-NFL which has no legal personality as per DOLE records. In their collective
response/statement dated March 18, 1996, it was explained that the picketing
employees wore armbands to protest MCCHI's refusal to bargain; it was also
contended that MCCHI cannot question the legal personality of the union which
had actively assisted in CBA negotiations and implementation.

On March 13, 1996, NAMA-MCCH-NFL led a Notice of Strike but the same
was deemed not led for want of legal personality on the part of the ler. The
National Conciliation and Mediation Board (NCMB) Region 7 o ce likewise
denied their motion for reconsideration on March 25, 1996. Despite such rebuff,
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 Nava and her group still conducted a strike vote on April 2, 1996 during which an
overwhelming majority of union members approved the strike.
Meanwhile, the scheduled investigations did not push through because the
striking union members insisted on attending the same only as a group. MCCHI
again sent notices informing them that their refusal to submit to investigation is
deemed a waiver of their right to explain their side and management shall
proceed to impose proper disciplinary action under the circumstances. On March
30, 1996, MCCHI sent termination letters to union leaders and other members who
participated in the strike and picketing activities. On April 8, 1996, it also issued a
cease-and-desist order to the rest of the striking employees stressing that the
wildcat concerted activities spearheaded by the Nava group is illegal without a
valid Notice of Strike and warning them that non-compliance will compel
management to impose disciplinary actions against them. For their continued
picketing activities despite the said warning, more than 100 striking employees
were dismissed effective April 12 and 19, 1996.

Unfazed, the striking union members held more mass actions. The means
of ingress to and egress from the hospital were blocked so that vehicles carrying
patients and employees were barred from entering the premises. Placards were
placed at the hospital's entrance gate stating: "Please proceed to another
hospital" and "we are on protest." Employees and patients reported acts of
intimidation and harassment perpetrated by union leaders and members. With the
intensi ed atmosphere of violence and animosity within the hospital premises as
a result of continued protest activities by union members, MCCHI suffered heavy
losses due to low patient admission rates. The hospital's suppliers also refused to
make further deliveries on credit.

With the volatile situation adversely affecting hospital operations and the
condition of con ned patients, MCCHI led a petition for injunction in the NLRC
(Cebu City) on July 9, 1996 (Injunction Case No. V-0006-96). A temporary
restraining order (TRO) was issued on July 16, 1996. MCCHI presented 12
witnesses (hospital employees and patients), including a security guard who was
stabbed by an identi ed sympathizer while in the company of Nava's group.
MCCHI's petition was granted and a permanent injunction was issued on
September 18, 1996 enjoining the Nava group from committing illegal acts
mentioned in Art. 264 of the Labor Code.
On August 27, 1996, the City Government of Cebu ordered the demolition
of the structures and obstructions put up by the picketing employees of MCCHI
along the sidewalk, having determined the same as a public nuisance or nuisance
per se. cSaATC

Thereafter, several complaints for illegal dismissal and unfair labor

practice were led by the terminated employees against MCCHI, Rev. Iyoy, UCCP
and members of the Board of Trustees of MCCHI. 3

On August 4, 1999, Executive Labor Arbiter Reynoso A. Belarmino rendered his

Decision 4 in the consolidated cases which included NLRC Case No. RAB-VII-02-0309-98
filed by herein respondents. The dispositive portion of said decision reads:
WHEREFORE, premises considered, judgment is hereby rendered
dismissing the claim of unfair labor practice and illegal dismissal and declaring
the termination of the following as an offshoot of the illegal strike: Perla Nava,
Catalina Alsado, Albina Bañez, Hannah Bongcaras, Ernesto Canen, Jesusa
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 Gerona and Guillerma Remocaldo but directing the respondent Metro Cebu
Community Hospital to pay the herein complainants separation pay in the sum of
THREE MILLION EIGHTY FIVE THOUSAND EIGHT HUNDRED NINETY SEVEN and
[40]/100 (P3,085,897.40) detailed as follows:

xxx xxx xxx

79.Erma Yballe

6/11/83-4/19/96: 12 years, 10 mos. (13 years)

