493 Phil. 410
PANGANIBAN, J.:
“WHEREFORE, considering all the foregoing, the petition is hereby granted. The assailed decision and resolutions of public respondents Labor Arbiter and NLRC are MODIFIED. Accordingly, [Petitioner] GLAXO-WELLCOME PHILS., INC. is hereby ordered:“a) to pay JOSSIE RODA DE GUZMAN full backwages from the time of her dismissal up to the termination of this case;
“b) to pay NORMAN CEREZO his salary equivalent to [his] period of suspension which is thirty days.”[4]
“On July 20, 1990, [respondent] union NAGKAKAISANG EMPLEYADO NG WELLCOME-DFA (NEW-DFA) filed a Petition for Certification Election with the DOLE-NCR seeking to represent the bargaining unit comprised of all the regular rank-and-file employees of [petitioner] company GLAXO-WELLCOME.
“Acting upon such petition, the Med-Arbiter ordered that a Certification Election be conducted on September 10, 1990. The election, however, resulted in a stand-off or a tie between ‘NO UNION’ and ‘NEW-DFA’.
“As a consequence thereof, NEW-DFA filed an election protest with the Med-arbitration Branch of the Department of Labor and Employment. [Respondent] union claimed that its failure to obtain the required majority vote can be ascribed to several acts of manipulation, interference and intimidation committed by [petitioner] company GLAXO-WELLCOME prior to and during the conduct of the certification elections. The [respondent] union alleged as follows:‘1. Several days before the election on September 10, 1990, GLAXO-WELLCOME issued a circular relative to the improvement of the company’s retirement policy;‘2. On September 9, 1990, about twenty (20) medical representatives from Luzon were booked at Valle Verde Motel in Pampanga for a company-sponsored fellowship program, whereupon, said employees were treated to dinner and were given circulars containing cash incentive schemes dated September 5 and 6, 1990. The following day, the medical representatives went back to Makati. They were treated to breakfast, [after which] they were told to immediately cast their votes;‘3. On September 9, 1990, [petitioner] company hosted an overnight beach party held at Villamar Beach Resort in Cavite for Metro Manila based medical representatives and office staff;‘4. On September 6, 1990, several medical representatives were treated to a disco party at the Kudos Disco Club in Makati;‘5. On September 8, 1990, the [petitioner] company likewise hosted a beach party for its medical representatives from the Negros, Iloilo, Leyte and Zamboanga provinces. On said occasion, the district sales manager of the said area allegedly appealed to the employees to vote for ‘no union’ in the scheduled certification elections;‘6. On September 10, 1990, seventeen (17) rank and file employees of the company’s Calmic Division were escorted by the Customer-Service Manager from the company depot to the company’s head office where said employees were supposed to cast their votes;‘7. The company receptionist allegedly checked the names of every voter and told them that the ballots were coded and that management would certainly know the votes cast by each voter;‘8. The President and Gen. Manager of [petitioner] company posted [themselves] inside the polling place and watched the employees cast their votes.’
“After trial, however, the Med-Arbiter dismissed the [respondent union’s] election protest for lack of substantial evidence. The Secretary of Labor and Employment, on appeal, affirmed the dismissal of said election protest.
“In the meantime, GLAXO-WELLCOME adopted a new Car Allocation Policy. Under the provisions of the said car plan, a prioritization schedule in the assignment of company vehicles is to be fixed based on the sales performance of the employees. Pursuant to the same, several company cars had to be re-assessed and re-assigned in favor of other employees more qualified under the priority list.
“Incidentally, included among the vehicles that had to be re-allocated in accordance with the priority schedule of the new car plan were [those] of union officers Norman Cerezo and Jossie Roda de Guzman.
