Qualified disabled employees

One of the truly marginalized sectors in our society that sorely needs representation in the House of Representatives under the party-list system, is the handicapped. Fortunately, the Comelec has accredited AKAPIN, a group representing the interest of the handicapped, eligible to participate in the coming party list elections. Unlike other party list organizations with bulging campaign funds to wage a campaign in the tradition of the old corrupt, illegal and fraudulent political style, AKAPIN is trying to win seats in the proper, principled and legal way. In this sense, it is much more handicapped not only physically but financially and politically. So it really needs our votes if only to give a voice in Congress to the marginalized handicapped in our society and to show that elections can still be won without overspending or violating any law.

Indeed, disabled persons are so discriminated against that even in matters of employment they are considered "special workers" who could not become "regular". Such was the case of 56 deaf mutes who were employed by a civic minded commercial bank as Money Sorters and Counters over a period starting 1988 to 1993. Their uniform employment contracts stipulate that they shall be trained for a period of one month, after which the bank shall determine whether or not they should be allowed to finish the 6 month contract term. Furthermore, the bank may terminate the contract at any time for a just and reasonable cause. Unless renewed in writing by the bank, the contract shall automatically expire at the end of the term. Specifically, they are to perform the duties and responsibilities of: sorting out bills according to color; counting each denomination per hundred, either manually or with the aid of counting machines; wrap and label bills per hundred; put the wrapped bills into bundles and submit the bundled bills to the bank teller for verification.

After the expiration of the six months term, the contracts of 37 deaf mutes were renewed. Subsequently, on different dates they were dismissed after working for over six months with some of them working for more than one years. In fact two of them worked from 1988 to 1993. In dismissing these deaf mutes, the bank contended that they were hired only as "special workers" and should not in any way be considered as part of its regular complement; that it never solicited the services of these handicapped employees whose employment was merely an accommodation in response to the requests of government officials and civic minded citizens. They were told from the start that they could not become regular employees because there were no plantilla positions for money sorters whose task used to be performed by tellers. Their contracts were renewed several times not because of need but merely for humanitarian reasons. The bank said that it decided not to renew any more their special employment contracts as the special positions created for them no longer exist.

Forty three of these handicapped workers led by Mila banded themselves and sued the bank before the NLRC. Of the forty three, only twenty seven have performed their tasked for more than six months. The contracts of sixteen of them were not renewed. But the Labor Arbiter and the NLRC dismissed the complaints of all 43. According to the NLRC, all forty three could not be deemed regular employees as they were hired as an accommodation to the recommendation of civic oriented personalities whose employment were covered by contracts with special provisions on the duration as specified in Article 80 of the Labor Code governing employment of handicapped workers.

Were the Labor Arbiter and the NLRC correct?

No.

The stipulations in their employment contracts indubitably conform with

Article 80 of the Labor Code. Succeeding events and the enactment of the Magna Carta for Disabled Persons (RA 7277) however justify the application of Article 280 of the Labor Code on regular employment.

The renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words their disability did not render them unqualified or unfit for the tasks assigned to them. A qualified disabled employee should be given the same terms and conditions of employment as qualified able bodied person as provided by Section 5 of RA 7277. Since the Magna Carta accords them the rights of qualified disabled person, they are thus covered by Article 280 of the Labor Code defining regular employees as those performing activities which are usually necessary or desirable in the usual business or trade of the employer.

Without doubt the task of counting and sorting bills is necessary and desirable to the business of the bank. Thus twenty seven of the 43 employees who performed these tasks for more than six months are considered regular employees. When the bank renewed their contract after the lapse of six months which is akin to probationary employment during which the bank determined the employees fitness for the job, the employees thereby became regular employees. No employer is allowed to determine indefinitely the fitness of its employees.

As regular employees the twenty seven deaf mutes are entitled to security of tenure; that is their services can be terminated only for just and authorized cause. Since the bank failed to show such cause, they are deemed illegally dismissed and are entitled to back wages and reinstatement without loss of seniority rights. Considering that the job of money sorting is no longer available as it has been assigned back to the tellers to whom it originally belonged, the deaf mutes are awarded separation pay in lieu of reinstatement. These deaf mutes have acquired legal rights which must be protected and upheld, not as matter of compassion but as a consequence of law and justice ( Bernardo vs. NLRC, G.R. 122917 July 12, 1999, 310 CSRA 186)