P5,000.00 ÷ 2 x 13 = 32,500.00
80.Eleuteria Cortez
12/13/[74] 5 - /12/96: 21 years, 4 mos. (21 years)

P5,000.00 ÷ 2 x 21 = 52,500.00
81.Nelia Angel
6/01/88-4/12/96: 7 years, 10 mos. (8 years)
P5,000.00 ÷ 2 x 8 = 20,000.00
82.Evelyn Ong

7/07/86-4/12/96: 9 years, 9 mos. (10 years)

P5,000.00 ÷ 2 x 10 = 25,000.00

xxx xxx xxx

SO ORDERED. 6 CSTcEI

Executive Labor Arbiter Belarmino ruled that MCCHI and its administrators were not
guilty of unfair labor practice. He likewise upheld the termination of complainants union
o cers who conducted the illegal strike. The rest of the complainants were found to have
been illegally dismissed, thus:
We, however, see that the NAMA members deserve a different treatment.
As the Court said, members of a union cannot be held responsible for an illegal
strike on the sole basis of such membership, or even on an account of their
a rmative vote authorizing the same. They become liable only if they actually
participated therein (ESSO Phil., Inc. vs. Malayang Manggagawa sa Esso, 75
SCRA 73). But the illegality of their participation is placed in a state of doubt they,
being merely followers. Under the circumstances, We resort to Art. 4 of the Labor
Code favoring the workingman in case of doubt in the interpretation and
implementation of laws.

Obviously swayed by the actuations of their leaders, herein complainants

ought to be reinstated as a matter of policy but without backwages for they
cannot be compensated having skipped work during the illegal strike (National
Federation of Sugar Workers vs. Overseas et al. 114 SCRA 354). But with their
positions already taken over by their replacements and with strained relations
between the parties having taken place, We deem it fair that complainants except
for the seven o cers, should be paid separation pay of one-half (1/2) month for
every year of service by the respondent hospital. 7

Respondents and their co-complainants led their respective appeals before the
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 National Labor Relations Commission (NLRC) Cebu City. On February 15, 2001,
respondents and MCCHI jointly moved to defer resolution of their appeal (NLRC Case No.
V-001042-99) in view of a possible compromise. Consequently, in its Decision 8 dated
March 14, 2001, the NLRC's Fourth Division (Cebu City) resolved only the appeals led by
respondents' co-complainants. The dispositive portion of said decision reads: cTIESD

WHEREFORE , premises considered, the decision of the Executive Labor

Arbiter dismissing the complaint for unfair labor practice and illegal dismissal is
AFFIRMED with MODIFICATIONS declaring the dismissal of all the
complainants in RAB Case No. 07-02-0394-98 and RAB Case No. 07-03-0596-98
valid and legal. Necessarily, the award of separation pay and attorney's fees are
hereby Deleted.

Resolution on RAB Case No. 07-02-0309-98 is hereby Deferred upon Joint

Motion of the parties.

SO ORDERED. 9

The NLRC denied the motion for reconsideration of the above decision under its
Resolution 1 0 dated July 2, 2001.
Having failed to reach a settlement, respondents' counsel led a motion to resolve
their appeal on January 2, 2003. Thus, on March 12, 2003, the NLRC-Cebu City Fourth
Division rendered its Decision, 1 1 as follows:
WHEREFORE , premises considered, the decision of the Executive Labor
Arbiter dismissing the complaint for unfair labor practice and illegal dismissal is
AFFIRMED with MODIFICATIONS declaring all the complainants to have been
validly dismissed. Necessarily, the award of separation pay and attorney's fees
are hereby Deleted.

