Can you terminate an employee based on HIV status?

The Philippine Supreme Court (SC) has ruled that terminating an employee for testing positive for human immunodeficiency virus (HIV) is illegal.

The SC recently dealt with the case of an overseas Filipino worker who was terminated in the Kingdom of Saudi Arabia after he turned up with an HIV-positive result following a routine medical exam.

Saudi Arabian laws consider an HIV-positive individual unfit to work, and the employee was repatriated to the Philippines in February 2019.

Employee raises illegal dismissal claim

But the employee, dubbed as "AAA" in the case, raised an illegal dismissal claim against recruitment agency Bison Management Corporation with the Labour Arbiter, who dismissed the complaint for "lack of merit."

The National Labour Relations Commission (NLRC), however, reversed this decision in July 2019 and found Bison, its president, and its foreign recruitment agency Saraja Al Jazirah Contracting Est, liable for illegal dismissal.

The Court of Appeal (CA) also upheld this ruling, which prompted Bison to raise the matter to the SC.

But the SC agreed with the CA and the NLRC in the decision made public on Wednesday. The SC ruled that Philippine law governs the terms of the employment contract as well as the rights of the employee.

"If the foreign law stipulated is contrary to law, morals, good customs, public order, or public policy, then Philippine laws shall govern," the SC ruling read.

Termination based on HIV status

And under the Philippine law, termination on the ground of a positive HIV test result is not legal, according to the SC. It cited Republic Act No. 11166, also known as the Philippine HIV and AIDS Policy Act, that makes it unlawful for an employee to be terminated from work because of their HIV status.

"There being no other reason proffered for AAA's dismissal apart from his HIV status, the Court upholds the ruling of the CA that the NLRC did not commit grave abuse of discretion in finding that AAA was illegally dismissed," the SC ruled.

According to the SC, AAA is entitled to salaries for the unexpired portion of his employment contract, as well as moral and exemplary damages, among others.

"Let this case be an affirmation of the State's promise to protect Filipino workers, here and abroad," the SC said.