455 Phil. 936
SANDOVAL-GUTIERREZ, J.:
"We find the Petition replete with merits.On April 5, 1999, petitioner filed a motion for reconsideration but was denied.
"Section 1 of Rule XIV of the Implementation Regulations provides that no worker shall be dismissed except for a just or authorized cause provided by law and after due process.
"The two facets of this legal provision are: (a) the legality of the act of dismissal, that is dismissal under the grounds provided for under Article 283 (now 282) of the New Labor Code; and (b) legality in manner of dismissal (Shoemart Inc. vs. NLRC, G.R. No. 74225, August 11, 1989).
"Anent the first issue, the law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employer's decision to dismiss him. (Section 13, BP 130; Section 2, Rule XIV, Book V, Rules and Regulations of the Labor Code, as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory, in the absence of which any judgment reached by management is void and inexistent.
"In the instant case, no written charge prior to the dismissal was ever furnished the petitioner. Respondent Loadstar tries to answer this by reasoning that, considering that petitioner submitted to respondent his handwritten explanation in which he categorically admitted his bringing down of the subject television set without prior permission from the company, then no notice was required.
"We cannot accept this contention. The law is clear. The High Court has repeatedly held that the two notice- requirement is mandatory. Moreover, the twin requirements of notice and hearing constitute essential elements of due process in cases of employee dismissal (Century Textile Mills, Inc., et al. vs. NLRC, G.R. No. 77859, May 25, 1988).
"In the present case, there is no showing that petitioner was ever given ample opportunity to be heard between the time after his handwritten explanation dated February 15, 1995 was submitted and his disembarkation order dated March 1, 1995. Respondent Loadstar insists that petitioner's handwritten explanation is a categorical admission of his guilt. We are not persuaded. A cursory reading of the said letter would show that, petitioner was merely explaining his actions, but did not categorically admit having stolen the item. In any case, the fact remains that no hearing was made to hear petitioner's side. Respondent Loadstar virtually made an assumption on the basis of petitioner's letter alone that considering the time and the manner in which the taking was made, then petitioner is guilty of stealing and, therefore, should be dismissed. No notice was ever given to inform petitioner that his dismissal is being sought and by which he could be apprised on the full consequence of his acts. And neither was a hearing conducted, in order that he be given an opportunity to refute the accusations leveled against him. `Ample opportunity' is meant every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense (Diosdado Duffy vs. NLRC and Central Azucarera, G.R. No. 84193, February 15, 1990).
"In this case, although the interregnum between the date of the notice of dismissal and the date of effectivity ostensibly provided the petitioner time within which to defend himself, there really was no hearing conducted, and hence no opportunity to defend himself.
"In a long line of decisions, the Supreme Court has ruled that not even consultations or conferences can be substituted for the actual observance of notice and hearing and neither is a notice of preventive suspension and investigation in relation thereto (Pepsi Cola Bottling Co. vs. NLRC, supra; Norman de Vera vs. NLRC and Bank of the Philippine Islands, Inc., G.R. No. 93070, August 9, 1991).
"With more reason then must we condemn its virtual absence in the case at bar.
"Anent the second issue, private respondent Loadstar posits that petitioner's act of taking the television without permission constitutes gross misconduct and a breach of trust of the confidence reposed on him which justified his dismissal."x x x x x x x x x
"In the case at bar, we note that the intention of the employee to steal the item has not been fully established considering the absence of any investigation and hearing conducted. Hence, considering that petitioner had no derogatory record in the 15 years he was in service with respondent Loadstar, it is therefore arbitrary to make an immediate conclusion on his guilt. More importantly, we agree with petitioner that the penalty of dismissal was too harsh. In Gold City Integrated Port Services, Inc. vs. NLRC, G.R. No. 86000, September 21, 1990, it was ruled that there must be reasonable proportionality between the offense and the penalty imposed therefor.
"Considering that the television, a minimal item at that, was immediately restored and that petitioner immediately forwarded his letter of apology with explanation, and considering further that it was his first time to commit the charge leveled against him, a penalty of suspension could have just sufficed.
"Viewing from the foregoing, the dismissal of the employee was clearly illegal.
"With the finding that the petitioner was illegally dismissed, the order for reinstatement with full backwages should follow as a matter of right. In this case, however, considering the strained relations between the parties, the Court deemed it best to award separation pay in lieu of reinstatement. Other monetary claims, rights and benefits, as prayed for and as granted by law and the shipping company, should also be awarded."x x x x x x x x x
"WHEREFORE, the decision of public respondent National Labor Relations Commission is hereby SET ASIDE. Private respondent Loadstar Shipping Co. is hereby ordered to pay petitioner separation pay in lieu of reinstatement, as well as full backwages from the time his compensation was withheld from him up to the finality of this decision, plus other monetary benefits which may be due petitioner.
"SO ORDERED."
"The law requires that an employee sought to be dismissed must be served two written notices before termination of his employment. The first notice is to apprise the employee of the particular acts or omissions by reason of which his dismissal has been decided upon; and the second notice is to inform the employee of the employer's decision to dismiss him. Failure to comply with the requirement of two notices makes the dismissal illegal. The procedure is mandatory. Non-observance thereof renders the dismissal of an employee illegal and void."The mandatory first notice is undeniably absent in the case at bar. Prior to respondent's termination from the service, he was neither apprised of the particular acts for which his dismissal is sought, nor was he directed to explain why he should not be dismissed for taking out from the vessel company property.