Illegal dismissal and personal liability of corporate officers; law and jurisprudence.

I wish to share to my readers the legal and jurisprudential parts of a recent reply position paper in a labor case that our law office has prepared under my direct supervision, for legal research purposes.

REPLY POSITION PAPER FOR THE COMPLAINANT

THE COMPLAINANT x x x, by counsel, respectfully states: 1. The two (2) basic issues in this case are whether X X X was illegally dismissed and whether the respondents should be held jointly and severally liable for tort and damages. X x x. 2. Please note that Article 281 of the Labor Code on probationary employment (applicable to X x x) provides that the services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. It further provides that an employee who is allowed to work after a probationary period shall be considered a regular employee. In the employment contract of X X X, his probation actually was 3 months. He had completed his first 3 months it without any negative action on the part of respondents. He was allowed to proceed to another renewable (2nd phase) 3 months of probation. At this time, no formal performance evaluation was conducted. The respondents simply dismissed him by reason of the above-mentioned two incidents. 3. Further, it must be noted Article 282 of the Labor Code (termination by employer) provides that an employer may terminate an employment for: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and

(e) Other causes analogous to the foregoing. To repeat: None of the foregoing grounds applies to X X X. His subject actuations were not harmful, were without malicious intent to injure, harm, intimidate, or threaten, or to commit sexual harassment or acts of lasciviousness or, in any manner, to commit acts of disrespect towards his women colleagues. 4. At this point, it must be repeated, for emphasis, that X X X was not afforded the opportunity: to hire a private lawyer (a basic human right to counsel) during the rush administrative hearing; to confront the complainants and witnesses against him by way of cross examination; to study the documents, records, and evidence against him in the possession of the respondents; to secure formal minutes and transcripts of the said hearing (there being none, it now appears); and at the least, the fair time to prepare for his own defense. His human right to DUE PROCESS OF LAW was violated. End result: A family man, with good moral character, good education and work experience, and good name and honor has been rendered jobless, exposing his helpless wife and young children to hunger, suffering, anxieties, mental pain, anguish, and public ridicule, all of which deserve the imposition of MORAL and EXEMPLARY DAMAGES of P500, 000.o0 each and ATTORNEYS FEES of 10% of recoverable amounts, plus COSTS OF SUIT and LITIGATION EXPENSES. 5. X X X reiterates the jurisprudence he had earlier cited in his Position Paper in support of his arguments, to wit: 5.1. Marcial Gu-Miro v. Rolando C. Adorable, et. al., GR No. 160952, 20 August 2004, citing Asuncion v. NLRC, GR No. 129329, 31 July 2001, 362 SCRA 56, and Dizon v. NLRC, GR No. 79554, 14 December 1989, 180 SCRA 52). Solidbank Corporation v. CA, et. al., GR No. 151026, August 25, 2003). Felix v. NLRC, GR No. 148256, November 17, 2004 citing Pilipinas Bank v. NLRC, 215 SCRA 750, 756 (1992), and Quezon Electric Cooperative v. NLRC, 172 SCRA 88, 97 (1989)). Philippine Commercial Industrial Bank v. Cabrera, GR No. 160386, March 31, 2005. Hacienda Bino et al v. Cuenca et al, GR No. 150478, April 15, 2005 PLDT vs. NLRC and Enrique Gabriel; G.R. No. 106947; February 11, 1999. SOLVIC INDUSTRIAL CORP. and ANTONIO C. TAM, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and DIOSDADO LAUZ, respondents. [G.R. No. 125548. September 25, 1998]. Melody Paulino Lopez V. NLRC, G.R. No. 125548, October 8,1999; Martinez, J.; and CAINGAT vs. NLRC, et al, GR 154308, March 10, 2005 6. The Civil Code provides when a person may be held liable for DAMAGES arising from TORT, QUASI DELICT, ABUSE OF RIGHT, MALICIOUS PROSECUTION, and other unjust, unfair and abusive acts that injure ones constitutional and statutory rights as a person, citizen, and worker, to wit: Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

5.2. 5.3. 5.4. 5.5. 5.6. 5.7.

5.8. 5.9.

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Art. 23. Even when an act or event causing damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: X x x. (6) The right against deprivation of property without due process of law; X x x. (8) The right to the equal protection of the laws; X x x. (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; X x x.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. X x x. Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a) Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. Art. 2178. The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict. (n) Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (n) Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. X x x. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. X x x. The responsibility treated in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. Art. 2194. The responsibility of two or more persons who are liable for quasi-delict is solidary.

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant. Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; X x x. (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim; X x x. (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen's compensation and employer's liability laws; X x x. (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. In all cases, the attorney's fees and expenses of litigation must be reasonable. Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission. Art. 2219. Moral damages may be recovered in the following and analogous cases: X x x. (10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. X x x. Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. Art. 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated.

Art. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages.

7. ABUSE OF RIGHT as a legal doctrine was dissected in the case of NIKKO HOTEL MANILA GARDEN, et al, vs. REYES, GR 154259, February 28, 2005, where, inter alia, Articles 19 and 21 of the Civil Code were invoked. Although the hotel was not held liable for damages, the Court took the case as an opportunity to make an extensive discussion of the concept of ABUSE OF RIGHT, which X X X hereby adopts in this case in support of his legal theory, thus: X x x. Article 19, known to contain what is commonly referred to as the principle of abuse of rights,[59] is not a panacea for all human hurts and social grievances. Article 19 states: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Elsewhere, we explained that when a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible.[60] The object of this article, therefore, is to set certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties.[61] These standards are the following: act with justice, give everyone his due and observe honesty and good faith.[62] Its antithesis, necessarily, is any act evincing bad faith or intent to injure. Its elements are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.[63] When Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the Civil Code. Article 20 pertains to damages arising from a violation of law [64]

which does not obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states: Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Article 21[65] refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to injure.[66] A common theme runs through Articles 19 and 21,[67] and that is, the act complained of must be intentional.[68] X x x.
Notes (laws and cases cited above):
[47] [48]

E.L. Pineda, Torts and Damages Annotated, p. 52 (2004 ed). Garciano v. Court of Appeals, G.R. No. 96126, 10 August 1992, 212 SCRA 436, 440. [49] cf. Servicewide Specialists, Inc. v. Intermediate Appellate Court, G.R. No. 74553, 08 June 1989, 174 SCRA 80, 88. [50] Sangco, Torts and Damages Vol.1 , pp. 83-84. [51] Floro v. Llenado, G.R. No. 75723, 02 June 1995, 244 SCRA 713, 720. [58] Article 2180, Civil Code. [59] Globe-Mackay Cable and Radio Corp. v. Court of Appeals, G.R. No. 81262, 25 August 1989, 176 SCRA 779, 783. [60] Albenson Enterprises Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993, 217 SCRA 16, 25. [64] Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. See Globe Mackay, supra, note 61 at 784. [72] Art. 2234, Civil Code.

8. Respondents cited the case of MERCURY DRUG CORPORATION vs. NATIONAL LABOR RELATIONS COMMISSION, NLRC SHERIFF and CESAR E. LADISLA, G.R. No. 75662 September 15, 1989, but it is not applicable in this case. In the said case, the private respondent Cesar E. Ladisla was employed by petitioner Mercury Drug Corporation as a Stock Analyst at its Claro M. Recto Branch. He had been with the company for two years and nine months. On August 15, 1977 he was apprehended by representatives of Mercury Drug while in the act of pilfering company property consisting of three (3) bottles of Persantin and one (1) bottle of Valoron at 100 tablets per bottle with a total value of P272.00. He admitted his guilt to the investigating representatives of petitioner company and executed a handwritten admission. Said admission was repeated verbally at the police station before the arresting officer as shown in the Booking Sheet and Arrest Report which was signed and authenticated by Ladisla. On August 19, 1977, petitioner, while simultaneously placing private respondent on preventive suspension, filed before the Department of Labor an application for the termination of private respondent's employment on grounds of dishonesty and breach of trust. All of the foregoing facts do not apply in the present case. X X X was and is not being charged for DISHONESTY, THEFT, BREACH OF TRUST AND CONFIDENCE and the like. He did not make any CONFESSION of criminal guilt.

9. Respondent cited the case of MERALCO VS. NLRC, GR 78763, JULY 12, 1989, 175 SCRA 277. Again this case is not applicable to X X X. In the said case the facts were as follows: Private respondent Signo was employed in petitioner company as supervisor-leadman since January 1963 up to the time when his services were terminated on May 18, 1983. In 1981, a certain Fernando de Lara filed an application with the petitioner company for electrical services at his residence at Peafrancia Subdivision, Marcos Highway, Antipolo, Rizal. Private respondent Signo facilitated the processing of the said application as well as the required documentation for said application at the Municipality of Antipolo, Rizal. In consideration thereof, private respondent received from Fernando de Lara the amount of P7,000.00. Signo thereafter filed the application for electric services with the Power Sales Division of the company. It was established that the area where the residence of de Lara was located is not yet within the serviceable point of Meralco, because the place was beyond the 30-meter distance from the nearest existing Meralco facilities. In order to expedite the electrical connections at de Lara's residence, certain employees of the company, including respondent Signo, made it appear in the application that the sari-sari store at the corner of Marcos Highway, an entrance to the subdivision, is applicant de Lara's establishment, which, in reality is not owned by the latter. As a result of this scheme, the electrical connections to de Lara's residence were installed and made possible. However, due to the fault of the Power Sales Division of petitioner company, Fernando de Lara was not billed for more than a year. Petitioner company conducted an investigation of the matter and found respondent Signo responsible for the said irregularities in the installation. Thus, the services of the latter were terminated on May 18, 1983. On August 10 1983, respondent Signo filed a complaint for illegal dismissal, unpaid wages, and separation pay.

In fact, MERALCO lost in the abovecited case. Applying the doctrine of COMPASSIONATE JUSTICE IN LABOR AND SOCIAL LEGISLATION, the Court ruled in favor of the worker who was unjustly dismissed. Thus: X x x. This Court has held time and again, in a number of decisions, that notwithstanding the existence of a valid cause for dismissal, such as breach of trust by an employee, nevertheless, dismissal should not be imposed, as it is too severe a penalty if the latter has been employed for a considerable length of time in the service of his employer. (Itogon-Suyoc Mines, Inc. v. NLRC, et al., G.R. No. L- 54280, September 30,1982,117 SCRA 523; Meracap v. International Ceramics Manufacturing Co., Inc., et al., G.R. Nos. L-48235-36, July 30,1979, 92 SCRA 412; Sampang v. Inciong, G.R. No. 50992, June 19,1985,137 SCRA 56; De Leon v. NLRC, G.R. No. L-52056, October 30,1980, 100 SCRA 691; Philippine Airlines, Inc. v. PALEA, G.R. No. L24626, June 28, 1974, 57 SCRA 489). In a similar case, this Court ruled: As repeatedly been held by this Court, an employer cannot legally be compelled to continue with the employment of a person who admittedly was guilty of breach of trust towards his employer and whose continuance in the service of the latter is patently inimical to its interest. The law in

protecting the rights of the laborers, authorized neither oppression nor self- destruction of the employer. However, taking into account private respondent's 'twenty-three (23) years of service which undisputedly is unblemished by any previous derogatory record' as found by the respondent Commission itself, and since he has been under preventive suspension during the pendency of this case, in the absence of a showing that the continued employment of private respondent would result in petitioner's oppression or self-destruction, We are of the considered view that his dismissal is a drastic punishment. ... . xxx xxx xxx The ends of social and compassionate justice would therefore be served if private respondent is reinstated but without backwages in view of petitioner's obvious good faith. (Itogon- Suyoc Mines, Inc. v. NLRC, et al., 11 7 SCRA 528) Further, in carrying out and interpreting the Labor Code's provisions and its implementing regulations, the workingman's welfare should be the primordial and paramount consideration. This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided for in Article 4 of the New Labor Code which states that "all doubts in the implementation and interpretation of the provisions of the Labor Code including its implementing rules and regulations shall be resolved in favor of labor" (Abella v. NLRC, G.R. No. 71812, July 30,1987,152 SCRA 140). In view of the foregoing, reinstatement of respondent Signo is proper in the instant case, but without the award of backwages, considering the good faith of the employer in dismissing the respondent. X x x. 10. Respondents cited the case of ABBOTT LABORATORIES (PHILIPPINES), INC., and JAIME C. VICTA vs. NATIONAL LABOR RELATIONS COMMISISON and ALBERT BOBADILLA, G.R. No. 76959 October 12, 1987. Again the facts of the said case are not applicable to X X X. It involved the legal issue of UNJUST TRANSFER of a worker which the latter contested as being tantamount to a DEMOTION. In that case, complainant Bobadilla started his employment with respondent company sometime in May 1982. After undergoing training, in September, 1982, competent was designated professional medical representative (PMR) and was assigned to cover the sales territory comprising of Sta. Cruz, Binondo and a part of Quiapo and Divisoria, of the Metro Manila district. In connection with the respondent company's marketing and sales operations, it had been its policy and established practice of undertaking employment movements and/or reassignments from one territorial area to another as the exigencies of its operations require and to hire only applicant salesmen, including professional medical representatives (PMRs) who were willing to take provincial assignments, at least insofar as male applicants were concerned. Likewise, respondent company had made reassignments or transfers of sales personnel which included PMRs from one territorial area of responsibility to another on a more or less regular basis. In complainant's application for employment with respondent company, he agreed to the following: 1) that if employed he win