SO ORDERED. 1 2

In deleting the award of separation pay and attorney's fees, the NLRC emphasized
that respondents and their co-complainants are guilty of insubordination, having persisted
in their illegal concerted activities even after MCCHI had sent them individual notices that
the strike was illegal as it was led by NAMA-MCCH-NFL which is not a legitimate labor
organization. It held that under the circumstances where the striking employees harassed,
threatened and prevented non-striking employees and doctors from entering hospital
premises, blocked vehicles carrying patients to the hospital premises and caused anxiety
to recuperating patients by displaying placards along the corridors of the hospital, and the
resulting decrease in hospital admission, refusal of suppliers to make further deliveries
due to fears of violence erupting as a result of picketing, and diminished income due to
low admission rates, it would be unfair to saddle MCCHI with the burden of paying
separation pay to complainants who were validly dismissed. caCEDA

Respondents' motion for reconsideration was denied by the NLRC under its
Resolution 1 3 dated April 13, 2004.
Meanwhile, the petition for certiorari led by respondents' co-complainants in the
Court of Appeals (CA) Cebu Station (CA-G.R. SP No. 66540) was initially dismissed by the
CA's Eighth Division on the ground that out of 88 petitioners only 47 have signed the
certi cation against forum shopping. On motion for reconsideration led by said
petitioners, the petition was reinstated but only with respect to the 47 signatories. Said
ruling was challenged by complainants before this Court via a petition for review on
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 certiorari, docketed as G.R. No. 154113 (Abaria, et al. v. NLRC, et al.). 1 4
On October 17, 2008, the CA dismissed the petition in CA-G.R. SP No. 66540, as
follows:
WHEREFORE , premises considered, judgment is hereby rendered
AFFIRMING the Decision of the National Labor Relations Commission (NLRC) —
Fourth Division dated March 14, 2001 in NLRC Case No. V-001042-99, WITH
MODIFICATIONS to the effect that (1) the petitioners, except the union o cers,
shall be awarded separation pay equivalent to one-half (1/2) month pay for every
year of service, and (2) petitioner Cecilia Sabas shall be awarded overtime pay
amounting to sixty-three (63) hours.
SO ORDERED . 1 5 TESICD

The motion for reconsideration and motion for partial reconsideration respectively
led by the complainants and MCCHI in CA-G.R. SP No. 66540 were likewise denied by the
CA. 1 6 Both parties elevated the case to this Court in separate petitions: G.R. No. 187778
(Perla Nava, et al. v. NLRC, et al.) and G.R. No. 187861 (Metro Cebu Community Hospital v.
Perla Nava, et al.).
Herein respondents also led in the CA a petition for certiorari assailing the March
12, 2003 Decision and April 13, 2004 Resolution of the NLRC, docketed as CA-G.R. SP No.
84998 (Cebu City). By Decision 1 7 dated November 7, 2008, the CA granted their petition,
as follows:
WHEREFORE , the challenged Decision of public respondent dated March
12, 2003 and its Resolution dated April 13, 2004 are hereby REVERSED AND
SET ASIDE . Private respondent Metro Cebu Community Hospital is ordered to
reinstate petitioners Erma Yballe, Eleuteria Cortes, Nelia Angel and Evelyn Ong
without loss of seniority rights and other privileges; to pay them their full
backwages inclusive of their allowances and other bene ts computed from the
time of their dismissal up to the time of their actual reinstatement.
No pronouncement as to costs.

