Dear PAO,
I used to work as an OFW in the Middle East. However, my employment was terminated after I tested positive for HIV. I contacted my recruitment agency here in the Philippines, but they told me that they cannot offer any help because I was legally dismissed. They explained that being HIV-positive is one of the valid causes of termination as per my contract and the labor law of my foreign employer. Can I still file a case for illegal dismissal here in the Philippines?
Donna
Dear Donna,
Yes, you may still file a case for illegal dismissal. In Bison Management Corporation v. Dale P. Pernito, GR 256540, Feb. 14, 2024, Ponente: Associate Justice Alfredo Benjamin Caguioa, the Supreme Court ruled that in labor cases, if the foreign law is contrary to our law, morals, good customs, and public order, or public policy, then Philippine laws shall govern, saying:
“Even if it were truly ‘undeniable’ and ‘it is all over the internet’ that Saudi Arabia does not allow persons who test positive for HIV to work there, as Bison claims, the Court had already settled in Pakistan International Airlines Corp. v. Ople that if the foreign law stipulated is contrary to law, morals, good customs, public order, or public policy, then Philippine laws shall govern. xxx
“In Pakistan International Airlines, the contract expressly stipulated that 1) Pakistan law applies and 2) the employer could terminate the employee at any time and for any cause satisfactory to itself. Even with said stipulations, the illegal dismissal case was decided under Articles 280 and 281 of the Labor Code of the Philippines. The Court therein proclaimed the labor relationship between an OFW and his or her foreign employer as ‘much affected with public interest and that the otherwise applicable Philippine laws and regulations cannot be rendered illusory by the parties agreeing upon some other law to govern their relationship.’”
Thus, regardless of the existence of any foreign law authorizing termination due to acquiring Human Immunodeficiency Virus (HIV), you are still protected against illegal dismissal by virtue of our domestic laws. To be precise, termination on the ground of a positive HIV test result is not legal under Philippine law. Rejection of job application, termination of employment, or other discriminatory policies in hiring, provision of employment and other related benefits, and promotion or assignment of an individual solely or partially on the basis of actual, perceived, or suspected HIV status are categorically prohibited by the law (Section 49[a] of Republic Act No. 11166, or the Philippine HIV and AIDS Policy Act). Therefore, you may still file a case for illegal dismissal against your agency and foreign principal, as their liability for claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damage is joint and several. (Section 10, Republic Act 8042, as amended).
We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