accept assignment in the provinces and/or cities anywhere in the Philippines; 2) he is willing and can move into and live in the territory assigned to him; and (3) that should any answer or statement in his application for employment be found false or incorrect, he will be subject to immediate dismissal, if then employed. On 22 July 1983, respondent Victa called complainant to his office and informed the latter that he was being transferred effective 1 August 1983 to the newly opened Cagayan territory comprising the provinces of Cagayan, Nueva Vizcaya and Isabela. The transfer order was made formal in a memorandum dated 29 July 1983. Among the reasons given for complainant's selection as PMR for the Cagayan territory were: The territory required a veteran and seasoned PMR who could operate immediately with minimum training and supervision. Likewise, a PMR who can immediately exploit the vast business potential of the area. In a letter dated 1 August 1983, which was received by Abbott on 4 August 1983, competent, thru his lawyer, objected to the transfer on the grounds that it was not only a demotion but also personal and punitive in nature without basis legally and factually. On 8 August 1983, Victa issued another inter-office correspondence to competent, giving the latter up to 15 August 1983 within which to comply with the transfer order, otherwise his would be dropped from the payroll for having abandoned his job. When competent failed to report to his new assignment, Abbott assigned thereat Fausto Antonio T. Tibi another PED PMR who was priorly covering the provinces of Nueva Ecija and Tarlac. Meanwhile, complainant filed applications for vacation leave from 2 to 9 August 1983, and then from 10 to 13 August 1983. And on 18 August 1983, he filed the present complaint. After due consideration of the evidence adduced by the parties, the Arbiter below ruled for the respondent on the ground that the complainant is guilty of gross insubordination. 11. Respondents cited the case of FEDERICO NUEZ vs. NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER MANUEL ASUNCION, PHILIPPINE OVERSEAS TELECOMMUNICATIONS CORPORATION (PHILCOMSAT), HONORIO POBLADOR, RAMON NIETO, FRED AUJERO and ROMEO VALENCIA, G.R. No. 107574 December 28, 1994. Again this case is not applicable to X X X. In the said case, petitioner Nuez was a driver of private respondent PHILCOMSAT since 1 May 1970. On 25 November 1988 he was assigned to its station in Baras, Antipolo, Rizal, from seven-thirty in the morning to three-thirty in the afternoon. At one-thirty that afternoon, Engr. Jeremias Sevilla, the officer in charge and the highest ranking official of the station, asked Nuez to drive the employees to the Makati head office to collect their profit shares. Nuez declined saying that he had an important personal appointment right after office hours. At two-thirty that same afternoon, he also declined a similar order given on the phone by his vehicle supervisor, Pedro Sibal, reasoning that "Ayaw kong magmaneho dahil may bibilhin ako sa Lagundi. Kung gusto mo yong 'loyalist' ang magmaneho." In his memorandum of 28 November 1988, Station Manager Ramon Bisuna required Nuez to explain within seventy-two hours why he should not be administratively dealt with for disobeying an order of their most senior officer on 25 November 1988. In his written reply dated 1 December 1988, Nuez mentioned a personal appointment in justification for his refusal to render "overtime" service and that "ferrying employees . . . was not a kind of emergency that . . . warrants (the) charge of disobedience." Taking into consideration the reports of Engr. Sevilla and Supervisor Sibal as well as the letter of petitioner Nuez, AVP for Transport and Maintenance Fredelino Aujero referred the matter to Vice President for Administration Ramon V. Nieto for appropriate action and invited his attention to the Code of Disciplinary

Action of the company providing that "refusal to obey any lawful order or instruction of a superior is classified as insubordination, an extremely serious offense and its first infraction calls for dismissal of the erring employee." The report of Aujero pointed out that Nuez could have obeyed the directive and still have enough time to attend to his appointment because the order was given him two hours before his tour of duty ended and, moreover, he was seen playing billiards after office hours. Vice President Nieto then issued a memorandum to Nuez terminating his employment effective 26 December 1988 for insubordination. In his letter for reconsideration dated 1 January 1989, Nuez explained to Vice President Nieto that after failing to get a ride to Lagundi, he went with the company coaster at four-thirty in the afternoon and then proceeded to TMC to play billiards when the person he wanted to see at Lagundi had already left. On 6 March 1989, Nuez filed this suit for illegal dismissal, indemnity pay, moral and exemplary damages and attorney's fees. On 29 January 1990, Labor Arbiter Manuel P. Asuncion dismissed the complaint for lack of merit but awarded Nuez a "monetary consideration" in an amount equivalent to his one-half month salary for every year of service. On appeal, the National Labor Relations Commission affirmed on 15 June 1992 the decision of the Labor Arbiter but limited the financial assistance to Nuez in an amount equivalent to three months basic pay only. 12. As to the issue of PERSONAL LIABILITY for damages of CORPORATE OFFICERS in illegal dismissal cases, although the case of M+W ZANDER PHILIPPINES, INC. and ROLF WILTSCHEK vs. TRINIDAD M. ENRIQUEZ, G.R. No. 169173, June 5, 2009, which cited the case of EPG Construction Company, Inc., et al. v. Court of Appeals, et al., G.R. No. 103372, June 22, 1992 (also cited by respondents in their position paper, pp. 26, et, seq.), held that the general manager of a corporation should not be made personally answerable for the payment of an illegally dismissed employee's monetary claims arising from the dismissal because the employer corporation has a separate and distinct personality from its officers who merely act as its agents, it cited a clear EXCEPTION, that is, where the official "had acted maliciously or in bad faith," in which event he may be made personally liable for his own act. X X X submits that, in this case, respondents acted on bad faith and with malice when they ABUSED their right to discipline X X X; when they relied on flimsy grounds (NOT GROSS OR HABITUAL OR SERIOUS OR GRAVE violations as provided by the Art. 282 of the Labor Code) to dismiss him; when they RUSHED, RAILROADED and MANIPULATED the sole administrative hearing without informing X x x of his human right to counsel (while two lawyers represented the respondent Company and its prosecuting corporate officers); when they and their agents did not grant X x x the fair opportunity to confront the complainants and witnesses against him; when they did not give him advance copies of the alleged complaints and other documentary evidence against him before the administrative hearing (Note: The respondents, thru their lawyer, gave copies of the 201 File and the Administrative Case Record of X x x only when this case had been filed with the NLRC and only upon motion in open court and reiterated in writing made by counsel for X x x); when X x x termination date was made effective on the very day of receipt by him of the notice of dismissal (February 2, 2012); when the president X X Xdid not sign the notice of dismissal, contrary to the companys code of discipline/conduct; when X X Xand X X X did not attend the sole administrative hearing and thus had no personal knowledge of the facts and exhibits adduced in evidence during such hearing and yet they signed and/or affirmed the notice of dismissal and rejected X X X appeal to X x xas if they personally knew the entire case record and proceedings.

RESPONDENTS must be made to pay for the MENTAL ANGUISH, EXTREME ANXIETIES, SLEEPLESS NIGHTS, BESMIRCHED REPUTATION, AND PUBLIC RIDICULE that X x x has suffered and continues to suffer by reason of the abusive act of respondents in unjustly dismissing him from the service, which act has jeopardized his ability to financially support his two young children and his wife and to pay for his financial obligations to his creditors. Yes, they may be prominent stockholders and well-paid officers of a huge corporation as X x x Global City, Inc., occupying top positions in their own little kingdoms. But that does not give them the dictatorial right to patently and tortuously trample upon the rights of X x x, a worker and a Filipino citizen whose rights are protected by the law or to endanger the very physical subsistence and existence of his helpless family by unjustly dismissing him from his source of livelihood and income. 13. The case of LLORENTE vs. SANDIGANBAYAN, ET AL., EN BANC, [G.R. No. 85464. October 3, 1991] is applicable by analogy as to the issue of the personal liability of private and public officers for acts done in bad faith, with abuse of right, with graver abuse of discretion, and the like. Syllabus. X x x. CIVIL LAW; INDEPENDENT CIVIL ACTIONS; DAMAGES FOR ACTS DONE IN BAD FAITH; CASE AT BAR. The acts of the petitioner were legal (that is, pursuant to procedures), as he insists in this petition, yet it does not follow, as we said, that his acts were done in good faith. For emphasis, he had no valid reason to "go legal" all of a sudden with respect to Mr. Curio, since he had cleared three employees who, as the Sandiganbayan found, "were all similarly circumstanced in that they all had pending obligations when, their clearances were filed for consideration, warranting similar official action. The Court is convinced that the petitioner had unjustly discriminated against Mr. Curio. It is no defense that the petitioner was motivated by no ill-will (a grudge, according to the Sandiganbayan), since the facts speak for themselves. It is no defense either that he was, after all, complying merely with legal procedures since, as we indicated, he was not as strict with respect to the three retiring other employees. There can be no other logical conclusion that he was acting unfairly, no more, no less, to Mr. Curio. It is the essence of Article 19 of the Civil Code, under which the petitioner was made to pay damages, together with Article 27, that the performance of duty be done with justice and good faith. We believe that the petitioner is liable under Article 19. The Court finds the award of P90,000.00 to be justified by Article 2202 of the Civil Code, which holds the defendant liable for all "natural and probable" damages. Hermenegildo Curio presented evidence that as a consequence of the petitioner's refusal to clear him, he failed to land a job at the Philippine Cotton Authority and Philippine First Marketing Authority. He also testified that a job in either office would have earned him a salary of P2,500.00 a month, or P150,000.00 in five years. Deducting his probable expenses of reasonably about P1,000.00 a month, or P60,000.00 in five years, the petitioner owes him a total of actual damages of P90,000.00. X x x.

14. Further on the issue of personal liability of officers, by analogy, the case of The City of Angeles, Hon. Antonio Abad Santos vs. CA, et al., G.R. No. 97882, Aug. 26, l996, citing Rama vs. CA, 148 SCRA 498; San Luis vs. CA, 174 SCRA 258, is applicable. In that case, a donation of a parcel of land to the City of Angeles, Pampanga was made for the sole purpose of using it as the site of the Angeles City Sports Center except cockfighting. Instead, a Drug Rehabilitation Center was constructed upon approval and orders of the mayor and the members of the sangguniang panglunsod. In ordering the demolition of the Center and the reimbursement of the public funds spent for the construction of the Center, the Court held that it must be borne by the officials of Angeles City who ordered and directed the construction. It held that public officials are not immune from damages in their personal capacities arising from acts done in bad faith. They are liable in their personal capacities for whatever damages they may cause by their acts done with malice and in bad faith or beyond the scope of their authority or jurisdiction.[citing Vidad vs. RTC Negros Oriental, Branch 42, 227 SCRA 271, M.H. Wylie vs. Rarang, 209 SCEA 357; Orocio vs. COA, 213 SCRA 109]. But such officials must be sued in their personal capacity. In this case the public officials deliberately violated the law, and persisted in their violation, attempted to deceive the courts by their pretended change in the use of the Center and making it a mockery of justice. The Court held that public officials were held liable personally for damages arising from their illegal acts done in bad faith if said officials were sued both in their official and personal capacities. Thus held the Court, inter alia:

X x x. This Court has time and again ruled that public officials are not immune from damages in their personal capacities arising from acts done in bad faith. Otherwise stated, a public official may be liable for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. (See Vidal vs. RTC, Negros Oriental, 227 SCRA 271); Wylie vs. Rarang, 209 SCRA 357; Orocio vs. COA, 213 SCRA 109). In the instant case, the public officials concerned deliberately violated the law and persisted in their violations, going so far as attempting to deceive the courts by their pretended change of purpose and usage for the center, and making a mockery of the judicial system." Indisputably, said public officials acted beyond the scope of their authority and jurisdiction and with evident bad faith. However, as noted by the trial court, the petitioners mayor and members of the Sangguniang Panlungsod of Angeles City were sued only in their official capacities, hence, they could not be held personally liable without first giving them their day in court. Prevailing jurisprudence Roma vs. CA, 148 SCRA 496; San Luis cs. CA, 174 SCRA 258) holding that public officials are personally liable for damages arising from illegal acts done in bad faith are premised on said officials having been sued both in their official and personal capacities. After due consideration of the circumstances, we believe that the fairest and most equitable solution is to have the City of Angeles, donee of the subject open space and, ostensibly, the main beneficiary of the construction and operation of the proposed drug rehabilitation center,

undertake the demolition and removal of said center, and if feasible, recover the cost thereof from the city officials concerned. (The City of Angeles vs. CA, et. al., G. R. No. 97882, Aug. 28, 1996). RELIEF WHEREFORE, premises considered, it is respectfully prayed that the respondents, jointly and severally, be found guilty and liable for the ILLEGAL DISMISSAL of the complainant, with the concomitant imposition of civil awards, penalties and damages against the said respondents, more specifically: BACKWAGES computed according to existing jurisprudence; SEPARATION PAY as provided by existing jurisprudence, in lieu of restoration of the complainant to his former position, considering the strained relations between the parties at present by reason of this pending case; MORAL DAMAGES in the amount of P500,000.00; EXEMPLARY DAMAGES in the amount of P500,000.00; and ATTORNEYS FEES equivalent to 10% of recoverable damages, and COSTS OF SUIT and LITIGATION EXPENSES. Further, it is respectfully prayed that, pendent lite, the unquestioned/admitted receivable of the complainant from the respondent company, in the amount of P19, 846.96, be released to him soonest for humanitarian reasons, considering the financial difficulties that he and his family are now severely facing by reason of his abrupt termination from the service. Finally, the complainant respectfully prays for such and other reliefs as may be deemed just and equitable in the premises. Las Pinas City, April 30, 2012.

