588 Phil. 43
NACHURA, J.:
Please be informed that you have been negligent in attending business meetings designated by the Management that needs your presence. You are required to submit an explanation letter within 24 hrs. upon receiving this memo regarding your absence at DECS Meeting and PIAP General Membership meeting last March 30, 2000.[2]On the same day, petitioner submitted his explanation through a letter, wherein he apologized to respondent saying that he forgot about these engagements. Petitioner explained that he arrived at the office in short pants and had to return home to change his attire, but that there was an on-going transport strike which caused his inability to keep the appointments.
Your habitual absences and tardiness has been noticed but you continue to exhibit such despite verbal warnings. You have been absent for one (1) week from July 3-8, then July 12, 22 & 24, 2000 and several days for the month of May and June. Brought about by the present financial situation of the company, we regret to inform you that the company can't tolerate employees who post a burden more to the situation.[3]On July 26, 2000, respondent terminated petitioner's employment. The termination letter reads:
Please be informed that your function as Printing Manager is terminated effective this date due to multiple violations made against company rules and regulations as listed below:Aggrieved, petitioner filed a complaint[5] with the NLRC for illegal dismissal and damages. After hearing, LA Salimathar V. Nambi, on February 28, 2002, rendered a Decision, the decretal portion of which states:You continued to exhibit such, despite verbal warnings. We regret to inform you that the company cannot tolerate such behavior.[4]
- Habitual absences the following dates:
July 3-8, 2000
July 12, 22 & 24- Several Saturday absences and tardiness for the month
of May & June 2000;- Absences on DECS and PIAP meeting you are delegated to
attend on March 20, 2000.
IN VIEW OF THE FOREGOING, the dismissal of complainant is hereby declared illegal. However, in view of the strained relationship between complainant, instead of reinstatement, respondents are hereby ordered to pay complainant separation pay of one (1) month salary for every year of service from the date of employment to the date of termination.Dissatisfied with the LA's decision, petitioner appealed to the NLRC, and on January 22, 2003, the NLRC decided the case, disposing as follows:
In addition, respondents are also ordered to pay complainant a service incentive leave pay of five (5) days from date of employment to date of dismissal and pro-rated 13th month pay.
The Computation and Examination Unit of this Office is hereby directed to compute complainant's entitlements which shall form part of this decision.
All other claims are hereby DISMISSED for lack of basis.
SO ORDERED.[6]
WHEREFORE, the assailed decision of 28 February 2002 is hereby MODIFIED in the sense that respondents-appellees are Ordered to pay the complainant-appellant 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 this decision.Respondents sought reconsideration of the NLRC decision, but the same was denied in a Resolution[8] dated May 6, 2003.
All other claims are DISMISSED for lack of merit.
SO ORDERED.[7]
WHEREFORE, the assailed decision dated January 22, 2003 of the Honorable Commission as well as the decision dated February 28, 2002 of the Honorable Labor Arbiter are hereby ANNULLED and SET ASIDE. The dismissal of private respondent Reynaldo Agullano from employment is hereby declared valid and in accordance with law.Petitioner filed a motion for reconsideration, but the CA denied the same in a Resolution[9] dated July 28, 2004.
ART. 282. An employer may terminate an employment for any of the following causes:Agreeing with respondent's position that the petitioner's acts amounted to these two just causes for termination, the CA expounded, thus:
x x x x
(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;
Generally, tardiness and absenteeism, like abandonment, are a form of neglect of duty. In one case, acts of insubordination, coupled with habitual tardiness, were found sufficient causes for dismissal, especially considering the fact that the employees involved were not mere rank and file employees but supervisors who owed more than the usual fealty to the organization and were therefore expected to adhere to its rules in an exemplary manner.On the basis of this exposition, there is, ostensibly, compliance with the first facet of a valid dismissal as there appears a just cause therefor.
Clearly, [petitioner's] unexplained absences and tardiness constitute habitual and gross neglect of duties. x x x
It must also be remembered that [petitioner] is a managerial employee, and as such, he enjoys the trust and confidence of his employer. The basic premise for dismissal on the ground of loss of confidence is that the employee concerned holds a position of trust and confidence. It is the breach of this trust that results in the employer's loss of confidence in the employee.[11]
Not to be taken lightly, of course, is the hearing or opportunity for the employee to defend himself personally or by counsel of his choice.The procedure for this twin notice and hearing requirement was thoroughly explained in King of Kings Transport v. Mamac,[13] in this wise:
(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.A careful examination of the disciplinary procedure adopted by the respondent which led to the dismissal of petitioner shows that the respondent merely paid lip service to the foregoing procedural due process requirement.
(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given an 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, the 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.
(T)here is still a need to comply with the twin notice requirement and the requisite hearing or conference to ensure that the employees are afforded due process even though they may have been caught in flagrante or when the evidence of the commission of the offense is strong.Third, if the July 25, 2000 memorandum is to be considered the first notice, it would suffer from patent infirmities, and not just from the lack of a hearing or conference. It does not grant the petitioner an opportunity to answer the charges of absenteeism and tardiness; it does not give him time to seek the assistance of counsel; and most tellingly, it was to be followed the very next day with the notice of termination, effective immediately.
Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the dismissal or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights x x x. The indemnity to be imposed should be stiffer to discourage the abhorrent practice of "dismiss now, pay later" x x x.Applying this principle in the light of the circumstances surrounding the case at bench, we deem it appropriate to fix the amount of nominal damages at P30,000.00. We likewise note as proper the petitioner's entitlement to the money equivalent of the five-day service incentive leave for the one year period of his employment, as found by the LA.
Under the Civil Code, nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.
x x x x
The violation of the petitioners' right to statutory due process by the private respondent warrants the payment of indemnity in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances. x x x.