SO ORDERED. 1 8 DaScCH

Petitioner led a motion for reconsideration which the CA denied in its February 22,
2011 Resolution. 1 9
The Case
The present petition (G.R. No. 196156) was filed on April 27, 2011.
Records showed that as early as August 3, 2009, G.R. Nos. 187861 and 187778
were consolidated with G.R. No. 154113 pending with the Third Division. 2 0 As to the
present petition, it was initially denied under the June 8, 2011 Resolution 2 1 issued by the
Second Division for failure to show any reversible error committed by the CA. Petitioner
led a motion for reconsideration to which respondents led an opposition. Said motion
for reconsideration of the earlier dismissal (June 8, 2011) remained unresolved by the
Second Division which, on June 29, 2011, issued a resolution ordering the transfer of the
present case to the Third Division. 2 2
It is further recalled that on June 23, 2011, petitioner moved to consolidate the
present case with G.R. Nos. 154113, 187861 and 187778 which was opposed by
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 respondents. Under Resolution dated August 1, 2011, the Third Division denied the motion
for consolidation, citing the earlier dismissal of the petition on June 8, 2011. 2 3 However,
on motion for reconsideration led by petitioner, said resolution was set aside on October
19, 2011 and the present case was ordered consolidated with G.R. Nos. 154113, 187778
and 187861 and transferred to the First Division where the latter cases are pending. 2 4
On December 7, 2011, the Decision 2 5 in the consolidated cases (G.R. Nos. 154113,
187778, 187861 and 196156) was rendered, the dispositive portion of which states:
WHEREFORE, the petition for review on certiorari in G.R. No. 187861 is
DENIED while the petitions in G.R. Nos. 154113, 187778 and 196156 are PARTLY
GRANTED. The Decision dated October 17, 2008 of the Court of Appeals in CA-
G.R. SP No. 66540 is hereby AFFIRMED with MODIFICATIONS in that MCCHI is
ordered to pay the petitioners in G.R. Nos. 154113 and 187778, except the
petitioners who are union o cers, separation pay equivalent to one month pay
for every year of service, and reasonable attorney's fees in the amount of
P50,000.00. The Decision dated November 7, 2008 is likewise AFFIRMED with
MODIFICATIONS in that MCCHI is ordered to pay the private respondents in G.R.
No. 196156 separation pay equivalent to one month pay for every year of service,
and that the award of back wages is DELETED. CaAIES

The case is hereby remanded to the Executive Labor Arbiter for the
recomputation of separation pay due to each of the petitioners union members in
G.R. Nos. 154113, 187778 and 196156 except those who have executed
compromise agreements approved by this Court.
No pronouncement as to costs.

SO ORDERED. 2 6

On February 7, 2012, respondents filed a Motion for Reconsideration with Motion for
Severance and Remand 2 7 asserting that they were denied due process as they had no
opportunity to le a comment on the petition prior to the rendition of the Decision dated
December 7, 2011. They also point out that the issues in the present case are different
from those raised in the petitions filed by their co-complainants.
On June 18, 2012, this Court issued a Resolution (1) reinstating the petition and
requiring the respondents to le their comment on the petition; and (2) denying the motion
for remand to the Second Division. 2 8 Respondents thus led their Comment, to which
petitioner filed its Reply. Thereafter, the parties submitted their respective memoranda.
Issues
In their Memorandum, respondents submit that since the Decision dated December
7, 2011 in the consolidated cases of Abaria v. NLRC have already declared the dismissal of
complainants union members as illegal but awarded separation pay and reasonable
attorney's fees, the remaining issue to be resolved in this case is whether respondents are
entitled to back wages and damages.
Petitioner, however, further assail the CA in (a) allowing respondents to change their
theory on appeal, (b) nding that respondents did not commit illegal acts during the strike
and (c) increasing the award of separation pay to one month pay for every year of service
as held in the December 7, 2011 Decision in view of the damages suffered by petitioner. DEIHAa

Respondents' Argument
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 Respondents maintain that there was no iota of evidence presented by petitioner
that they took part in the illegal strike conducted by the Nava group or committed illegal
acts like the blocking of ingress and egress in the hospital premises. They claim that they
were never involved in work stoppage but instead were locked out by petitioner as they
were unable to resume work because hospital security personnel prevented them from
entering the hospital upon petitioner's instructions.
Claiming that they have consistently manifested their non-participation in the illegal
strike before the regional arbitration branch, NLRC and the CA, respondents argue that
there is absolutely no reason to delete the awards of back wages and separation pay in
lieu of reinstatement. TcDIaA