LASERNA CUEVA-MERCADER LAW OFFICES

Counsel for Complainant Unit 15, Star Arcade, C.V. Star Ave. Philamlife Village, Las Pinas City 1743 Tel/Fax 8462539, 8725443

MANUEL J. LASERNA JR. Roll No. 33640, 4/27/85 IBP Lifetime Member No. 1907 IBP Leyte Chapter

MCLE Exemption No. IV-1326, 2/3/11 PTR No. 10288207, 1/18/12, Las Pinas

VERIFICATION I, x x x., of legal age, married, Filipino, and with postal address at x x x , under oath, depose: that I am the complainant in the foregoing Reply Position Paper; that I caused the preparation thereof; that I have read its contents; and that the same are true and correct of my own direct, personal knowledge. Quezon City, April 30, 2012.

X x x. Affiant SUBSCRIBED and sworn to before me in Quezon City this 30th day of April 2012, affiant showing his Drivers License No. x x x expiring on x x x .

Administering Labor Arbiter CC: Xxx LAW OFFICES (Atty. X x x) Counsel for Respondents --------------(Personal Delivery During the Hearing Set On x x x at x x x) Client File

LABOR CASE: REDUNDANCY & ILLEGAL DISMISSAL

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 156658 March 10, 2004 BONIFACIO ASUFRIN, JR., petitioner, vs. SAN MIGUEL CORPORATION and the COURT OF APPEALS, respondents. DECISION YNARES-SANTIAGO, J.: Coca Cola Plant, then a department of respondent San Miguel Beer Corporation (SMC), hired petitioner as a utility/miscellaneous worker in February 1972. On November 1, 1973, he became a regular employee paid on daily basis as a Forklift Operator. On November 16, 1981, he became a monthly paid employee promoted as Stock Clerk. Sometime in 1984, the sales office and operations at the Sum-ag, Bacolod City Sales Office were reorganized. Several positions were abolished including petitioners position as Stock Clerk. After reviewing petitioners qualifications, he was designated warehouse checker at the Sum-ag Sales Office. On April 1, 1996, respondent SMC implemented a new marketing system known as the "pre-selling scheme" at the Sum-ag Beer Sales Office. As a consequence, all positions of route sales and warehouse personnel were declared redundant. Respondent notified the DOLE Director of Region VI that 22 personnel of the Sales Department of the Negros Operations Center1 would be retired effective March 31, 1995. Respondent SMC thereafter wrote a letter2 to petitioner informing him that, owing to the implementation of the "pre-selling operations" scheme, all positions of route and warehouse personnel will be declared redundant and the Sum-ag Sales Office will be closed effective April 30, 1996. Thus, from April 1, 1996 to May 15, 1996, petitioner reported to respondents Personnel Department at the Sta. Fe Brewery, pursuant to a previous directive. Thereafter, the employees of Sum-ag sales force were informed that they can avail of respondents early retirement package pursuant to the retrenchment program, while those who will not avail of early retirement would be redeployed or absorbed at the Brewery or other sales offices. Petitioner opted to

remain and manifested to Acting Personnel Manager Salvador Abadesco his willingness to be assigned to any job, considering that he had three children in college.3 Petitioner was surprised when he was informed by the Acting Personnel Manager that his name was included in the list of employees who availed of the early retirement package. Petitioners request that he be given an assignment in the company was ignored by the Acting Personnel Manager. Petitioner thus filed a complaint for illegal dismissal with the NLRC, docketed as RAB Case No. 06-0610233-96. On December 27, 1996, the Labor Arbiter dismissed the complaint for lack of merit. Petitioner appealed to the National Labor Relations Commission (NLRC) which set aside the Labor Arbiters decision and ordered respondent SMC to reinstate petitioner to his former or equivalent position with full backwages.4 Respondent filed a petition with the Court of Appeals which reversed the decision of the NLRC and reinstated the judgment of the Labor Arbiter dismissing the complaint for illegal dismissal. Petitioners motion for reconsideration5 was denied in a Resolution dated December 11, 2002.6 Hence, this petition for review assigning the following errors: 1. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS, WITH DUE RESPECT, COMMITTED GRAVE ABUSE OF DISCRETION IN HOLDING THAT PETITIONER WAS "NOT SINGLED-OUT FOR TERMINATION, AS MANY OTHERS WERE ALSO ADVERSELY AFFECTED." 2. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GROSS MISAPPREHENSION OF FACT WHEN IT AFFIRMED THE FINDING OF THE LABOR ARBITER THAT THE POSITION OF PETITIONER BECAME REDUNDANT AT THE SUM-AG SALES OFFICES. 3. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT THE DISMISSAL OF PETITIONER WAS VALID. 4. THE HONORABLE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN DISMISSING THE ENTIRE RELIEFS PRAYED FOR BY THE PETITIONER. The primordial issue to be resolved is whether or not the dismissal of petitioner is based on a just and authorized cause. Factual findings of administrative bodies, being considered experts in their fields, are binding on this Court. However, this is a general rule which holds true only when established exceptions do not obtain. One of these exceptive circumstances is when the findings of the Labor Arbiter and the NLRC are conflicting. Considering that the ruling of the Labor Arbiter was reversed by the NLRC whose judgment was in turn overturned by the appellate court, it behooves us in the exercise of our equity jurisdiction to determine which findings are more conformable to the evidentiary facts.7

In the case at bar, petitioner was dismissed on the ground of redundancy, one of the authorized causes for dismissal.8 In Dole Philippines, Inc. v. NLRC,9 citing the leading case of Wiltshire File Co., Inc. v. NLRC,10 we explained the nature of redundancy as an authorized cause for dismissal thus: . . . redundancy in an employers personnel force necessarily or even ordinarily refers to duplication of work. That no other person was holding the same position that private respondent held prior to the termination of his services, does not show that his position had not become redundant. Indeed, in any well-organized business enterprise, it would be surprising to find duplication of work and two (2) or more people doing the work of one person. We believe that redundancy, for purposes of the Labor Code, exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Succinctly put, a position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as overhiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. The determination that employees services are no longer necessary or sustainable and, therefore, properly terminable is an exercise of business judgment of the employer. The wisdom or soundness of this judgment is not subject to discretionary review of the Labor Arbiter and the NLRC, provided there is no violation of law and no showing that it was prompted by an arbitrary or malicious act.11 In other words, it is not enough for a company to merely declare that it has become overmanned. It must produce adequate proof that such is the actual situation to justify the dismissal of the affected employees for redundancy.12 Persuasive as the explanation proffered by respondent may be to justify the dismissal of petitioner, a number of disturbing circumstances, however, leave us unconvinced. First, of the 23 SMC employees assigned at the Sum-ag Sales Office/Warehouse, 9 accepted the offer of SMC to avail of the early retirement whose separation benefits was computed at 250% of their regular pay. The rest, including petitioner, did not accept the offer. Out of the remaining fourteen 14, only petitioner clearly manifested, through several letters,13 his desire to be redeployed to the Sta. Fe Brewery or any sales office and for any position not necessarily limited to that of a warehouse checker. In short, he was even willing to accept a demotion just to continue his employment. Meanwhile, other employees who did not even write a letter to SMC were redeployed to the Sta. Fe Brewery or absorbed by other offices/outlets outside Bacolod City.14 Second, petitioner was in the payroll of the Sta. Fe Brewery and assigned to the Materials Section, Logistics Department, although he was actually posted at the Sum-ag Warehouse.15 Thus, even assuming that his position in the Sum-ag Warehouse became redundant, he should have been returned to the Sta. Fe Brewery where he was actually assigned and where there were vacant positions to accommodate him.

Third, it appears that despite respondents allegation that it ceased and closed down its warehousing operations at the Sum-ag Sales Office, actually it is still used for warehousing activities and as a transit point where buyers and dealers get their stocks.16 Indeed, the Sum-ag Office is strategically situated on the southern part of Bacolod City making it convenient for dealers from the southern towns of Negros Occidental to get their stocks and deposit their empty bottles in the said warehouse, thereby decongesting the business activities at the Sta. Fe Brewery. Fourth, in selecting employees to be dismissed, a fair and reasonable criteria must be used, such as but not limited to (a) less preferred status, e.g. temporary employee; (b) efficiency; and (c) seniority.17 In the case at bar, no criterion whatsoever was adopted by respondent in dismissing petitioner. Furthermore, as correctly observed by the NLRC, respondent "has not shown how the cessation of operations of the Sum-ag Sales Office contributed to the ways and means of improving effectiveness of the organization with the end in view of efficiency and cutting distribution overhead and other related costs. Respondent, thus, clearly resorted to sweeping generalization[s] in dismissing complainant."18 Indeed, petitioners predicament may have something to do with an incident where he incurred the ire of an immediate superior in the Sales Logistics Unit for exposing certain irregularities committed by the latter.19 In the earlier case of San Miguel Corporation v. NLRC,20 respondents reasons for terminating the services of its employees in the very same Sum-ag Sales Office was rejected, to wit: Even if private respondents were given the option to retire, be retrenched or dismissed, they were made to understand that they had no choice but to leave the company. More bluntly stated, they were forced to swallow the bitter pill of dismissal but afforded a chance to sweeten their separation from employment. They either had to voluntarily retire, be retrenched with benefits or be dismissed without receiving any benefit at all. What was the true nature of petitioners offer to private respondents? It was in reality a Hobsons choice.21 All that the private respondents were offered was a choice on the means or method of terminating their services but never as to the status of their employment. In short, they were never asked if they wanted to work for petitioner. In the case at bar, petitioner is similarly situated. It bears stressing that whether it be by redundancy or retrenchment or any of the other authorized causes, no employee may be dismissed without observance of the fundamentals of good faith. It is not difficult for employers to abolish positions in the guise of a cost-cutting measure and we should not be easily swayed by such schemes which all too often reduce to near nothing what is left of the rubble of rights of our exploited workers.22 Given the nature of petitioners job as a Warehouse Checker, it is inconceivable that respondent could not accommodate his services considering that the warehousing operations at Sum-ag Sales Office has not shut down.

All told, to sustain the position taken by the appellate court would be to dilute the workingmans most important right: his constitutional right to security of tenure. While respondent may have offered a generous compensation package to those whose services were terminated upon the implementation of the "pre-selling scheme," we find such an offer, in the face of the prevailing facts, anathema to the underlying principles which give life to our labor statutes because it would be tantamount to likening an employer-employee relationship to a salesman and a purchaser of a commodity. It is an archaic abomination. To quote what has been aptly stated by former Governor General Leonard Wood in his inaugural message before the 6th Philippine Legislature on October 27, 1922 "labor is neither a chattel nor a commodity, but human and must be dealt with from the standpoint of human interest."23 As has been said: "We do not treat our workers as merchandise and their right to security of tenure cannot be valued in precise peso-and-centavo terms. It is a right which cannot be allowed to be devalued by the purchasing power of employers who are only too willing to bankroll the separation pay of their illegally dismissed employees to get rid of them."24 This right will never be respected by the employer if we merely honor it with a price tag. The policy of "dismiss now and pay later" favors moneyed employers and is a mockery of the right of employees to social justice.25 WHEREFORE, in view of all the foregoing, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 53521 dated April 10, 2002, and the Resolution dated December 11, 2002 denying petitioners Motion for Reconsideration, are SET ASIDE. The decision of the National Labor Relations Division dated February 20, 1998 is REINSTATED. Accordingly, petitioners dismissal is declared illegal, and respondent is ordered to reinstate him to his former or equivalent position, with full backwages computed from April 1, 1996 up to his actual reinstatement. Respondent is likewise ordered to pay petitioner the sum equivalent to ten percent (10%) of his total monetary award as attorneys fees. SO ORDERED. Davide, Jr., C.J., (Chairman), Carpio, and Azcuna, JJ., concur. Panganiban, J., on official leave.

Footnotes 1 Record., p. 98. 2 Id., p. 104. 3 Rollo, p. 41. 4 Id., pp. 35-44.

5 Id., p. 31. 6 Id., p. 44. 7 Progressive Development Corporation v. NLRC, 344 SCRA 512 [2000]; PAL v. NLRC, 328 SCRA 273 [2000]; Aklan Electric Cooperative, Inc. v. NLRC, 323 SCRA 258 [2000]; Samson v. NLRC, 330 SCRA 460 [2000]. 8 Article 283, Labor Code. 9 417 Phil. 428 [2001]. 10 G.R. No. 82249, 7 February 1991, 193 SCRA 665. 11 Wiltshire File Co., Inc. v. NLRCA, supra. 12 Golden Thread Knitting Industries, Inc. v. NLRC, 364 Phil. 216 [1999], citing Salonga v. NLRC, G.R. No. 118120, 23 February 1996, 254 SCRA 111; Guerrero v. NLRC, G.R. No. 119842, 30 August 1996, 261 SCRA 301; San Miguel Jeepney Service v. NLRC, G.R. No. 92772, 28 November 1996, 265 SCRA 35. 13 Record, pp. 324, 326, 501-502. 14 Id., p. 496. 15 Id., p. 130. 16 Id., p. 129. 17 Capital Wireless, Inc. v. Confesor, 332 Phil. 78 [1996], citing Asiaworld Publishing House, Inc. v. Ople, G.R. No. 56398, 23 July 1987, 152 SCRA 219. 18 NLRC Decision, p. 7; Records, p. 41. 19 Rollo, pp. 39-41. 20 G.R. No. 107693, 23 July 1998, 293 SCRA 13 [1998]. 21 Hobsons choice means no choice at all; a choice between accepting what is offered or having nothing at all. It refers to the practice of Tobias Hobson, an English stable-owner in the 17th century, of offering only the horse nearest the stable door. 22 Palmeria v. NLRC, G.R. Nos. 113290-91, 3 August 1995, 247 SCRA 57.

