SC: HIV-positive status not ground for firing

MANILA, Philippines — Even if a Filipino is working abroad, simply testing positive for human immunodeficiency virus (HIV) cannot be used as the sole basis for termination of employment, the Supreme Court said in a recent landmark decision.

And even if Philippine law cannot be expected to be applied in foreign jurisdictions, an employment contract should explicitly stipulate the governing foreign law and not be contrary to Philippine laws, it added.

“Let this case be an affirmation of the State’s promise to protect Filipino workers, here and abroad,” Associate Justice Alfredo Benjamin Caguioa said in a decision he wrote for the high tribunal’s Third Division.

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The ruling stemmed from the case of an overseas Filipino worker (OFW) who was deployed to Saudi Arabia in 2017 as a cleaner under a two-year contract through the recruitment agency Bison Management Corp.

In January 2019, however, the OFW underwent a routine medical examination and was found positive for HIV, prompting the foreign employer to terminate employment.

The employer cited Saudi Arabian laws, which supposedly state that an HIV-positive individual is “considered unfit to work.”

The OFW was repatriated to the Philippines in February 2019 and later filed an illegal dismissal complaint against Bison.

In a ruling dated July 2019, the labor arbiter dismissed the complaint because of the Saudi policy that disallowed HIV-positive people from working there.

Illegal dismissal

The labor arbiter further ruled that Republic Act No. 8504, or the Philippine AIDS (acquired immunodeficiency syndrome) Prevention and Control Act of 1998, was a “local law” that applies only “within our jurisdiction and not to the [Kingdom of Saudi Arabia].”

When the case was elevated to the National Labor Relations Commission (NLRC), the quasi-judicial body ruled in favor of the OFW, declaring that he was illegally dismissed by Bison.

Bison elevated the case to the Court of Appeals, but it also agreed with the NLRC’s decision, which held that Philippine law governs overseas employment contracts along with the rights of the employee.

Bison went next to the Supreme Court, which said there was a “narrow exception” when an employer and employee agree to undertake a contract under a foreign law.

Four requisites

These exceptions, however, must follow four requisites, including the explicit stipulation in the overseas employment contract that a specific foreign law shall govern; that the foreign law invoked must be proven before the courts; that the foreign law must not be contrary to Philippine law, morals, good customs, public order, or public policy; and that the contract must be processed through the Philippine Overseas Employment Administration, now known as the Department of Migrant Workers.

“It appears that the first and fourth requisites are present. However, the second requisite and the third requisite, which is the most important, are absent,” the high tribunal said.

It noted that Bison failed to show a copy of the Saudi law prohibiting employment for HIV-positive people.

Even if the agency had proven that such a law existed, the Supreme Court said RA 11166 should take precedence because the Saudi law was contrary to Philippine law.

It also pointed out that RA 8504, cited by the labor arbiter, had already been replaced by RA 11166, or the Philippine HIV and AIDS Policy Act, which prohibits the termination of employees solely on the basis of their HIV status.

In ruling against Bison, the high court said the OFW was thus entitled to salaries for the unexpired portion of his employment contract, along with moral and exemplary damages, among others.