ii. Reinstatement or Execution Pending Appeal (Rule XI)

A. Labor Arbiter

• Jurisdiction – Labor Code, arts. 124 and 224; R.A. No. 8042, as amended by R.A. No. 10022, sec. 10; 2011 NLRC Rules of Procedure, as amended, Rule V, sec. 1
• Mode of Appeal to the NLRC – 2011 NLRC Rules of Procedure, as amended, Rule VI
• Reinstatement and/or Execution Pending Appeal – Labor Code, art. 229; 2011 NLRC Rules of Procedure, as amended, Rule IX, sec. 12

Reinstatement pending appeal

Note: The decision of the Labor Arbiter reinstating a dismissed or separated employee 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. (Labor Code, Art. 229 [223])

Obligation to Reinstate – Order of Reinstatement

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 the reinstatement order is set aside by the NLRC or a reviewing court. The Labor Arbiter's order of reinstatement is immediately executory and the employer has to either re-admit them to work under the same terms and conditions prevailing prior to their dismissal, or to reinstate them in the payroll, and that failing to exercise the options in the alternative, employer must pay the employee's salaries. (Magana v. Medicard Philippines, G.R. No. 174833)

Instances when an order of execution may be appealed

• When execution becomes impossible or unjust, it may be modified or altered on appeal to harmonize the same with justice and the facts (Torres vs. NLRC, G.R. No. 107014, 2000).
• Supervening events may warrant modification in the execution of judgment, as when reinstatement is no longer possible because the position was abolished as a cost-cutting measure due to losses. (Abalos vs. Philex Mining Corp, G.R. 140374, 2002).
• Where the writ is found defective, exceeds or varies the award and/or is irregularly issued. (DBP v. Union Bank, G.R. No. 155838, 2004)

No obligation to refund salaries and wages during pendency of the appeal

An employee cannot be compelled to reimburse the salaries and wages he received during the pendency of his appeal, notwithstanding the reversal by the NLRC of the LA's order of reinstatement. (College of Immaculate Conception v. NLRC, G.R. No. 167563, 2010)

Note: Rule XI, Sec. 14 of the 2011 NLRC Rules of Procedure provide for restitution of amounts paid pursuant to execution of awards during pendency of the appeal. However, it expressly disallows restitution of wages paid due to reinstatement pending appeal.

Execution of a labor judgment which on appeal, had become final and executory

By filing a motion for execution and serving a writ of execution to be served by the sheriff or such law enforcement agency as may be deputized by the DOLE or NLRC. It may also be issued motu propio by the Labor Arbiter. (Labor Code, Art. 230 [224])

Execution of Decision Pending Appeal

General Rule: The NLRC Rules provides that the perfection of an appeal shall stay execution of the decision of the LA.

Exception: Execution of decisions reinstating dismissed employees in labor cases pending appeal.

In the case of Aris, Inc. v. NLRC the Supreme Court explained that the reason for such exception is the compassionate policy on labor and workingman. The State is mandated to afford full protection to labor. If in ordinary civil actions execution of judgment pending appeal is authorized for reasons the determination of which is merely left to the discretion of the judge, the Court saw no reason to withhold it in cases of decisions reinstating dismissed employees. In such cases, the poor employees had been deprived of their only source of livelihood. (Pacios, et. al. v. Tahanang Walang Hagdan, G.R. No. 229579, 2017).

REINSTATEMENT AND/OR EXECUTION PENDING APPEAL

If reinstatement is ordered in an illegal dismissal case, it is immediately executory even pending appeal. This means that the perfection of an appeal shall stay the execution of the decision of the LA except execution of the reinstatement pending appeal.

Self – executing with no need for a writ of execution – only applicable to order issued by Labor Arbiter.

Writ of execution required when reinstatement is ordered by NLRC on appeal, or subsequently by the CA or SC, as the case may be.

Either admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or merely reinstated in the payroll (at the option of the employer, i.e. confidential employee, but the choice must be communicated to the employee by the employer)

Posting of a bond shall not stay the execution of reinstatement.

The unjustified refusal of the employer to reinstate an illegally dismissed employee entitles the employee to payment of his salaries.

Reinstatement Pending Appeal (Art. 229) vs. Order of Reinstatement (Art. 294)