23 Cited in Dissenting opinion, Puno J., Serrano v. NLRC, 323 SCRA 445, 519 [2000]. 24 Palmeria v. NLRC, supra. 25 See note 23, p. 523.

Termination of Employment in the Philippines

Termination of Employment in the Philippines
Terminating an employee in the Philippines is taken VERY seriously and can be a complex process, especially after the employee is regularized. The Philippine Constitution says, no involuntary servitude in any form shall exist except as punishment for a crime whereof the party shall have been duly convicted. In view of the prohibition on involuntary servitude, an employee is given the right to resign under art. 285 of the Labor Code. The provision recognizes two kinds of resignation - without cause and with cause. If the resignation is without cause, the employee is required to give a 30-day advance written notice to the employer, to enable the employer to look for a replacement to prevent work disruption. If the employee fails to give a written notice, he or she runs the risk of incurring liability for damages. The same provision also indicates the just causes for resignation (with cause)

Serious insult to the honor and person of the employee Inhuman and unbearable treatment; Crime committed against the person of the employee or any of the immediate members of the employee's family; and Other analogous causes.

In this second type of resignation, the employee need not serve a written notice. Forced resignation is not allowed and is considered "constructive" dismissal - a dismissal in disguise. Employee retirement is either voluntary or compulsory under art. 287 of the Labor Code.

Dismissal of an Employee in the Philippines

An equality of rights exists between employer and employee. While the employer cannot force the employee to work against his or her will, neither can the employee compel the employer to continue giving him or her work if there is a lawful reason not to do so. Thus, the employer may terminate the services of an employee for just or authorized causes after following the procedure laid down by law, but the employer has the burden of proving the lawfulness of the employee's dismissal in the proper forum. Just causes are blameworthy acts on the part of the employee such as serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud or willful breach of trust, commission of a crime and other analogous causes (art. 282, Labor Code).

Authorized causes are of two types - business reasons and disease. The business reasons are installation of labor-saving devices, redundancy, retrenchment and closure or cessation of operation (art. 283, Labor Code). Before the employer can terminate employment on the ground of disease, he must obtain from a competent public health authority a certification that the employee's disease is of such a nature and at such a stage that it can no longer be cured within a period of six months even with medical attention (art. 284, Labor Code; Implementing Rules of Book VI, Labor Code). Those hired on a temporary basis, that is, for a "term" or "fixed period" are not regular employees, but are "contractual employees." Consequently, there is no illegal dismissal when their services are terminated by reason of the expiration of their contracts. Lack of notice of termination is of no consequence, because a contract for employment for a definite period terminates by its own term at the end of such period.

An Illegal Strike can be cause for Termination of Employment

Employment is not deemed terminated when there is a bona fide suspension of the operations of a business or undertaking for a period not exceeding six months, or when the employee fulfills a military or civic duty (art. 286, Labor Code). Under the Corporation Code (sec. 80), the surviving or consolidated entity in a merger or consolidation automatically assumes all rights and obligations, assets and liabilities of the combining entities. This includes obligations or liabilities under valid agreements, like labour contracts. The surviving or consolidated entity must, therefore, recognize the security of tenure and length of service of the workers of the merging or consolidating corporations. By the fact of merger or consolidation, a succession of employment rights and obligations occurs.

Notice and prior procedural safeguards

As stated above, dismissals based on just causes contemplate acts or omissions attributable to the employee while dismissals based on authorized causes involve grounds - business or health allowing the employer to terminate. A termination for an authorized cause requires payment of separation pay. When the termination of employment is declared illegal, reinstatement and full backwages are mandated under art. 279 of the Labor Code. If reinstatement is no longer possible where the dismissal was unjust, separation pay may be granted. Procedurally, (1) if the dismissal is based on a just cause under art. 282 of the Labor Code, the employer must give the employee two written notices and a hearing or opportunity to be heard before terminating the employment, that is, a notice specifying the grounds for which dismissal is sought and, after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under arts. 283 and 284 of the Labor Code, the employer must give the employee and the Department of Labour and Employment written notices 30 days prior to the effectivity of the separation.

Severance pay with Termination

As already noted, separation pay is required to be paid to the employee when there is termination of employment by the employer for an authorized cause, the amount of which depends on the cause. If the termination is due to the installation of labour-saving devices or redundancy, the separation pay is one month's pay for every year of service or one month pay, whichever is higher (art. 283, Labor Code). If the termination is due to retrenchment to prevent losses, or closure or cessation of operation of the establishment not due to serious business losses, or due to disease, the separation pay is one-half month's pay for every year of service or one month pay, whichever is higher (arts. 283 and 284, Labor Code). However, there is no requirement for separation pay if the closure is due to serious business losses.

Avenues for redress

From the foregoing, four possible situations may be derived: (1) the dismissal is for a just cause under art. 282 of the Labor Code, or for an authorized cause - business reason under art. 283 or health reason under art. 284 - and due process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) and there no process; (4) for a not observed. In the first situation, the dismissal is undoubtedly valid and the employer will not incur any liability, save for separation pay when the dismissal is for an authorized cause. In the second and third situations, where the dismissals are illegal, art. 279 of the Labor Code mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement. In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be held liable for nominal damages for non-compliance with the procedural requirements of due process. If the dismissal is for an authorized cause, the employee is also entitled to separation pay. Compulsory arbitration of illegal dismissal cases is conducted by the Labour Arbiters of the National Labour Relations Commission and their decisions are appealable to the Commission (arts. 217 and 218, Labor Code). In view of the stated preference for voluntary modes of settling labour disputes under art. 13 (3) of the Constitution and art. 211of the Labor Code, voluntary arbitration of illegal dismissals is recognized on the basis of mutual agreement between the parties (art. 262, Labor Code). Compulsory arbitration is both the process of settlement of labour disputes by a government agency which has the authority to investigate and issue an award binding on all the parties, as well as a mode of arbitration where the parties are compelled to accept the resolution of their dispute through arbitration by a third party. While a voluntary arbitrator is not part of the labour department, he or she renders arbitration services provided for under labour laws. Generally, the voluntary arbitrator is expected to decide

only questions that are expressly delineated by the submission agreement. However, since arbitration is the final resort for the adjudication of disputes, the arbitrator can assume that he or she has the power to make a final settlement. Thus, assuming that the submission agreement empowers the arbitrator to decide whether an employee was discharged for just cause, the arbitrator can reasonably assume that his or her powers extend beyond giving a mere yes-or-no answer and include the authority to reinstate with or without back pay.

Difference between a Just and Authorized Cause of Termination

Just cause refers to a wrong doing committed by the employer or employee on the basis of which the aggrieved party may terminate the employer-employee relationship. Authorized cause refers to a cause brought about by changing economic or business conditions of the employer.

Causes for Termination by the Employer

1. 2. 3. 4. 5. Serious misconduct; Willful disobedience of employer's lawful orders connected with work; Gross and habitual neglect of duty; Fraud or breach of trust; Commission of a crime or offense against the employer, employer's family or representative; and 6. Other analogous causes.

Just Causes for Termination by the Employee

1. Serious insult by the employer or his or her representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his or her representative; 3. Commission of a crime by the employer or his or her representative against the person of the employee or any of the immediate members of his or her family; and 4. Other analogous causes.

Authorized Causes for Termination

1. 2. 3. 4. 5. Installation of labor-saving devices; Redundancy; Retrenchment to prevent losses; Closure or cessation of business; and Disease not curable within six months as certified by competent public authority, and continued employment of the employee is prejudicial to his or her health or to the health of his or her coemployees.

Due Process in the Context of Termination of Employment

Due process means the right of an employee to be notified of the reason for his or her dismissal and, in case of just causes, to be provided the opportunity to defend himself or herself.

Components of Due Process in Termination Cases

In a termination for a just cause, due process involves the two-notice rule:
1. A notice of intent to dismiss specifying the ground for termination, and giving to said employee reasonable opportunity within which to explain his or her side; 2. A hearing or conference where the employee is given opportunity to respond to the charge, present evidence or rebut the evidence presented against him or her; 3. A notice of dismissal indicating that upon due consideration of all the circumstances, grounds have been established to justify the termination.

In a termination for an authorized cause, due process means a written notice of dismissal to the employee specifying the grounds given, at least 30 days before the date of termination. A copy of the notice shall be furnished the Regional Office of the Department of Labor and Employment of the Philippines (DOLE).

An Employee may Question the Legality of his or her Dismissal

The legality of the dismissal may be questioned before the Labor Arbiter of the National Labor Relations Commission (NLRC) of the Philippines, through a complaint for illegal dismissal. In establishments with a collective bargaining agreement (CBA), the dismissal may be questioned through the grievance machinery established under the CBA. If the issue is not resolved at this level, it will be submitted to voluntary arbitration.

Proving the Dismissal is Legal

In a case of illegal dismissal, the employer as the burden of proving that the dismissal is legal.

Grounds for an Employee to Question his or her Dismissal

An employee may question his or her dismissal based on substantive or procedural grounds. The Substantive aspect pertains to the absence of a just or authorized cause supporting the dismissal. The Procedural aspect refers to the notice of termination or the opportunity to present an explanation.

What are the rights afforded to an unjustly dismissed employee?

An employee who is dismissed without just cause is entitled to any or all of the following:
1. Reinstatement without loss of seniority rights, or separation pay if reinstatement is not possible; 2. Full backwages, inclusive of allowances and other benefits or their monetary equivalent from the time compensation was withheld from him or her up to the time of reinstatement;

3. Damages and attorney's fees if the dismissal was done in bad faith.

Reinstatement
Reinstatement means restoration of the employee to the position from which he or she has been unjustly removed. Reinstatement without loss of seniority rights means that the employee, upon reinstatement, should be treated in matters involving seniority and continuity of employment as though he or she had not been dismissed from work. When a Labor Arbiter rules for an illegal dismissal, reinstatement is immediately executory even pending appeal. Forms in which reinstatement be effected Reinstatement may be actual or payroll in nature, at the option of the employer.

Full Backwages
Full backwages refer to all compensations, including allowances and other benefits with monetary equivalent, that should have been earned by the employee but was not collected by him or her because of unjust dismissal. It includes all the amounts he or she could have earned starting from the date of dismissal up to the time of reinstatement. In cases of illegal dismissal, a dismissed employee who has found another job may still be entitled to collect full backwages from his or her former employer. Full backwages is a form of penalty imposed by law on an employer who illegally dismisses his or her employee. The fact that the dismissed employee may already be employed and earning elsewhere does not extinguish the penalty.

The former position of the employee no longer exists at the time of reinstatement
In that case, the employee shall be given a substantially equivalent position in the same establishment without loss of seniority rights and to backwages from the time compensation was withheld up to the time of reinstatement.

Employee Benefits when the Establishment no longer exists

When an establishment no longer exisits at the time an order for reinstatement is made the employee can claim benefits. The employee is entitled to a separation pay equivalent to at least one-month pay or at least one month pay for every year of service whichever is higher, a fraction of at least six months shall be considered as one whole year. The period of service is deemed to have lasted up to the time of closure of the establishment. He or she may also claim backwages to cover the period between dismissal from work and the closure of the establishment.

Separation Pay
In authorized cause terminations, separation pay is the amount given to an employee terminated due to retrenchment, closure or cessation of business or incurable disease. The employee is entitled to receive the equivalent of one month pay or one-half month pay, whichever is higher, for every year service. In just cause terminations, separation pay is also the amount given to employees who have been dismissed without just cause and could no longer be reinstated.

Reinstatement is not possible so that separation pay shall be given to an illegally dismissed employee
1. When company operations have ceased; 2. When the employee's position or an equivalent thereof is no longer available; 3. When the illegal dismissal case has engendered strained relations between the parties, in cases of just causes and usually when the position involved requires the trust and confidence of the employer; 4. When a substantial amount of years have lapsed from the filing of the case to its finality.

Exception for an employee dismissed for just cause be entitled to separation pay
As a rule, no. But in instances where the just cause for dismissal is other than serious misconduct or moral turpitude, the employee may be awarded Financial Assistance in the amount of one month's pay as a form of compassionate justice.

Proof of Financial Losses is Necessary to Justify Retrenchment

Yes. Proof of actual or imminent financial losses that are substantive in character must be proven to justify retrenchment.

Proof of Financial losses is NOT necessary to justify redundancy

In redundancy, the existing manpower of the establishment is in excess of what is necessary to run its operation in an economical and efficient manner.

Other Conditions before an Employee may be Dismissed on the Ground of Redundancy It must be shown that:

Good faith in abolishing redundant position; There is fair and reasonable criteria in selecting the employees to be dismissed, such as but not limited to less preferred status (e.g. temporary employee), efficiency and seniority. A one-month prior notice is given to the employee as prescribed by law.

Failure to Comply with the Due Process Requirements

Failure to comply with the due process requirements will NOT invalidate a dismissal with an otherwise established just or authorized cause. The employee, however, will be entitled to backwages from the time of termination till finality of the decision confirming the presence of a just or authorized cause.

