Immediate Execution of Reinstatement Order by Labor Arbiter.

The decision of the Labor Arbiter reinstating a dismissed or separated employee,

insofar as the reinstatement aspect is concerned, is immediately executory, even
pending appeal. It means that the employee should be reinstated immediately, and
not be made to wait until the outcome of the appeal. The basis for this is found in
paragraph 3 of Article 223, of the Labor Code of the Philippines, as follows:
xxx
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated
employee, insofar as the reinstatement aspect is concerned, shall immediately be
executory, even pending appeal. The employee shall either be admitted back to
work under the same terms and conditions prevailing prior to his dismissal or
separation or, at the option of the employer, merely reinstated in the payroll. The
posting of a bond by the employer shall not stay the execution for reinstatement
provided herein.
xxx
Policy of the Law.
In authorizing execution pending appeal of the reinstatement aspect of a decision of
the Labor Arbiter reinstating a dismissed or separated employee, the law itself has
laid down a compassionate policy which, once more, vivifies and enhances the
provisions of the 1987 Constitution on labor and the working man. (Aris [Phil.] Inc.
vs. NLRC, G.R. No. 90501 August 5, 1991.)
These duties and responsibilities of the State are imposed not so much to express
sympathy for the workingman as to forcefully and meaningfully underscore labor as
a primary social and economic force, which the Constitution also expressly affirms
with equal intensity. Labor is an indispensable partner for the nations progress and
stability. (Ibid.)
Duty to Implement Reinstatement is Ministerial.
The appeal made by the employer on the finding of illegal dismissal will not, by
itself, stall the execution of the order of reinstatement. In order to stall execution,
the remedy of the employer is to apply for restraining order upon filing of the appeal
before the National Labor Relations Commission.
Unless there is a restraining order issued, it is ministerial upon the Labor Arbiter to
implement the order of reinstatement. (Roquero vs. PAL, 2003)
Effect of Refusal of Employer to Reinstate Employee.
The order of reinstatement is immediately executory. The unjustified refusal of the
employer to reinstate a dismissed employee entitles him to payment of his salaries

effective from the time the employer failed to reinstate him despite the issuance of
a writ of execution.
Option of Payroll Reinstatement.
Instead of physically reinstating the illegally dismissed employee to his former
position, the employer has the option to merely reinstate him in the payroll (Article
223, Labor Code).
This is called payroll reinstatement. (Read Payroll Reinstatement.)
Effect of Reversal on Appeal.
Even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is
obligatory on the part of the employer to reinstate and pay the wages of the
dismissed employee during the period of appeal until reversal by the higher court.
On the other hand, if the employee has been reinstated during the appeal period
and such reinstatement order is reversed with finality, the employee is not required
to reimburse whatever salary he received for he is entitled to such, more so if he
actually rendered services during the period.
The Refund Doctrine (Genuino case).
In case of reversal of the award of reinstatement on appeal, the employee is not
required to reimburse the salary he received even if he did not render services
during the period. This has been the consistent ruling in majority of cases.
A divergent view is found in Genuino vs. NLRC, G.R. Nos. 142732-33, December 4,
2007, where the Court held as follows:
If the decision of the labor arbiter is later reversed on appeal upon the finding that
the ground for dismissal is valid, then the employer has the right to require the
dismissed employee on payroll reinstatement to refund the salaries s/he received
while the case was pending appeal, or it can be deducted from the accrued benefits
that the dismissed employee was entitled to receive from his/her employer under
existing laws, collective bargaining agreement provisions, and company practices.
However, if the employee was reinstated to work during the pendency of the
appeal, then the employee is entitled to the compensation received for actual
services rendered without need of refund.
Genuino doctrine, however, found no support in subsequent cases. In Garcia vs. PAL
case, G.R. No. 164856, January 20, 2009, the Court exposed the dearth of Genuino
doctrine and downplayed it as a mere stray posture.
Need for Writ of Execution.

