Non-ratified treaty¹

Dismissal/ Direct application of a convention/ Direct resolution of a dispute on the basis of international law

This decision is the result of an appeal lodged by the enterprise Broadwater Marine Phils. Inc against the decision handed down by a labour arbiter, in which it was found that the dismissal of Ms. Imefhel (the complainant at first instance), was illegal. The claimant worked for the enterprise from 5 October 2007 until 21 June 2012, the date when she was fired after having requested, along with two work colleagues, a disciplinary investigation into their boss. The claimant indicated that since the appointment of her boss, various labour disputes had arisen between them, which had affected her working conditions to the extent that she was no longer receiving benefits such as housing benefits and overtime pay.

The National Labour Relations Commission limited their investigation to defining whether or not this was a case of illegal dismissal and, therefore, whether the worker had a right to compensation. In the Commission’s view, depriving a person of financial support was to deprive him/her of their right to life, a breach of the Constitution. The Constitution affirms labour as a primary social economic force, and in this sense the State is obliged to protect the rights of workers and promote their welfare.

Additionally, the Commission argued that, in the international sphere, the ILO Convention No. 158, establishes certain rules governing the termination of employment that were applicable in this case, in particular Article 4 of that Convention, which states:

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.”

Despite the fact that ILO Convention No. 158 had not been ratified by the Philippines, the Commission held that it could refer to that Convention since article II of Section 2 of the Constitution indicated that Philippines adopted generally accepted international principles of law as part of national law:

 “Since Section 2, Article II of the 1987 Philippine Constitution states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land”, the above-provision becomes operative and effective within our domestic legal system without the need for further transformation or legislative action.”²

With the understanding that Convention No. 158 was applicable, the Commission proceeded to analyse the evidence provided by both parties and reached the conclusion that the enterprise had not provided sufficient evidence to support the claim that the dismissal had been fair. On the contrary, their declarations on the facts indicated that the worker had been dismissed for the mere fact of having submitted a request for an investigation to be carried out into her boss. Given the above, the Commission decided that, in light of ILO Convention No. 158 and the Constitution, the dismissal of Ms Imefhel was unfair and she therefore had the right to compensation, upholding the decision of the first instance.

¹ ILO Termination of Employment Convention, 1982 (No. 158).

² Page 8 of the decision.