Difference between Transfer and Promotion

Promotion is the advancement of an employee from one position to another with an increase in duties and responsibilities, and is usually accompanied by an increase in salary. Promotion is a privilege and as such may be declined by the employee. Transfer is a lateral movement that does not amount to a promotion. It constitutes a valid exercise of management prerogative, unless it is done to defeat an employee's right to selforganization, to get rid of undesirable workers, or to penalize an employee of his or her union activities. If done in good faith, management's decision to transfer an employee may not be questioned. An employee's refusal to transfer may constitute willful disobedience, a just cause for his or her dismissal.

An Employer Transferring an Employee to another place of work without prior notice

Generally, an employer can not transfer an employee to another place of work without prior notice. But if the urgency of the service requires a transfer, and such transfer is exercised in good faith for the advancement of the employer's interest and will not adversely affect the rights of the employee, the transfer may be undertaken even without the employee's consent.

Non-union member availing of the grievance machinery in case of termination

If a non-union member belonging to an appropriate bargaining unit of the recognized bargaining agent and pays agency fees to the union and accepts the benefits under the collective agreement, said non-union members may avail of the grievance machinery. On the other hand, if the nonunion member is not part of the appropriate bargaining unit of the recognized bargaining agent and is expressly excluded in the collective agreements, said employee cannot avail of the grievance machinery.

Reasonable period for an Employee subjected to Dismissal to answer charges against him or her by the Employer
A reasonable period should be provided wherein the employee can answer all the charges against him or her, gather evidence and confront the witnesses against him or her. It should include the opportunity to secure the assistance of a representative who could be a union officer. Reasonableness of the period should be based, among others, on the gravity of the charges against the employee.

An employee charged with an offense may be placed under preventive suspension while he or she is preparing to answer charges filed against him or her by the employer
Only on grounds that his or her continued presence inside the company premises poses a serious imminent threat to the life or property of the employer or his or her co-workers, and only for a period of 30 days may be placed under preventive suspension. After 30 days, the employee should be reinstated to his or her former position or in a substantially equivalent position. The employer, however, may extend the period of suspension provided that the employee is paid his or her wages and other benefits during the extension. If the employer decides to dismiss the employee after completion of the investigation, the employee is not bound to reimburse the amount paid to him or her during the extended period. The employer is required to immediately notify the employee in writing of a decision to dismiss him or her stating clearly the reasons for the dismissal. Preventive suspension is not a disciplinary measure, and should be distinguished from suspension imposed as a penalty.

Validity of the Employer's Decision on Termination

A dismissed employee may still question the validity or legality of his or her dismissal by filing a complaint for illegal or unjust dismissal before the Arbitration Branch of NLRC. In such a case, the burden of proving that the dismissal is for a valid or authorized cause rests on the employer.

During the pendency of the termination case, an employee may be be retained in his or her work
An employee may be retained in his or her work even during the pendency of a termination case under the following circumstances:
1. Upon serving the preventive suspension period of 30 days; and 2. Upon management prerogative allowing the employee to be retained at work and his or her continued employment poses no serious nor imminent threat to the life or property of the employer or his or her co-employees.

The Effects of Termination may be Suspended Pending Resolution of the Case

The Secretary of Labor of the Philippines may provisionally order a reinstatement in the event of prima facie finding that the dismissal may cause a serious labor dispute as in a strike or lock-out, or is in implementation of mass lay-off.

Services of an Employee Terminated due to Disease

The employer may terminate employment on ground of disease only upon the issuance of a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six months even with proper medical treatment.

Suspending Operations of a Business

If the period of suspension of operations do not exceed six months, the workers shall be reinstated to their respective positions without loss of seniority rights if they indicated their desire to resume work not later than one month from the resumption of operations of business. If the shutdown is for a period of not more than six months such as may occur in equipment check or repair, stock inventory or lack of raw materials, the employee is only temporarily laid off and, therefore, employer-employee relationship is not severed. If it will last for a period of more than six months and is of an indefinite character, it may be considered as equivalent to closure of the establishment leading to termination of employment. In such a case, the requirements of the law and rules on employee dismissals must be observed.

How to File An Illegal Dismissal Case in the Philippines

Posted by Admin on October 11th, 2012 12:33 PM | Business and Labor Law, FOCUS AREAS

An employee who feels that his rights as an employee was violated because he was wrongfully dismissed can lodge a complaint for illegal dismissal. What to do? But prior to that, make an assessment of yourself and of your situation. Part of your assessment is the availability of the employment documents which will form part of the evidence you need to present in support of your case. Otherwise, all your efforts will be futile. Assuming that all the documentary proofs are available or otherwise accessible, you are ready to make your written complaint alleging all the facts and circumstances attending the commission of unjust dismissal. Any complaint to contest the validity of the employees dismissal must be filed with the tribunal which has jurisdiction over the case. Where to File the Dismissal Case?

The Labor Code of the Philippines provides that the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide termination disputes. The Labor Arbiter has thirty (30) calendar days within which to decide the case after the parties submitted it for decision. In case the termination dispute arose from violations of the Collective Bargaining Agreement between the employer and the employees recognized labor union, the Voluntary Arbitrator must resolve the controversy before it goes to the Labor Arbiter. Are Lawyers Needed? Your part, as the complainant, does not end by just filing the complaint with the labor tribunal. Other legal forms and pleadings may be required by the tribunal for the case, for which you need the assistance of an individual well-versed in law, specifically in Philippine labor laws to give advice on how one can effectively and persuasively defend the claim. Thus, although one does need the representation of a lawyer to defend his cause in an illegal dismissal or termination case, it is still advantageous to get advice or to retain a good and effective lawyer or law firm to back you up and/or your cause. Remember that your contender in this case is one of the most influential people in a society that we have and they can afford the services of a lawyer to take care of their defense. In order for you to feel that you and your employer are on the same plane, hire the services of a lawyer. You may not want to get lambasted by the prowess of your employers lawyer. Therefore, look for your own lawyer and be at par with your employer.

Reliefs of Illegally Dismissed Employees

Employee Discipline and Termination 2010-02-16

In general, an illegally dismissed employee is entitled to one or more of the following reliefs:
1. 2. 3. 4. 5. Reinstatement; Payment of Backwages; Separation Pay; Payment of Damages; and Award of Attorneys Fees.

Right to Reinstatement.

An employee who is unjustly dismissed from work is entitled to reinstatement without loss of seniority rights and other privileges. (Article 279, Labor Code.)

Reinstatement Meaning.

Reinstatement is a relief granted to an illegally dismissed employee which restores him to the position from which he was removed, that is, to his status quo ante dismissal. Reinstatement should be without loss of seniority rights and other privileges.
Remedy when Reinstatement is no Longer Possible.

As a necessary consequence of the finding of illegal dismissal, the illegally dismissed employee becomes entitled to reinstatement as a matter or right. The employer must reinstate him to the position he was holding prior to his dismissal. Ideally, this should be the case. However, in some instances, although the dismissal of the employee is determined to be illegal, reinstatement may no longer possible for a number of reasons. In such case, separation pay in lieu of reinstatement may be awarded. Following are some of the instances where payment of separation pay is allowed in lieu of reinstatement:
1. When the relationship between the employer and the employee had become strained as to preclude a harmonious working relationship; 2. When reinstatement becomes a legal impossibility; 3. When the employee no longer wish to be reinstated; 4. When prudence and fair play so dictates; and 5. When reinstatement is not practicable due to loss of confidence. Doctrine of Strained Relations Concept.

Under the doctrine of strained relations, the payment of separation pay has been considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On the one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other, the payment releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust. (Coca-Cola Bottlers Phils. vs. De Leon, G.R. No. 156893, June 21, 2005.) Nevertheless, the principle of strained relations should not be used so indiscriminately as to bar the reinstatement of illegally dismissed workers, especially when they themselves have not indicated any aversion to returning to work, as in this case. It is only normal to expect a certain degree of antipathy and hostility to arise from a litigation between parties, but not in every instance does such an atmosphere of antagonism exist as to adversely affect the efficiency and productivity of the employee concerned. (Ibid.) The doctrine of strained relations may be invoked only against employees whose positions demand trust and confidence, or whose differences with their employer are of such nature or degree as to preclude reinstatement.

In Maranaw Hotels vs. NLRC, G.R. No. 123880, February 23, 1999, the Court refused to apply the doctrine of strained relations on the ground that the position of a room boy is not such a sensitive position that demands complete trust and confidence.
Right to Backwages.

An employee who is unjustly dismissed from work shall be entitled to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
Backwages Meaning.

Backwages is the restitution of earnings unduly withheld from the employee because of illegal termination. It partakes the nature of a penalty the employer has to pay for illegally dismissing an employee.
Computation of Backwages.

Inclusive period. Full backwages is to be computed from the time compensation was withheld from the employee up to the time of his actual reinstatement. Base figure. The based figure to be used in the computation shall include not just the basic salary, but also regular allowances and other benefits or their monetary equivalent, i.e., transportation, emergency living allowance, 13th-month pay, etc. Wage rate. The computation of backwages may be based either on the current wage rate or the wage rate at the time of the dismissal. If current wage rate is awarded, it must be expressly stated in the decision. If not expressly stated (award is unqualified), the wage rate at the time of the dismissal should be used. (Paramount Vinyl vs. NLRC, G.R. No. 81200, October 17, 1990.)
Methods of Computing Backwages.

Deduction of earnings elsewhere rule. Under this rule, the award of backwages to an employee could be reduced by subtracting the wages actually earned by him from employment during the period of his separation, or the wages which he could have earned had he been diligent enough to find a job. The employer would be allowed to adduce evidence on these matters. This rule was abandoned in Mercury drug case primarily because the deduction of evidence was found to only delay execution process. Mercury Drug rule. To remedy the delay brought about by the first rule, and to speed up execution process, the Supreme Court in Mercury Drug case, 1974, adopted the policy of granting to employee backwages for a maximum period of three years without qualification and deduction.

Method used under RA 6715. With the passage of RA 6715, both the rules above were abandoned. The rule now is that the employees are entitled to full backwages without deduction or qualification.
Illegal Dismissal without Backwages.

As a general rule, an employee who is dismissed due to the unlawful act of the employer or to the latters bad faith is entitled to backwages as a matter of right, backwages being a direct and necessary consequence of finding of illegal dismissal. However, there are instances where despite illegal dismissal, the illegally dismissed employee is not entitled to backwages. This happens in cases where good faith is evident on the part of the employer in dismissing the employee, i.e., there is just cause to dismiss employee, but the dismissal is found by the court to be too harsh a penalty.
Effect of Failure to Claim Backwages.

The award of backwages resulting from illegal dismissal of employee is a substantive right. Thus, it has been held that the employee does not forfeit his right to claim backwages even if he failed to claim for the same in his complaint.
Separation Pay.

As stated above, separation pay is the relief awarded to employee when reinstatement is no longer feasible or practicable, or when reinstatement is no longer desirable or will not serve the best interest of the parties.
Amount of Separation Pay: Formula.

The amount of separation pay in lieu of reinstatement is not fixed by the Labor Code. But the trend in recent cases is to compute the same using the formula one month pay, or one month pay per year of service. (This formula was used in the 2005 case P. J. Lhuillier vs. NLRC.) In other older cases, the court used one half month pay per year of service.
Cases 1. Separation pay and backwages are distinct and separate from each other. A Labor Arbiter cannot order that the separation pay be deducted from the backwages. (Solis vs. NLRC, G.R. No. 116175, October 28, 1996.) 2. The NLRC reverses the decision of the Labor Arbiter and ordered the employees reinstatement, but failed to award backwages. On appeal filed by the employer, the Court of Appeals (CA) awarded backwages although the employee did not appeal the decision. The Supreme Court ruled that the award made by the CA is proper. Backwages is a mere consequence of finding of illegal dismissal. (St. Michaels Institute vs. Santos, G.R. No. 145280, December 4, 2001.)

3. Backwages was not granted to the employee because the employer was in good faith when it dismissed the employee who received P7,000.00 from an applicant for illegal installation of power line. (Meralco vs. NLRC, G.R. No. 78763, July 12,1989.)

Termination Process (Just Causes)

Employee Discipline and Termination 2010-02-06 Procedural Due Process.

For termination of employment based on just causes, procedural due process requires that the employee be given the benefit of the so-called twin-notice and hearing, as follows:
1. First notice: Notice to Explain (NTE) or order to show cause. A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side. 2. Hearing or formal investigation. A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him. 3. Second notice: Notice of decision. A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. (See Art. 277[b] and Sec 2, Rule I, Book VI, IRR) Service of Notices.

In case of termination, the employee must be personally served with notices (notice to show cause and notice of termination). Ideally, this should be done by personally handing a copy of the notice to the employee concerned. However, if this is not possible, the notices may be served on the employees last known address either by ordinary or registered mail (from legal viewpoint, registered mail is preferred). The mere posting of the notice on the bulletin board is not sufficient compliance. (Shoppers Gain Supermart, 1996) If the employee refused to receive notice, the employer must serve the same by registered mail at his last known address. (See Nueva Ecija Electric Coop case, 2005)
Opportunity to Respond.

The very purpose of requiring the employer to observe proper termination process is to give the employee ample opportunity to respond to the charges against him or to defend himself. What the law require is ample opportunity. Ample opportunity means every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense including legal representation.

Requirements for First Notice (NTE).