Petitioner's Argument
Petitioner contends that respondents have surreptitiously changed their position
from admitting in their pleadings before the NLRC their participation in the illegal strike to
that of mere wearing of arm bands and alleged non-receipt of the notices in their appeal
before the CA. They stress the established facts on record that: (1) respondents signed
the March 18, 1996 collective reply of the union o cers and members to the notices sent
by petitioner regarding their illegal concerted activities, thus proving that they received the
said notices; (2) acknowledged Perla Nava as their union leader which belies respondents'
belated attempt to distance themselves from the Nava group who led the illegal strike; and
(3) respondents did not, in their motion for reconsideration of the NLRC Decision dated
March 12, 2003, make any denial of their participation in the illegal strike but even justi ed
their resort thereto due to the prevailing labor dispute.
With the Decision in the consolidated cases (Abaria v. NLRC) having already upheld
the consistent rule that dismissed employees who participated in an illegal strike are not
entitled to back wages, petitioner prays that the previous rulings in Philippine Diamond
Hotel and Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union ,
2 9 G & S Transport Corporation v. Infante , 3 0 Philippine Marine O cers' Guild v. Compañia
Maritima, et al., 3 1 and Escario v. National Labor Relations Commission (Third Division) 3 2
be likewise applied in this case.
Our Ruling
The petition is partly meritorious. ScTCIE

Paragraph 3, Article 264 (a) of the Labor Code provides that ". . . [a]ny union o cer
who knowingly participates in an illegal strike and any worker or union o cer who
knowingly participates in the commission of illegal acts during a strike may be declared to
have lost his employment status . . ."
In the Decision dated December 7, 2011, we declared as invalid the dismissal of
MCCH employees who participated in the illegal strike conducted by NAMA-MCCH-NFL
which is not a legitimate labor organization. Since there was no showing that the
complainants committed any illegal act during the strike, they may not be deemed to have
lost their employment status by their mere participation in the illegal strike. On the other
hand, the union leaders (Nava group) who conducted the illegal strike despite knowledge
that NAMA-MCCH-NFL is not a duly registered labor union were declared to have been
validly terminated by petitioner.
We stress that the law makes a distinction between union members and union
o cers. A worker merely participating in an illegal strike may not be terminated from
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 employment. It is only when he commits illegal acts during a strike that he may be
declared to have lost employment status. 3 3 In contrast, a union o cer may be terminated
from employment for knowingly participating in an illegal strike or participates in the
commission of illegal acts during a strike. The law grants the employer the option of
declaring a union o cer who participated in an illegal strike as having lost his
employment. It possesses the right and prerogative to terminate the union o cers from
service. 3 4 acADIT

In this case, the NLRC a rmed the nding of the Labor Arbiter that respondents
supported and took part in the illegal strike and further declared that they were guilty of
insubordination. It noted that the striking employees were determined to force
management to negotiate with their union and proceeded with the strike despite
knowledge that NAMA-MCCH-NFL is not a legitimate labor organization and without
regard to the consequences of their acts consisting of displaying placards and marching
noisily inside the hospital premises, and blocking the entry of vehicles and persons.
On appeal, the CA reversed the rulings of the Labor Arbiter and NLRC, ordered the
reinstatement of respondents and the payment of their full back wages. The CA found that
respondents' participation was limited to the wearing of armband and thus, citing Bascon
v. CA , 3 5 declared respondents' termination as invalid in the absence of any evidence that
they committed any illegal act during the strike.
In the Decision dated December 7, 2011, we likewise ruled that the mass
termination of complainants was illegal, notwithstanding the illegality of the strike in which
they participated. However, since reinstatement was no longer feasible, we ordered
MCCHI to pay the dismissed employees separation pay equivalent to one month pay for
every year of service. The claim for back wages was denied, consistent with existing law
and jurisprudence.
Respondents argue that the CA correctly awarded them back wages because while
they "supported the protest action" they were not part of the Nava group who were
charged with blocking the free ingress and egress of the hospital, threatening and
harassing persons entering the premises, and making boisterous and unpleasant remarks.
They deny any participation in the illegal strike and assert that no evidence of their actual
participation in the strike was shown by petitioner.CITaSA

