When a Dismissed Employee Can Vote: Certification Election Rules Clarified

The Supreme Court recently settled important questions about certification elections: when a dismissed employee remains eligible to vote, and how blank or unfilled ballots affect the computation of the required majority. In Mercury Drug Corporation (Distribution Center) Employees Union-FFW v. Mercury Drug Corporation (G.R. No. 263812, February 24, 2026), the Court denied the union's petition and affirmed the Court of Appeals' rulings, providing clear guidance on both issues.

The Case Background

The union filed a request to be certified as the sole and exclusive bargaining agent of approximately 109 rank-and-file employees of Mercury Drug Corporation's Libis distribution center. A certification election was held on June 11, 2018, with employees choosing between the union and "No Union."

The results showed 45 votes for the union, 44 for "No Union," 4 spoiled ballots, and 1 segregated ballot. The segregated ballot belonged to Bernabe Valencia Jr., the union president, who had been dismissed from employment on June 2, 2018 for alleged violation of company rules. His vote was segregated because of his dismissal.

The Dispute Over Valencia's Ballot

The central question was whether Valencia, having been dismissed, was still eligible to vote. Under Section 5, Rule IX of DOLE Department Order No. 40-03, a dismissed employee may vote if the legality of the dismissal was contested before a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of the certification election.

Valencia filed a Notice of Strike with the National Conciliation and Mediation Board (NCMB) on June 7, 2018—five days after his dismissal and four days before the election. He filed his illegal dismissal case with the National Labor Relations Commission (NLRC) only on February 7, 2019, months after the election.

The Supreme Court held that a Notice of Strike cannot substitute for contesting a dismissal before the proper forum. Under Article 224 of the Labor Code, labor arbiters have original and exclusive jurisdiction over termination disputes. A notice of strike, by its nature and purpose, addresses unfair labor practices or deadlocks in collective bargaining negotiations—not individual termination disputes. Since Valencia failed to contest his dismissal before the NLRC at the time of the election, he was not an eligible voter.

How Blank Ballots Are Counted

The Court also clarified how blank or unfilled ballots should be treated. Under DOLE Department Order No. 40-03, as amended by Department Order No. 40-I-15, a blank or unfilled ballot is now considered an "abstention"—a valid ballot cast by an eligible voter. Abstentions are not negative votes, but they are considered in the counting for purposes of determining a valid election.

The Court rejected the union's argument that abstentions should count only for determining whether a majority of eligible voters cast their ballots (the first majority under the "double majority rule") but not for computing whether a choice garnered the majority of valid votes cast (the second majority). Once a ballot is counted for the first majority, it must also be included in computing the second majority.

The Mathematics of the Election

Applying these rules, the Court found that the union failed to secure the required majority. Of the 94 ballots cast, Valencia's segregated ballot was excluded as ineligible, and two ballots were spoiled and not timely protested. This left 91 valid ballots, including two abstentions. The union received 45 votes—short of the 46 needed for a simple majority of 91 valid votes.

Even assuming Valencia's ballot were opened and counted in the union's favor, the valid votes would rise to 92, making the required majority 47. With only 46 votes in its favor, the union would still fall short.

Practical Takeaways

• Dismissed employees must contest their dismissal before the NLRC to remain eligible to vote in a certification election. Filing a Notice of Strike with the NCMB does not satisfy this requirement.
• The timing matters. The dismissal must be contested before a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of the certification election.
• Blank or unfilled ballots are abstentions, not spoiled ballots. They count as valid votes for purposes of determining both the validity of the election and the majority required for certification.
• The double majority rule requires both (1) a majority of all eligible voters casting their ballots, and (2) a majority of valid votes cast favoring one choice.
• Failure to disclose related cases in a Certification Against Forum Shopping may result in dismissal, though the Court may proceed on the merits in the interest of settling legal issues.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.