The first notice informing the employee of the charges against him should set out clearly what he is being held liable for. It should neither be pro-forma nor vague. This is consistent with the requirement that the employee should be afforded ample opportunity to be heard and not mere opportunity. Moreover, the dismissal, if necessary, must be based on the same grounds cited in the NTE. If the dismissal is based on grounds other than those specified in the notice, he is deemed to have been deprived of due process. (Glaxo Wellcome vs. NEW-DFA, 2005.)
Effect of Refusal of Employee to Participate in Investigation.

By the refusal of employee to participate in the investigation, he is deemed to have waived his right to defend himself. (Leonardo vs. NLRC, 2000.)
Effects or Consequences of Termination. 1. If dismissal is for just cause and with prior notice and hearing, the dismissal is valid. 2. If the dismissal is for just cause but without prior notice and hearing, the dismissal is valid but the employer may be required to pay nominal damages to the dismissed employee. 3. If there is no just cause for dismissal, whether or not there is prior notice and hearing, the dismissal is illegal. The employee is entitled to reinstatement, backwages and damages. Cases 1. The employee refused to participate in the investigation being conducted by the personnel management. The Court ruled that by refusing to participate, he cannot claim that he was denied due process. (Leonardo vs. NLRC, 2000.) 2. The employment contract contains stipulation that the employment may be terminated by either party after one month notice or one month salary in lieu of notice. The stipulation was held to be illegal. The requirement of prior notice and opportunity to be heard cannot be substituted by mere payment of salary. (PNB vs. Cabansag, 2005.)

Gross and Habitual Neglect of Duty

Employee Discipline and Termination 2010-02-04 Gross Negligence Meaning.

Gross negligence is a just cause for termination of employment by employer under Article 282 of the Labor Code of the Philippines. Gross negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.

Negligence must be Habitual.

In order to constitute a just cause for the employees dismissal, the neglect of duties must not only be gross but also habitual. Habitual neglect implies repeated failure to perform ones duties for a period of time, depending upon the circumstances. A single isolated acts of negligence do not constitute a just cause for the dismissal of the employee. However, in a number of cases, the SC upheld the validity of dismissal on the ground of gross negligence even if the act complained of was not habitual. Thus, a bank employee was found grossly negligent when she delivered newly approved credit cards to a person she had not even seen before and she did not even ask for receipts, thereby enabling fictitious persons to use these cards, causing P740,000.00 loss to the bank. (See Citibank vs. Gatchalian, G.R. No. 111222, January 18, 1995.)
Habitual Absenteeism and Tardiness.

Habitual absenteeism and tardiness constitute gross and habitual neglect of duty. Repeated acts of absences without leave and frequent tardiness reflect indifferent attitude to and lack of motivation in his work. (Valiao vs. CA, G.R. No. 146621, July 30, 2004.) Dear PAO, Our agency deployed me in Makati to work as a security guard for a retail establishment. A problem occurred with the establishment I was working with. The owners thought that I was siding with some of the persons concerned. Now, I have a feeling that the officers of the establishment reported me to our agency, which is why, after a week, I was terminated from my post and my boss told me that they are no longer interested in my services. Can I file a case for illegal dismissal? Your legal advice will be highly appreciated.

Best regards, Manjo Dear Manjo, A contract of employment, like all other types of contract, may be terminated at the instance of either of the parties thereof. Should the employer decide to terminate said contract, he must notify the concerned employee and the termination of employment must rest on a just or authorized cause (Article 279, Labor Code of the Philippines). As can be gleaned under Article 282, id, only the following are considered as just causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect of duty by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the

employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) Other causes analogous to the foregoing. Articles 283 and 284, id, on the other hand, enumerate the authorized causes for termination: (1) Installation of laborsaving devices; (2) Redundancy; (3) Retrenchment to prevent losses; (4) Closing or cessation of business; and (5) disease of the employee whose continued employment is prohibited by law or is prejudicial to his health as well as the health of his employees. In your letter, you did not specifically state the reason why you were terminated from your post as a security guard. In fact, you mentioned that you merely surmised that you were reported to your employer and that by reason of such report you were terminated. If your employer did not properly notify you of your termination, or if you believe that your termination was not by reason of any of the aforementioned valid causes of termination or it was not in consonance with your contract, you may file a complaint for illegal dismissal before the National Labor Relations Commission. Should you be able to establish the violation committed by your employer, you may be reinstated to your post. As provided for under the law, x x x An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld up to the time of his actual reinstatement (Article 279, id). We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

April 2012 Philippine Supreme Court Decisions on Labor Law and Procedure
Posted on May 10, 2012 by Leslie C. Dy Posted in Labor Law, Philippines - Cases, Philippines - Law Tagged dismissal, due process, employer-employee relationship, probationary employment, project employee, retrenchment

Here are select April 2012 rulings of the Supreme Court of the Philippines on labor law and procedure: Dismissal; due process. When the Labor Code speaks of procedural due process, the reference is usually to the two (2)-written notice rule envisaged in Section 2 (III), Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code. MGG Marine Services, Inc. v. NLRC tersely described the mechanics of what may be considered a two-part due process requirement which includes the two-notice rule, x x x one, of the intention to dismiss, indicating therein his acts or omissions complained against, and two, notice of the decision to dismiss; and an opportunity to answer and rebut the charges against him, in between such notices. Here, the first and second notice requirements have not been properly observed. The adverted memo would have had constituted the charge sheet, sufficient to answer for the first notice

requirement, but for the fact that there is no proof such letter had been sent to and received by him. Neither was there compliance with the imperatives of a hearing or conference. Suffice it to point out that the record is devoid of any showing of a hearing or conference having been conducted. And the written notice of termination itself did not indicate all the circumstances involving the charge to justify severance of employment. For violating petitioners right to due process, the Supreme Court ordered the payment to petitioner of the amount of P30,000 as nominal damages. Armando Ailing vs. Jose B. Feliciano, Manuel F. San Mateo III, et al., G.R. No. 185829. April 25, 2012. Dismissal; just cause. In fine, an employees failure to meet sales or work quotas falls under the concept of gross inefficiency, which in turn is analogous to gross neglect of duty that is a just cause for dismissal under Article 282 of the Code. However, in order for the quota imposed to be considered a valid productivity standard and thereby validate a dismissal, managements prerogative of fixing the quota must be exercised in good faith for the advancement of its interest. The duty to prove good faith, however, rests with WWWEC as part of its burden to show that the dismissal was for a just cause. WWWEC must show that such quota was imposed in good faith. This WWWEC failed to do, perceptibly because it could not. The fact of the matter is that the alleged imposition of the quota was a desperate attempt to lend a semblance of validity to Alilings illegal dismissal. Armando Ailing vs. Jose B. Feliciano, Manuel F. San Mateo III, et al., G.R. No. 185829. April 25, 2012. Dismissal; retrenchment. Retrenchment is a valid exercise of management prerogative subject to the strict requirements set by jurisprudence, to wit: (1) That the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer; (2) That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (3) That the employer pays the retrenched employees separation pay equivalent to one month pay or at least month pay for every year of service, whichever is higher; (4) That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees right to security of tenure; and (5) That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, x x x efficiency, seniority, physical fitness, age, and financial hardship for certain workers. As aptly found by the NLRC and justly sustained by the CA, Petrocon exercised its prerogative to retrench its employees in good faith and the considerable reduction of work allotments of Petrocon by Saudi Aramco was sufficient basis for Petrocon to reduce the number of its personnel. As for the notice requirement, however, contrary to petitioners contention, proper

notice to the DOLE within 30 days prior to the intended date of retrenchment is necessary and must be complied with despite the fact that respondent is an overseas Filipino worker. In the present case, although respondent was duly notified of his termination by Petrocon 30 days before its effectivity, no allegation or proof was advanced by petitioner to establish that Petrocon ever sent a notice to the DOLE 30 days before the respondent was terminated. Thus, this requirement of the law was not complied with. Despite the fact that respondent was employed by Petrocon as an OFW in Saudi Arabia, still both he and his employer are subject to the provisions of the Labor Code when applicable. The basic policy in this jurisdiction is that all Filipino workers, whether employed locally or overseas, enjoy the protective mantle of Philippine labor and social legislations (citing Philippine National Bank v. Cabansag, G.R. No. 157010, June 21, 2005, 460 SCRA 514, 518 and Royal Crown Internationale v. NLRC, G.R. No. 78085, October 16, 1989, 178 SCRA 569.) International Management Services/Marilyn C. Pascual vs. Roel P. Logarta, G.R. No. 163657, April 18, 2012. Employee; probationary employee. The aforequoted Section 6 of the Implementing Rules of Book VI, Rule VIII-A of the Code specifically requires the employer to inform the probationary employee of such reasonable standards at the time of his engagement, not at any time later; else, the latter shall be considered a regular employee. Thus, pursuant to the explicit provision of Article 281 of the Labor Code, Section 6(d) of the Implementing Rules of Book VI, Rule VIII-A of the Labor Code and settled jurisprudence, petitioner Aliling is deemed a regular employee as of June 11, 2004, the date of his employment contract. The letter-offer to Aliling states that the regularization standards or the performance norms to be used are still to be agreed upon by him and his supervisor. Moreover, Aliling was assigned to GX trucking sales, an activity entirely different to the Seafreight Sales for which he was originally hired and trained for. In the present case, there was no proof that Aliling was informed of the standards for his continued employment, such as the sales quota, at the time of his engagement. Armando Ailing vs. Jose B. Feliciano, Manuel F. San Mateo III, et al., G.R. No. 185829. April 25, 2012. Employee; separation package. Article 283 of the Labor Code provides only the required minimum amount of separation pay, which employees dismissed for any of the authorized causes are entitled to receive. Employers, therefore, have the right to create plans, providing for separation pay in an amount over and above what is imposed by Article 283. There is nothing therein that prohibits employers and employees from contracting on the terms of employment, or from entering into agreements on employee benefits, so long as they do not violate the Labor Code or any other law, and are not contrary to morals, good customs, public order, or public policy. Consequently, petitioners are not allowed to receive separation pay from both the Labor Code, on the one hand, and the New Gratuity Plan and the SSP, on the other, they would receive double compensation for the same cause (i.e., separation from the service due to redundancy). Ma. Corina C. Jiao, et al. vs. Global Business Bank, Inc., et al., G.R. No. 182331, April 18, 2012. Employer-employee relationship. In determining the presence or absence of an employeremployee relationship, the Court has consistently looked for the following incidents, to wit: (a)

the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employers power to control the employee on the means and methods by which the work is accomplished. The last element, the so-called control test, is the most important element. It can be deduced from the March 1996 affidavit of petitioner that respondents challenged his authority to deliver some 158 checks to SFC. Considering that petitioner contested respondents challenge by pointing to the existing arrangements between BCC and SFC, it should be clear that respondents did not exercise the power of control over petitioner, because he thereby acted for the benefit and in the interest of SFC more than of BCC. Charlie Jao vs. BCC Products Sales, Inc. and Terrance Ty, G.R. No. 163700, April 18, 2012. Project employee; conversion into regular employee. In all the 38 projects where DMCI engaged Jamins services, the tasks he performed as a carpenter were indisputably necessary and desirable in DMCIs construction business. He might not have been a member of a work pool since DMCI insisted that it does not maintain a work pool, but his continuous rehiring in 38 projects over a period of 31 years and the nature of his work unmistakably made him a regular employee. In Maraguinot, Jr. v. NLRC, 348 Phil. 580 (1998), the Court held that once a project or work pool employee has been: (1) continuously, as opposed to intermittently, rehired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee. Surely, length of time is not the controlling test for project employment but it is vital in determining if the employee was hired for a specific undertaking or if it is tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, [private] respondent had been a project employee several times over. The nature of his employment ceased to be project-based when he was repeatedly re-hired due to the demands of petitioners business. D.M. Consunji, Inc. and/or David M. Consunji vs. Estelito, G.R. No. 192514, April 18, 2012. Dismissal; willful disobedience. For willful disobedience to be a valid cause for dismissal, these two elements must concur: (1) the employees assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. The petitioners arbitrary defiance to Graphics, Inc.s order for him to render overtime work constitutes willful disobedience. Because of his refusal to render overtime work, the company failed to meet its printing deadlines, resulting in losses to the company. The Supreme Court took into account the fact that petitioner was inclined to absent himself and to report late for work despite being previously penalized, and affirmed the CAs ruling that the petitioner is indeed utterly defiant of the lawful orders and the reasonable work standards prescribed by his employer. The Court reiterated its previous rulings stating that an employer has the right to require the performance of overtime service in any of the situations contemplated under Article

89 of the Labor Code and an employees non-compliance is willful disobedience. Realda v. New Age Graphics, Inc. et. al. G.R. No. 192190, April 25, 2012. Dismissal; inefficiency. The petitioners failure to observe Graphics, Inc.s work standards constitutes inefficiency that is a valid cause for dismissal. Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the alloted reasonable period, or by producing unsatisfactory results. As the operator of Graphics, Inc.s printer, he is mandated to check whether the colors that would be printed are in accordance with the clients specifications and for him to do so, he must consult the General Manager and the color guide used by Graphics, Inc. before making a full run. The employee in this case failed to observe this simple procedure and proceeded to print without making sure that the colors were at par with the clients demands. This resulted to delays in the delivery of output, client dissatisfaction, and additional costs to Graphics, Inc.. Realda v. New Age Graphics, Inc. et. al. G.R. No. 192190, April 25, 2012. Dismissal; due process. In King of Kings Transport, Inc. v. Mamac, this Court laid down the manner by which the procedural due requirements of due process can be satisfied: (1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. Reasonable opportunity under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees. (2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (a) explain and clarify their defenses to the charge against them; (b) present evidence in support of their defenses; and (c) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement. (3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