Given that the order of reinstatement is immediately executory, will there still be a
need for a writ of execution to implement the order of reinstatement?
This question was answered in Pioneer Texturing vs. NLRC, 1997, where the Court
held that the award of reinstatement is self-executory, even pending appeal. There
is no more need for a writ of execution. To require the application for the issuance of
a writ of execution would defeat the immediate execution of a reinstatement order
as required by Article 223.
Note, however, that this view is not found in the Labor Code itself. The code only
provides that reinstatement shall be immediately executory, but not selfexecutory (which obviously are two different things).
The rationale for dispensing the need for writ of execution was explicated by the
Supreme Court in Pioneer case (ibid.), as follows:
[] The provision of Article 223 is clear that an award for reinstatement shall be
immediately executory even pending appeal and the posting of a bond by the
employer shall not stay the execution for reinstatement. The legislative content is
quite obvious, i.e., to make an award of reinstatement immediately enforceable,
even pending appeal. To require the application for and issuance of a writ of
execution as prerequisites for the execution of a reinstatement award would
certainly betray and run counter to the very object and intent of Article 223, i.e., the
immediate execution of a reinstatement order. The reason is simple. An application
for a writ of execution and its issuance could be delayed for numerous reasons. A
mere continuance or postponement of a scheduled hearing, for instance, or an
inaction on the part of the Labor Arbiter or the NLRC could easily delay the issuance
of the writ thereby setting at naught the strict mandate and noble purpose
envisioned by Article 223. In other words, if the requirements of Article 224 were to
govern, as we so declared in Maranaw, then the executory nature of a
reinstatement order or award contemplated by Article 223 will be unduly
circumscribed and rendered ineffectual[]

(Published in Personnel Management Association of the Philippines [PMAP] IR Focus, Issue No. 6)
In many warm mornings on my way to the National Labor Relations Commission (NLRC), I would sometimes
daydream of lounging on a beach somewhere, rather than confronting another labor-management conflict. As sure as
the sun rises, however, sparks in the constant tug-of-war between labor and management are bound to arise. I have
worked with both camps, so to speak, and I really have no problem with the bias of law in favor of labor. However, as

the Supreme Court itself noted, this bias is not an excuse to kill the goose that lays the golden egg. Justice should
always be for the deserving.
For instance, a company has a patently irresponsible and incompetent employee. He sleeps on his job, complains
about everything and accomplishes nothing. Yet, when the company terminated the employee, the company forgot to
give him notices. When the employee filed a case for illegal dismissal, the Labor Arbiter sustained the employee and
ordered his reinstatement. The employee appealed the Labor Arbiters decision.
There are two basic issues in the foregoing scenario. The first issue relates to the employers violation of statutory
due process, which is the subject of flip-flopping Supreme Court decisions. In the Serrano case (2000), the Supreme
Court ruled that where the employer had a valid reason to dismiss an employee but did not follow the twin
requirements of due process, i.e., notice and hearing, the dismissal is ineffectual and the employer must pay full
backwages from the time of termination until it is judicially declared that the dismissal was for a just or authorized
cause. Fortunately, this is no longer the controlling doctrine. On 17 November 2004, the Supreme Court promulgated
its decision in Agabon reversing this rule. Now, where the dismissal is for a just cause, the lack of due process should
not nullify the dismissal, or render it illegal, or ineffectual. However, the employer is liable for damages, the amount of
which is subject to the discretion of the court, for violating the employees right to due process. This is a reversion
to the pre-Serrano doctrine enunciated in the Wenphil case. Indeed, it is only fair that when the dismissal is for cause,
the failure to comply with the twin-notice rule should not invalidate the dismissal.
The second issue relates to reinstatement pending appeal. In the cases of Pioneer Texturizing Corp. vs. NLRC and
International Container Terminal Services, Inc. vs. NLRC, the Supreme Court ruled that an award or order for
reinstatement is self-executory and, hence, does not require a writ of execution. After receipt of the decision or
resolution ordering the employees reinstatement, the employer must between two options, in accordance with Article
223 of the Labor Code, to wit:
(1) re-admit the employee to work under the same terms and conditions prevailing prior to his dismissal; or
(2) reinstate the employee in the payroll.
In both instances, the employer has to notify the employee about the chosen option. Moreover, the employer must
give the employee reasonable time to wind up his current preoccupation or at least to explain why he could not return
to work at once. In a recent case, the Supreme Court frowned upon a companys act of giving the employees only five
days to report to their posts and immediately terminating said employees when they failed to do so. The Supreme
Court emphasized that Article 223 of the Labor Code is intended for the benefit of the employee and cannot be used
to defeat their own interest. In short, Article 223 cannot be interpreted to give the employer the right to remove an
employee who fails to immediately comply with the reinstatement order, especially when there is reasonable
explanation for the failure.
Article 223 of the Labor Code, as amended by Republic Act No. 6715 which took effect on 21 March 1989, provides:
Art. 223. Appeal. Decisions, awards or orders of the Labor Arbiter are final and executory unless appealed to the
Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders.
Such appeal may be entertained only on any of the following grounds: xxx In any event, the decision of the Labor
Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall

immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same
terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated
in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein.
The constitutionality of Section 223 was upheld in Aris (Phil.), Inc. vs. NLRC, which case is cited both in
the Pioneer and Maranaw Hotel cases with divergent results. In the earlier case ofMaranaw Hotel, the Supreme
Court ruled that reinstatement pending appeal is not immediately executory, which simply means that until a writ of
execution is issued by the proper tribunal, the employee is not entitled to reinstatement whether actual or in payroll. In
the later case, the Supreme Court explained that Article 224 of the Labor Code, adverted to in the Maranaw case,
applies only to final and executory decisions which are not within the coverage of Article 223.
On one hand, this doctrine is grossly unfair to the employer. In case the appellate court rules that the dismissal was
for cause, why would the employer pay for the employees salaries from the time the reinstatement was ordered until
the reversal of such decision? Worse, considering that the cause for the dismissal might be the gross incompetence
of the employee, the employer may opt for payroll reinstatement and hire someone else to do the job. This is definitely
a double whammy for the employer.
Balancing this interest is the States concern for the workers, thus:
xxx Then, by and pursuant to the same power (police power), the State may authorize an immediate implementation,
pending appeal, of a decision reinstating a dismissed or separated employee since that saving act is designed to
stop, although temporarily since the appeal may be decided in favor of the appellant, a continuing threat or danger to
the survival or even the life of the dismissed or separated employee and his family.
The foregoing is another illustration of the conflict of interests between labor and management. For this issue and at
this point in time, labor has the upper hand. However, as shown in the case of Wenphil, Serrano and Agabon,
jurisprudence is not cast in stone and may yet swing the other way.1

The dearth of authority supporting Genuino is not difficult to fathom for it would
otherwise render inutile the rationale of reinstatement pending appeal.

x x x [T]he law itself has laid down a compassionate policy which, once more,
vivifies and enhances the provisions of the 1987 Constitution on labor and the
working man.

xxxx

http://jlp-law.com/blog/reinstatement-pending-appeal-waiting-pendulum-swing/

These duties and responsibilities of the State are imposed not so much to express
sympathy for the workingman as to forcefully and meaningfully underscore labor as
a primary social and economic force, which the Constitution also expressly affirms
with equal intensity. Labor is an indispensable partner for the nation's progress and
stability.

xxxx
x x x In short, with respect to decisions reinstating employees, the law itself has
determined a sufficiently overwhelming reason for its execution pending appeal.

xxxx
x x x Then, by and pursuant to the same power (police power), the State may
authorize an immediate implementation, pending appeal, of a decision reinstating a
dismissed or separated employee since that saving act is designed to stop,
although temporarily since the appeal may be decided in favor of the appellant, a
continuing threat or danger to the survival or even the life of the dismissed or
separated employee and his family.[16]2

http://sc.judiciary.gov.ph/jurisprudence/2009/jan2009/164856.htm