We are not persuaded by respondents' attempt to dissociate themselves from the

Nava group who led the illegal strike. In their motion for reconsideration led before the
NLRC, respondents no longer denied having participated in the strike but simply argued
that no termination of employment in connection with the strike "staged by complainants"
cannot be legally sustained because MCCHI "did not le a complaint or petition to declare
the strike of complainants illegal or declare that illegal acts were committed in the
conduct of the strike." Respondents further assailed the NLRC's nding that they were
guilty of insubordination since "the proximate cause of the acts of complainants was the
prevailing labor dispute and the consequent resort by complainants of [sic] a strike
action." 3 6 When the case was elevated to the CA, respondents shifted course and again
insisted that they did not participate in the strike nor receive the March 15, 1996 individual
notices sent by petitioner to the striking employees. EDATSC

Respondents' inconsistent posture cannot be sanctioned. While there was indeed no

evidence of any illegal act committed by respondents during the strike, the Labor Arbiter
and NLRC were one in nding that respondents actively supported the concerted protest
activities, signed the collective reply of union members manifesting that they launched the
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 mass actions to protest management's refusal to negotiate a new CBA, refused to appear
in the investigations scheduled by petitioner because it was the union's stand that they
would only attend these investigations as a group, and failed to heed petitioner's nal
directive for them to desist from further taking part in the illegal strike. The CA, on the
other hand, found that respondents' participation in the strike was limited to the wearing of
armbands. Since an ordinary striking worker cannot be dismissed for such mere
participation in the illegal strike, the CA correctly ruled that respondents were illegally
dismissed. However, the CA erred in awarding respondents full back wages and ordering
their reinstatement despite the prevailing circumstances.
As a general rule, back wages are granted to indemnify a dismissed employee for
his loss of earnings during the whole period that he is out of his job. Considering that an
illegally dismissed employee is not deemed to have left his employment, he is entitled to
all the rights and privileges that accrue to him from the employment. 3 7 The grant of back
wages to him is in furtherance and effectuation of the public objectives of the Labor Code,
and is in the nature of a command to the employer to make a public reparation for his
illegal dismissal of the employee in violation of the Labor Code. 3 8 DCcIaE

Are respondents then entitled to back wages? This Court, in G & S Transport
Corporation v. Infante, 3 9 ruled in the negative:
With respect to backwages, the principle of a "fair day's wage for a fair
day's labor" remains as the basic factor in determining the award thereof. If there
is no work performed by the employee there can be no wage or pay unless, of
course, the laborer was able, willing and ready to work but was illegally locked
out, suspended or dismissed or otherwise illegally prevented from working. . . . In
Philippine Marine O cers' Guild v. Compañia Maritima , as a rmed in Philippine
Diamond Hotel and Resort v. Manila Diamond Hotel Employees Union , the Court
stressed that for this exception to apply, it is required that the strike be
legal, a situation that does not obtain in the case at bar . (Emphasis
supplied)

The alternative relief for union members who were dismissed for having participated
in an illegal strike is the payment of separation pay in lieu of reinstatement under the
following circumstances: (a) when reinstatement can no longer be effected in view of the
passage of a long period of time or because of the realities of the situation; (b)
reinstatement is inimical to the employer's interest; (c) reinstatement is no longer feasible;
(d) reinstatement does not serve the best interests of the parties involved; (e) the
employer is prejudiced by the workers' continued employment; (f) facts that make
execution unjust or inequitable have supervened; or (g) strained relations between the
employer and employee. 4 0
In the Decision dated December 7, 2011, we held that the grant of separation pay to
complainants is the appropriate relief under the circumstances, thus: DaESIC

Considering that 15 years had lapsed from the onset of this labor dispute,
and in view of strained relations that ensued, in addition to the reality of
replacements already hired by the hospital which had apparently recovered from
its huge losses, and with many of the petitioners either employed elsewhere,
already old and sickly, or otherwise incapacitated, separation pay without back
wages is the appropriate relief. . . . 4 1