Graphics, Inc. failed to afford the petitioner with a reasonable opportunity to be heard and defend itself. An administrative hearing set on the same day that the petitioner received the memorandum and the 24-hour period given to him to submit a written explanation is far from reasonable. Furthermore, there is no indication that Graphics, Inc. issued a second notice, informing the petitioner of his dismissal. Graphics, Inc. admitted that it decided to terminate the petitioners employment when he ceased to report for work after being served with the memorandum requiring him to explain and subsequent to his failure to submit a written explanation. However, there is nothing on record showing that Graphics, Inc. placed its decision to dismiss in writing and that a copy thereof was sent to the petitioner. Notwithstanding the existence of a just cause to terminate petitioners employment, respondent was ordered to pay P30,000 as nominal damages for violation of the employees right to due process. Realda v. New Age Graphics, Inc. et. al. G.R. No. 192190, April 25, 2012. Dismissal; willful disobedience. Willful disobedience requires the concurrence of two elements: (1) the employees assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. Both elements are present in this case. First, at no point did the dismissed employees deny Kingspoint Express claim that they refused to comply with the directive for them to submit to a drug test or, at the very least, explain their refusal. This gives rise to the impression that their non-compliance is deliberate. The utter lack of reason or justification for their insubordination indicates that it was prompted by mere obstinacy, hence, willful thereby justifying their dismissal. Second, that the companys order to undergo a drug test is necessary and relevant in the performance of petitioners functions as drivers of Kingspoint Express is obvious. As the NLRC correctly pointed out, drivers are indispensable to Kingspoint Express primary business of rendering door-to-door delivery services. It is common knowledge that the use of dangerous drugs has adverse effects on driving abilities that may render employees incapable of performing their duties. Not only are they acting against the interests of Kingspoint Express, they also pose a threat to the public. Kakampi and its members, et al. v. Kingspoint Express and Logistic and/or Mary Ann Co, G.R. No. 194813, April 25, 2012. Dismissal; procedural due process requirements. While Kingspoint Express had reason to sever petitioners employment, this Court finds its supposed observance of the requirements of procedural due process pretentious. While Kingspoint Express required the dismissed employees to explain their refusal to submit to a drug test, the two (2) days afforded to them to do so cannot qualify as reasonable opportunity, which the Court construed in King of Kings Transport, Inc. v. Mamac as a period of at least five (5) calendar days from receipt of the notice. Thus, even if a just cause exists for the dismissal of petitioners, Kingspoint Express is still liable to indemnify the dismissed employees, with the exception of Panuelos, Dizon and Dimabayao, who did not appeal the dismissal of their complaints, with nominal damages in the amount of P30,000.00. Kakampi and its members, et al. v. Kingspoint Express and Logistic and/or Mary Ann Co, G.R. No. 194813, April 25, 2012.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 90786 September 27, 1991 ESPERO SANTOS SAIAW, petitioner vs. NATIONAL LABOR RELATIONS COMMISSION, ASSOCIATED BANK AND/ OR JOSE R. TENGCO, Chairman of the Board, ROLLIE TUAZON, Manager, respondents. Nicolas R. Ruiz, II for petitioner. Soluta, Leonidas, Marifosque, Javier & Aguila Law Offices for private respondents

SARMIENTO, J.:p This is a petition for review on certiorari of the Decision 1 rendered in NLRC Case No. 41272-85 dated July 26, 1989, affirming the dismissal of the petitioner by the respondent bank, and reversing thereby the Decision 2 of Labor Arbiter Benigno C. Villarente, Jr. of March 29, 1988 which declared the petitioner's dismissal as illegal and ordered his reinstatement with backwages and benefits. The records show that the petitioner, Espero Santos Salaw, was employed by the private respondents in September 1967 as a credit investigator-appraiser. His duties included inspecting, investigating, appraising, and identifying the company's foreclosed assets; giving valuation to its real properties, and verifying the genuineness and encumbrances of the titles of properties mortgaged to the respondents. On November 27, 1984, the Criminal Investigation Service (CIS) of the Philippine Constabulary, National Capital Region, extracted from the petitioner without the assistance of counsel a Sworn Statement 3 which made it appear that the petitioner, in cahoots with a co-employee, Reynaldo Madrigal, a supervisor in charge of the acquired assets of respondent Associated Bank, sold twenty sewing machines and electric generators which had been foreclosed by the respondent bank from Worldwide Garment and L.P. Money Garment, for P60,000.00, and divided the proceeds thereof in equal shares of P30,000.00 between the two of them. On December 5, 1984, the petitioner was requested by private respondent Rollie Tuazon, the bank manager, to appear before the bank's Personnel Discipline and

Investigation Committee (PDIC) which would be meeting the following day, December 6, 1984, at 9:00 a.m., in connection with the Worldwide case. When petitioner Salaw signified his readiness to appear before the PDIC, private respondent Rollie Tuazon sent him a letter 4 stating
Your request to appear before the Personnel Discipline and Invesgation Committee (PDIC) with regard to the Worldwide Case has been accepted. Thus, you are requested to come on Thursday, February 28, 1985 at 11:00 at the Board Room, 10th Floor of the Madrigal Building, Ayala, without counsel or representative. (Emphasis supplied)

On April 1, 1985, the petitioner was terminated from his employment effective March 27, 1985, for alleged serious misconduct or willful disobedience and fraud or willful breach of the trust reposed on him by the private respondents. Subsequently, the petitioner filed with the NLRC on April 17, 1985, a complaint for illegal dismissal against respondent Bank, Jose R. Tengco, and Rollie Tuazon. This case was docketed as Case No. NCR-4-1272-85. He likewise submitted an affidavit recanting his Sworn Statement before the CIS (Annex "A") mentioned earlier. After the proper proceedings, on March 29,1988, Labor Arbiter Benigno C. Villarente, Jr., rendered a Decision 5 the decretal portion of which reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered declaring the dismissal of complainant illegal and ordering respondents to reinstate complainant to his former or equivalent position without loss of seniority rights and to pay him his backwages and benefits due an employee of respondent Bank from the time of illegal dismissal until actual reinstatement.

The private respondents appealed the labor arbiter's decision to the National Labor Relations Commission (NLRC) which on July 26, 1989, rendered a Decision 6 reversing that of the labor arbiter and dismissing the case for lack of merit. The petitioner filed a Motion for Reconsideration of the NLRC decision, but this was denied in a Resolution 7 dated October 31, 1989. Hence, this recourse. The only issue for our resolution is whether or not the dismissal of the petitioner by the private respondents was legally justified. Under the Labor Code, as amended, the requirements for the lawful dismissal of an employee by his employer are two-fold: the substantive and the procedural. Not only must the dismissal be for a valid or authorized cause as provided by law (Articles 279, 281, 282-284, New Labor Code), but the rudimentary requirements of due process notice and hearing must also be observed before an employee may be dismissed. One does not suffice; without their concurrence, the terminate would, in the eyes of the law, be illegal. 8

The inviolability of notice and hearing for a valid dismissal an employee can not be overemphasized. Those twin requirements constitute essential elements of due process in cases employee dismissal. The requirement of notice is intended inform the employee concerned of the employer's intent dismiss him and the reason for the proposed dismissal; on other hand, the requirement of hearing affords the employ the opportunity to answer his employer's charges against him and accordingly to defend himself therefrom before dismissal effected. Neither one of these two requirements can be dispensed with without running afoul of the due process requirement of the Constitution.
9

We agree with the labor arbiter that the petitioner was terminated without the benefit of due process of law. His dismiss was, therefore, illegal. Thus,
Respondents' initial act in convening their Personnel Discipline and Investigation Committee (PDIC) to investigate complainant (after the CIS experience) would have complied with the demands of due process had complainant been given the opportunity to present his own defense and confront the witnesses, if any, and examine the evidence against him. But as the records clearly show, complainant was denied that constitutional right when his subsequent request refute the allegations against him was granted and a hearing was set "without counsel or representative. (See respondent Tuazon's letter t 10 respondent dated February 25, 1985).

The investigation of petitioner Salaw by the respondent Bank' investigating committee violated his constitutional right to due process, in as much as he was not given a chance to defend himself, as provided in Rule XIV, Book V of the Implementing Rules and Regulations of the Labor Code governing the dismissal of employees. Section 5 of the said Rule requires that "the employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires." 11 (Emphasis supplied.) Here petition was perfunctorily denied the assistance of counsel during investigation to be conducted by the PDIC. No reasons preferred which vitiated the denial with irregularity and unfairness. It is true that administrative and quasi-judicial bodies are not bound by the technical rules of procedure in the adjudication cases. However, the right to counsel, a very basic requirement of substantive due process, has to be observed. Indeed, rights to counsel and to due process of law are two of fundamental rights guaranteed by the 1987 Constitution to person under investigation, be the proceeding administrate civil, or criminal. Thus, Section 12(1), Article III thereof specifically provides: "Any person under investigation for the commssion of an offense shall have the right to ... have compete and independent counsel preferably of his own choice. If the person cannot afford the service of counsel, he must be provided with one. These rights cannot be waived except in writing in the presence of counsel." 12 To underscore the inviolability this provision, the third paragraph of the same section explicitly states that, "any confession or admission obtained in violation of this or the preceding section shall be inadmissible evidence against him." 13 As aptly observed by the labor arbiter, the respondents premised their action in dismissing the complainant on his supposed admission of the offense imputed to him by

the Criminal Investigation Service (CIS) in its interrogation in November, 1984. The said admission was carried in a three-page Sworn Statement signed by the complainant. Aside from this Statement, other evidence was presented by the respondents to establish the culpability of the complainant in the fraudulent sale of respondents' foreclosed properties. Even the minutes of proceeding taken during the investigation conducted by respondents were not presented. ... This is a glaring denial of due process. We find it worth reiterating the cardinal primary rights which must be respected even in proceedings of administrative character as enunciated by this Court in classic landmark decision of Justice Laurel in Ang Tibay, 14 wit:
(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Justice Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, Law. ed. 1129, the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence prese (ChiefJustice Hughes in Morgan v. U.S. 298 U.S. 468,66 S. Ct. 906, Law. ed. 1288). In the language of this Court in Edwards vs. McCoy 22 Phil. 598, the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right conspicuously futile if the person or persons to whom the evidence presented thrust it aside without notice or consideration. (3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregard namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached. (Edward vs. McCoy, supra.) ... (4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgate November 29, 1937, XXXVI O.G. 1335), but the evidence must be "substantial."(Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142,147, 57 S. Ct. 648, 650, 8 Law. ed. 965.) "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept adequate to support a conclusion." (Appalachian Electric Power v National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; Nation Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15 Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.)... (5) The decision must be rendered on the evidence presented the hearing, or at least contained in the record and disclosed to parties affected. (Interstate Commence Commission vs. L. & N.R. Co 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431) ... (6) The Court of Industrial Relations (now the National Relations Commission) or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of controversy, and not simply accept the views of a subordinate arriving at a decision .... (7) The Court of Industrial Relations (now NLRC) should, in controversial questions, render its decision in such a manner that parties to the proceeding can know the various issues involved, the reasons for the decisions rendered. The performance of this duty inseparable from the authority conferred upon it.

xxx xxx xxx

Considering further that the admission by the petitioner which was extracted from him by the Criminal Investigate Service of the Philippine Constabulary (National Capital Region) without the assistance of counsel and which was made the sole basis for his dismissal, can not be admitted in evidence against him, then, the finding of guilt of the PDIC, which was affirmed by the public respondent NLRC; has no more leg stand on. A decision with absolutely nothing to support it is a nullity. Significantly, the dismissal of the petitioner from his employment was characterized by undue haste. The law is clear that even in the disposition of labor cases, due process must not be subordinated to expediency or dispatch. Otherwise, the dismissal of the employee will be tainted with illegality. On this point, we have ruled consistently. 15 We reiterate the rule laid down in Santos v. NLRC 16 that normal consequences of a finding that an employee has been illegally dismissed are, firstly, that the employee becomes entitled to reinstatement to his former position without loss of seniority rights and, secondly, the payment of backwages corresponding to the period from his illegal dismissal up to actual reinstatement." The petitioner is entitled to no less. WHEREFORE, premises considered, judgment is hereby rendered SETTING ASIDE the appealed decision of the NLRC REINSTATING the decision of the labor arbiter. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur.

Footnotes
1 Espero Santos Salaw v. Associated Bank, et al., NLRC NCR 41272-85, July 26,1989, Rosario G. Encarnacion, Commissioner; Rollo, 68. 2 Salaw v. Associated Bank, et al., NLRC NCR 4-1275-85, March 29, 1988, Benigno C.Villarente, Jr., Labor Arbiter; Rollo, 46. 3 Annex "A", Rollo, 30. 4 Annex "E', Rollo, 38. 5 Salaw v. Associated Bank, et al., supra, note 2, 1. 6 Salaw v. Associated Bank, et al., supra, note 1, 1. 7 Annex "P", Rollo, 87.