“Accordingly, a memorandum was sent by the company to [Respondent] de Guzman advising her that she would have to surrender the vehicle assigned to her in light of the new car policy. De Guzman, however, refused to turn over said car and instead sought x x x reconsideration from the company’s National Sales Manager. The latter, regrettably, did not accede to de Guzman’s request. On November 29, 1990, de Guzman, thru counsel, wrote the company, asking that the withdrawal of her car be held in abeyance. The company, however, rejected her petition. On December 7, 1990, de Guzman received another memorandum from the company, again instructing her to return the vehicle. The following day, de Guzman sent a letter to the company reiterating her plea for the suspension of the withdrawal of her car. On December 17, 1990, a final warning was sent to de Guzman instructing her to return her assigned vehicle or else she would be charged for insubordination and be dismissed. Finally, because of de Guzman’s staunch refusal to comply with the order, through a letter dated December 20, 1990, she was cited, and at the same time, terminated for gross insubordination.
“[Respondent] Norman Cerezo, on the other hand, was likewise sent several instructions to surrender his assigned car. However, he also refused to comply. On account of his defiance, the company, on December 5, 1990, sent Cerezo a notice of dismissal effective immediately upon receipt. Forthrightly, [Respondent] Cerezo referred the matter to his counsel who, on the same date, sought for the reconsideration of [respondent’s] discharge. On December 17, 1990, Cerezo received a letter from the company informing him that his dismissal had been reconsidered and commuted to a thirty (30) day suspension without pay.
“Perceiving the enumerated events to be unduly oppressive to labor, [respondent] union NEW-DFA, Jossie De Guzman and Norman Cerezo lodged a complaint before the Labor Arbiter against [petitioner] company, GLAXO-WELLCOME, for unfair labor practice, illegal dismissal and illegal suspension.
“According to the [respondent] union, the ‘massive electioneering and manipulative acts’ of GLAXO-WELLCOME prior to and during the certification election unduly interfered with the workers’ right to self-organization and are constitutive of unfair labor practice. NEW-DFA likewise averred that the new Car Allocation Policy adopted by the company was intended to harass, retaliate and discriminate against union officers and members.
“[Respondent] union also challenged the legality of the suspension and dismissal of two of its officers, namely: Norman Cerezo and Jossie Roda de Guzman. It argued that the suspension and dismissal were effected without any prior hearing.
“The [petitioner] company, on the other hand, disclaimed any intent to discourage union activities and to tamper with the right of its employees to self-organization. It averred that the fellowship programs sponsored by the company, the cash incentive schemes given by the same and other alleged acts of ‘electioneering’ were not designed to interfere in the conduct of the certification elections. GLAXO-WELLCOME also maintained that its car allocation policy was implemented merely to rationalize the distribution of company vehicles. It also asserted that de Guzman and Cerezo were notified, via several memoranda, of the grounds for which the dismissal and suspension were effected.
“After perusing the arguments and positions of both parties the Labor Arbiter dismissed the charges of unfair labor practice, illegal dismissal and illegal suspension filed against GLAXO-WELLCOME by [respondent] union. On appeal, the NLRC affirmed the dismissal of the complaint. NLRC likewise denied the [respondents’] motion for reconsideration.”[5]
“Whether the Court of Appeals erred in ruling that petitioner did not observe procedural due process in terminating and suspending the employment of de Guzman and Cerezo, respectively.”[15]
The CA affirmed the findings of the labor arbiter and the NLRC that the termination of the employment of De Guzman and the suspension of Cerezo were based on a “just cause.” These findings are not at issue here. The only question to be determined is whether the notice and hearing requirements were complied with.Memoranda Complied
In the last couple of decades, this Court has grappled with the legal effect of and the corresponding sanction for the failure of an employer to comply with the due process requirements of the law. Prior to the promulgation of Wenphil v. NLRC[16] in 1989, the prevailing doctrine held that dismissing employees without giving them prior notices and an opportunity to be heard was illegal; and that, as a consequence, they were entitled to reinstatement plus full back wages. Wenphil abandoned this jurisprudence and ruled that if the dismissal was for a just or an authorized cause, but done without due process, the termination was valid; but that, the employer should be sanctioned with the payment of indemnity ranging from P1,000 to P10,000. Serrano v. NLRC,[17] promulgated in 2000, modified Wenphil. It considered such termination “ineffectual” (not illegal) and sanctioned the employer with payment of full back wages plus nominal and moral damages, if warranted by the evidence; and, in case the dismissal was for an authorized cause, separation pay in accordance with Article 283 of the Labor Code.[18]
Recently in Agabon v. NLRC,[19] this Court effectively reverted to Wenphil and ruled that a dismissal due to abandonment -- a just cause -- was not illegal or ineffectual, even if done without due process; but that the employer should indemnify the employee with “nominal damages for non-compliance with statutory due process.”
The present case raises the issue of whether, on the basis of the established facts, respondents were accorded “statutory due process” that would entitle them to the sanctions prescribed by the above-cited jurisprudence.
Section 2(d) of Rule 1 of Book VI of the Omnibus Rules Implementing the Labor Code (Implementing Rules) sets forth the procedure for terminating employment as follows:(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:To stress, if the dismissal is based on a just cause under Article 282 of the Labor Code, the employer must give the employee (1) two written notices and (2) a hearing (or at least, an opportunity to be heard). The first notice is intended to inform the employee of the employer’s intent to dismiss and the particular acts or omissions for which the dismissal is sought. The second notice is intended to inform the employee of the employer’s decision to dismiss. This decision, however, must come only after the employee has been given a reasonable period, from receipt of the first notice, within which to answer the charge; and ample opportunity to be heard with the assistance of counsel, if the employee so desires.[21]
For termination of employment based on just causes as defined in Article 282 of the Labor Code:(i) 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.
(ii) 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; and(iii) 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.[20]
The twin requirements of (a) two notices and (b) hearing are necessary to protect the employee’s security of tenure, which is enshrined in the Constitution, the Labor Code and related laws.[22]
The notices to be given and the hearing to be conducted generally constitute the two-part due process requirement of law that the employer must accord the employee. In Kingsize Manufacturing Corporation v. NLRC,[23] the Court held that this requirement was “not a mere technicality but a requirement of due process to which every employee is entitled to insure that the employer’s prerogative to dismiss or lay-off is not abused or exercised in an arbitrary manner.”[24]
“Likewise, a reading of the guidelines in consonance with the express provisions of law on protection to labor (which encompasses the right to security of tenure) and the broader dictates of procedural due process necessarily mandate that notice of the employer's decision to dismiss an employee, with reasons therefore, can only be issued after the employer has afforded the employee concerned ample opportunity to be heard and to defend himself.”In Nuez,[38] the notice served on the employee merely asked him to explain why he should not be administratively dealt with for his refusal to comply with a valid order of his superior. The notice did not state that the employee was being dismissed, but it was still deemed sufficient compliance with the notice required under the Implementing Rules.
“The employer must furnish the worker with two (2) written notices before termination of employment can be legally effected. The first is the notice to apprise the employee of the particular acts or omissions for which his dismissal is sought. This may be loosely considered as the proper charge. The second is the notice informing the employee of the employer's decision to dismiss him. This decision, however, must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge, and ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires. The requirement of notice is not a mere technicality but a requirement of due process to which every employee is entitled.”[40] (Underscoring supplied)The above text paraphased Tiu v. NLRC,[41] which had been penned by Chief Justice Hilario G Davide Jr. However, we note that these cases merely stated that the first notice could loosely be considered as a proper charge. Verily, notice to the employee should merely embody the particular acts or omissions constituting the grounds for which the dismissal is sought. An employee may be dismissed only if the grounds mentioned in the pre-dismissal notice were the ones cited for the termination of employment.[42] In fact, Tiu v. NLRC[43] merely requires that the employee be appraised of the particular acts and omissions for which the dismissal is sought.