In ne, we sustain the CA in ruling that respondents who are mere union members
were illegally dismissed for participating in the illegal strike conducted by the Nava group.
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 However, we set aside the order for their reinstatement and payment of full back wages. CacISA

WHEREFORE , the petition is PARTLY GRANTED . The Decision dated November 7,

2008 and Resolution dated February 22, 2011 of the Court of Appeals in CA-G.R. SP No.
84998 are hereby AFFIRMED with MODIFICATIONS . In lieu of reinstatement, petitioner
Visayas Community Medical Center (formerly known as the Metro Cebu Community
Hospital) is ordered to PAY respondents Erma Yballe, Evelyn Ong, Nelia Angel and
Eleuteria Cortez separation pay equivalent to one month pay for every year of service. The
award of back wages to the said respondents is DELETED .
The case is hereby remanded to the Executive Labor Arbiter for the recomputation
of separation pay due to each of the respondents.
SO ORDERED .
Leonardo-de Castro, * Bersamin, Del Castillo and Leonen, ** JJ., concur.

Footnotes
*Designated Acting Chairperson per Special Order No. 1226 dated May 30, 2012.

**Designated additional member pursuant to the third paragraph, Section 7, Rule 2 of the
Internal Rules of the Supreme Court.

1.Abaria v. National Labor Relations Commission , G.R. Nos. 154113, 187778, 187861 &
196156, December 7, 2011, 661 SCRA 686.
2.Id.

3.Id. at 691-697.
4.CA rollo, pp. 216-247.

5.Rollo, p. 368.

6.CA rollo, pp. 238-239, 246-247.

7.Id. at 238.

8.NLRC records (Vol. II), pp. 617-647. Penned by Commissioner Bernabe S. Batuhan and
concurred in by Commissioner Edgardo M. Enerlan. Presiding Commissioner Irenea E.
Ceniza took no part.
9.Id. at 647.

10.Id. at 690-691.
11.CA rollo, pp. 156-185. Penned by Commissioner Oscar S. Uy with Commissioner Edgardo M.
Enerlan concurring.

12.Id. at 185.
13.Id. at 187-189.

14.Abaria v. National Labor Relations Commission, supra note 1, at 698-699.

15. Rollo, p. 546.

16.Id. at 548-559.
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 17.Id. at 64-76. Penned by Associate Justice Priscilla J. Baltazar-Padilla with Associate
Justices Franchito N. Diamante and Edgardo L. Delos Santos concurring.

18.Id. at 75.
19.Id. at 62-63. Penned by Associate Justice Edgardo L. delos Santos with Associate Justices
Agnes Reyes-Carpio and Eduardo B. Peralta, Jr. concurring.

20.Id. at 500.
21.Id. at 476-477.

22.Id. at 485.

23.Id. at 479-484.
24.Id. at 687.

25.Abaria v. National Labor Relations Commission, supra note 1.

26.Id. at 716-717.

27.Rollo, pp. 668-683.

28.Id. at 717-A.
29.526 Phil. 679 (2006).

30.559 Phil. 701 (2007).

31.131 Phil. 218 (1968).

32.G.R. No. 160302, September 27, 2010, 631 SCRA 261.

33.Sta. Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils., Inc. , 541 Phil. 421,
440-441 (2007).

34.Id. at 441.

35.466 Phil. 719 (2004).

36.CA rollo, pp. 259-260.

37.Escario v. National Labor Relations Commission (Third Division), supra note 32, at 272-273,
citing Gold City Integrated Port Service, Inc. v. NLRC, 315 Phil. 698 (1995) and Cristobal
v. Melchor, 189 Phil. 658 (1980).
38.Id. at 273, citing Imperial Textile Mills, Inc. v. National Labor Relations Commission , G.R. No.
101527, January 19, 1993, 217 SCRA 237, 247.

39.Supra note 30, at 714.

40.Escario v. National Labor Relations Commission (Third Division), supra note 32, at 275.

41.Supra note 1, at 715.

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