8 San Miguel Corporation v. NLRC, G.R. No. 78277, May 12, 1989 173 SCRA 314. 9 Century Textile Mills, et al., v. NLRC, et al., No. 77859, May 25, 1988, 161 SCRA 528. 10 Salaw v. Associated Bank, et al., supra, note 5, 3. 11 The Labor Code of the Phils. and its implementing rules regulations, 1990 ed. 12 Section 12(l),1987 Constitution. 13 Section 1 2(3), 1 987 Constitution. 14 Ang Tibay v. Court of Industrial Relations, 69 Phil. 635. 15 See San Miguel Corporation v. NLRC, supra, note 8,4; Far East Bank and Trust Co., v. IAC, G.R. Nos. 73131-32, August 31, 1988, 1 SCRA 218; National Service Corporation v. NLRC, G.R. No. 698 November 29, 1988, 168 SCRA 122; San Miguel v. NLRC, No. 789 June 22, 1988, 612 SCRA 441. 16 G.R. No. 76721, September 21, 1987, 154 SCRA 166.

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

KING OF KINGS TRANSPORT, INC., CLAIRE DELA FUENTE, and MELISSA LIM,

G.R. No. 166208

Present:

Petitioners, QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, - versus TINGA, and VELASCO, JR., JJ.

Promulgated: SANTIAGO O. MAMAC, Respondent. June 29, 2007

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

Is a verbal appraisal of the charges against the employee a breach of the procedural due process? This is the main issue to be resolved in this plea for

review under Rule 45 of the September 16, 2004 Decision1[1] of the Court of Appeals (CA) in CA-GR SP No. 81961. Said judgment affirmed the dismissal of bus conductor Santiago O. Mamac from petitioner King of Kings Transport, Inc. (KKTI), but ordered the bus company to pay full backwages for violation of the twin-notice requirement and 13th-month pay. Likewise assailed is the December 2, 2004 CA Resolution2[2] rejecting KKTIs Motion for Reconsideration.

The Facts

Petitioner KKTI is a corporation engaged in public transportation and managed by Claire Dela Fuente and Melissa Lim.

Respondent Mamac was hired as bus conductor of Don Mariano Transit Corporation (DMTC) on April 29, 1999. The DMTC employees including

respondent formed the Damayan ng mga Manggagawa, Tsuper at ConductorTransport Workers Union and registered it with the Department of Labor and Employment. Pending the holding of a certification election in DMTC, petitioner KKTI was incorporated with the Securities and Exchange Commission which
1[1] Rollo, pp. 59-72. The Decision was penned by Associate Justice Delilah VidallonMagtolis and concurred in by Associate Justices Eliezer R. Delos Santos and Arturo D. Brion. 2[2] Id. at 84.

acquired new buses. Many DMTC employees were subsequently transferred to KKTI and excluded from the election.

The KKTI employees later organized the Kaisahan ng mga Kawani sa King of Kings (KKKK) which was registered with DOLE. Respondent was elected KKKK president.

Respondent was required to accomplish a Conductors Trip Report and submit it to the company after each trip. As a background, this report indicates the ticket opening and closing for the particular day of duty. After submission, the company audits the reports. Once an irregularity is discovered, the company issues an Irregularity Report against the employee, indicating the nature and details of the irregularity. Thereafter, the concerned employee is asked to explain the

incident by making a written statement or counter-affidavit at the back of the same Irregularity Report. After considering the explanation of the employee, the

company then makes a determination of whether to accept the explanation or impose upon the employee a penalty for committing an infraction. That decision shall be stated on said Irregularity Report and will be furnished to the employee.

Upon audit of the October 28, 2001 Conductors Report of respondent, KKTI noted an irregularity. It discovered that respondent declared several sold tickets as returned tickets causing KKTI to lose an income of eight hundred and ninety pesos. While no irregularity report was prepared on the October 28, 2001

incident, KKTI nevertheless asked respondent to explain the discrepancy. In his letter,3[3] respondent said that the erroneous declaration in his October 28, 2001 Trip Report was unintentional. He explained that during that days trip, the

windshield of the bus assigned to them was smashed; and they had to cut short the trip in order to immediately report the matter to the police. As a result of the incident, he got confused in making the trip report.

On November 26, 2001, respondent received a letter4[4] terminating his employment effective November 29, 2001. The dismissal letter alleged that the October 28, 2001 irregularity was an act of fraud against the company. KKTI also cited as basis for respondents dismissal the other offenses he allegedly committed since 1999.

On December 11, 2001, respondent filed a Complaint for illegal dismissal, illegal deductions, nonpayment of 13th-month pay, service incentive leave, and separation pay. He denied committing any infraction and alleged that his

dismissal was intended to bust union activities. Moreover, he claimed that his dismissal was effected without due process.

3[3] Id. at 102. 4[4] Id. at 100-101.

In its April 3, 2002 Position Paper,5[5] KKTI contended that respondent was legally dismissed after his commission of a series of misconducts and misdeeds. It claimed that respondent had violated the trust and confidence reposed upon him by KKTI. Also, it averred that it had observed due process in dismissing respondent and maintained that respondent was not entitled to his money claims such as service incentive leave and 13th-month pay because he was paid on commission or percentage basis.

On September 16, 2002, Labor Arbiter Ramon Valentin C. Reyes rendered judgment dismissing respondents Complaint for lack of merit.6[6]

Aggrieved, respondent appealed to the National Labor Relations Commission (NLRC). On August 29, 2003, the NLRC rendered a Decision, the dispositive portion of which reads:

WHEREFORE, the decision dated 16 September 2002 is MODIFIED in that respondent King of Kings Transport Inc. is hereby ordered to indemnify complainant in the amount of ten thousand pesos (P10,000) for failure to comply with due process prior to termination. The other findings are AFFIRMED. SO ORDERED.7[7]

5[5] Records, pp. 58-63. 6[6] Rollo, p. 115. 7[7] Id. at 151.

Respondent moved for reconsideration but it was denied through the November 14, 2003 Resolution8[8] of the NLRC.

Thereafter, respondent filed a Petition for Certiorari before the CA urging the nullification of the NLRC Decision and Resolution.

The Ruling of the Court of Appeals

Affirming the NLRC, the CA held that there was just cause for respondents dismissal. It ruled that respondents act in declaring sold tickets as returned tickets x x x constituted fraud or acts of dishonesty justifying his dismissal.9[9]

Also, the appellate court sustained the finding that petitioners failed to comply with the required procedural due process prior to respondents termination. However, following the doctrine in Serrano v. NLRC,10[10] it modified the award of PhP 10,000 as indemnification by awarding full backwages from the time respondents employment was terminated until finality of the decision.

8[8] Id. at 152. 9[9] Id. at 67. 10[10] GR No. 117040, January 27, 2000, 323 SCRA 445.

Moreover, the CA held that respondent is entitled to the 13th-month pay benefit.

Hence, we have this petition.

The Issues

Petitioner raises the following assignment of errors for our consideration:

Whether the Honorable Court of Appeals erred in awarding in favor of the complainant/private respondent, full back wages, despite the denial of his petition for certiorari. Whether the Honorable Court of Appeals erred in ruling that KKTI did not comply with the requirements of procedural due process before dismissing the services of the complainant/private respondent. Whether the Honorable Court of Appeals rendered an incorrect decision in that [sic] it awarded in favor of the complaint/private respondent, 13th month pay benefits contrary to PD 851.11[11]

The Courts Ruling

11[11] Rollo, p. 207; original in capital letters.

The petition is partly meritorious.

The disposition of the first assigned error depends on whether petitioner KKTI complied with the due process requirements in terminating respondents employment; thus, it shall be discussed secondly.

Non-compliance with the Due Process Requirements

Due process under the Labor Code involves two aspects: first, substantive the valid and authorized causes of termination of employment under the Labor Code; and second, proceduralthe manner of dismissal.12[12] In the present case, the CA affirmed the findings of the labor arbiter and the NLRC that the termination of employment of respondent was based on a just cause. This ruling is not at issue in this case. The question to be determined is whether the procedural requirements were complied with.

Art. 277 of the Labor Code provides the manner of termination of employment, thus:

Art. 277. Miscellaneous Provisions.x x x 12[12] Agabon v. National Labor Relations Commission, GR No. 158693, November 17, 2004, 442 SCRA 573, 612.

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer.

Accordingly, the implementing rule of the aforesaid provision states:

SEC. 2. Standards of due process; requirements of notice.In all cases of termination of employment, the following standards of due process shall be substantially observed: I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side. (b) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(c) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. 13[13]

In case of termination, the foregoing notices shall be served on the employees last known address.14[14]

To clarify, the following should be considered in terminating the services of employees:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. Reasonable opportunity under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.15[15] This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to

intelligently prepare their explanation and defenses, the notice should contain a
13[13] The same provision is also found in Section 2(d) of Rule I of Book VI of the Omnibus Rules Implementing the Labor Code. 14[14] Omnibus Rules Implementing the LABOR CODE, Book V, Rule XXIII. 15[15] Ruffy v. National Labor Relations Commission, GR No. 84193, February 15, 1990, 182 SCRA 365, 369-370.

detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.

(2)

After serving the first notice, the employers should schedule and

conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the

employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

In the instant case, KKTI admits that it had failed to provide respondent with a charge sheet.16[16] However, it maintains that it had substantially complied with the rules, claiming that respondent would not have issued a written explanation had he not been informed of the charges against him. 17[17]

We are not convinced.

First, respondent was not issued a written notice charging him of committing an infraction. The law is clear on the matter. A verbal appraisal of the charges against an employee does not comply with the first notice requirement. In Pepsi Cola Bottling Co. v. NLRC,18[18] the Court held that consultations or conferences are not a substitute for the actual observance of notice and hearing. Also, in Loadstar Shipping Co., Inc. v. Mesano,19[19] the Court, sanctioning the employer for disregarding the due process requirements, held that the employees written explanation did not excuse the fact that there was a complete absence of the first notice.

16[16] Rollo, p. 212. 17[17] Id. at 215. 18[18] GR No. 101900, June 23, 1992, 210 SCRA 277. 19[19] GR No. 138956, August 7, 2003, 408 SCRA 478.

Second, even assuming that petitioner KKTI was able to furnish respondent an Irregularity Report notifying him of his offense, such would not comply with the requirements of the law. We observe from the irregularity reports against respondent for his other offenses that such contained merely a general description of the charges against him. The reports did not even state a company rule or policy that the employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of employment under Art. 282 of the Labor Code. Thus, KKTIs standard charge sheet is not sufficient notice to the employee.

Third, no hearing was conducted.

Regardless of respondents written

explanation, a hearing was still necessary in order for him to clarify and present evidence in support of his defense. Moreover, respondent made the letter merely to explain the circumstances relating to the irregularity in his October 28, 2001 Conductors Trip Report. He was unaware that a dismissal proceeding was already being effected. Thus, he was surprised to receive the November 26, 2001

termination letter indicating as grounds, not only his October 28, 2001 infraction, but also his previous infractions.

Sanction for Non-compliance with Due Process Requirements

As stated earlier, after a finding that petitioners failed to comply with the due process requirements, the CA awarded full backwages in favor of respondent

in accordance with the doctrine in Serrano v. NLRC.20[20] However, the doctrine in Serrano had already been abandoned in Agabon v. NLRC by ruling that if the dismissal is done without due process, the employer should indemnify the employee with nominal damages.21[21]

Thus, for non-compliance with the due process requirements in the termination of respondents employment, petitioner KKTI is sanctioned to pay respondent the amount of thirty thousand pesos (PhP 30,000) as damages.

Thirteenth (13th)-Month Pay

Section 3 of the Rules Implementing Presidential Decree No. 85122[22] provides the exceptions in the coverage of the payment of the 13th-month benefit. The provision states:

SEC. 3. Employers covered.The Decree shall apply to all employers except to: xxxx 20[20] Supra note 10 21[21] Supra note 12, at 617. 22[22] Requiring All Employers to Pay Their Employees a 13th-Month Pay (13th-Month Pay Law), (1976).

e) Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned.

Petitioner KKTI maintains that respondent was paid on purely commission basis; thus, the latter is not entitled to receive the 13th-month pay benefit. However, applying the ruling in Philippine Agricultural Commercial and Industrial Workers Union v. NLRC,23[23] the CA held that respondent is entitled to the said benefit. It was erroneous for the CA to apply the case of Philippine Agricultural Commercial and Industrial Workers Union. Notably in the said case, it was established that the drivers and conductors praying for 13th- month pay were not paid purely on commission. Instead, they were receiving a commission in

addition to a fixed or guaranteed wage or salary. Thus, the Court held that bus drivers and conductors who are paid a fixed or guaranteed minimum wage in case their commission be less than the statutory minimum, and commissions only in case where they are over and above the statutory minimum, are entitled to a 13thmonth pay equivalent to one-twelfth of their total earnings during the calendar year.

23[23] GR No. 107994, August 14, 1995, 247 SCRA 256.

On the other hand, in his Complaint,24[24] respondent admitted that he was paid on commission only. Moreover, this fact is supported by his pay slips25[25] which indicated the varying amount of commissions he was receiving each trip. Thus, he was excluded from receiving the 13th-month pay benefit.

WHEREFORE, the petition is PARTLY GRANTED and the September 16, 2004 Decision of the CA is MODIFIED by deleting the award of backwages and 13th-month pay. Instead, petitioner KKTI is ordered to indemnify respondent the amount of thirty thousand pesos (PhP 30,000) as nominal damages for failure to comply with the due process requirements in terminating the employment of respondent.

No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice

24[24] Records, pp. 2-3. 25[25] Id. at 28-33.

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairperson

ANTONIO T. CARPIO

CONCHITA CARPIO MORALES Associate Justice Associate Justice

DANTE O. TINGA Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice