Republic of the
Supreme Court
THIRD DIVISION
MAGRO
PLACEMENT AND G.R. NO. 156964
GENERAL
SERVICES, registered
in
the name of Marina G. Sobremesana,
Petitioner,
Present:
YNARES-SANTIAGO,
J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
and
NACHURA,
JJ.
CRESENCIANO
E. HERNANDEZ, Promulgated:
Respondent. July 4, 2007
x-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - x
D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
Before
the Court is a Petition for Review on Certiorari under Rule 45 of the
Revised Rules of Court assailing the Decision[1]
dated
The factual background of the case is
as follows:
Magro Placement and General Services (petitioner) is a duly
licensed recruitment agency. It is the local agency of Orbit Recruitment Office
of Jeddah, Kingdom of Saudi Arabia (K.S.A.).
On
After
successfully undergoing a battery of interviews and trade tests, respondent was
hired as Auto Electrician of Al Yamama Est. (Al Yamama) in Jeddah, K.S.A. for a two-year contract with a
basic monthly salary of US$450.00 for 10 hours a day, 6 days a week regular
working hours, 15 days vacation leave and 15 days sick leave with full pay per
year of service, and free food allowance of US$50.00 a month with free suitable
housing.[5] Thus,
he resigned from Toyota Pasong Tamo,
Inc.
On
In
a Statement dated January 30, 2000, respondent narrated his day-to-day
experience that: he could not perform his job well because the cars being repaired
at Al Yamama were American cars and he had experience
with Japanese cars only; Al Yamama had no tester for
checking car components; he understood a
few Arabic words only and could not communicate with this employer because the
latter could understand a few English words only; the accommodation had no aircon or electric fan and there were plenty of mosquitoes;
respondent's food allowance was only 10 riyals every two days and during lunch
the employer bought the food; he did not sign any employment contract in Saudi
Arabia; he only signed an employment contract in the Philippines; an electrical
job is not easy, even experts need a repair manual and wiring diagrams which Al
Yamama did not have; in view thereof, respondent was
no longer willing to continue his job with his employer, Al Yamama,
and he was willing to work with other employers.[6]
Respondent
executed another Statement dated February 10, 2000 stating that: he could no
longer continue his job with Al Yamama; he had no
idea about working on American cars, as he had only worked on Japanese cars; he
was sent by his agent Orbit for trade test but failed; and he has no complaints
against his employer and recruiting agent in the K.S.A.; in fact they provided
him full assistance during his stay.[7]
On
February 16, 2000, respondent issued another Statement, which was duly
witnessed by the Secretary of Orbit and noted by Carlos O. Sta. Ana, Assistant
Labor Representative, Consulate General of the Philippines, Jeddah, K.S.A.,
stating that: he was recruited for Al Yamama as Auto
Electrician, but he was not qualified since he had no experience as Auto
Electrician; he was allowed to go for a trade test but failed; he was allowed
to find a new job, but he was not qualified to work in Budget Rent-A-Car
Company & Nissan; he had no complaints against his agent in the K.S.A. or
his Philippine agent, herein petitioner; and respondent requested that he be
sent back to the Philippines as early as possible.[8]
On
P2,000.00 only.
On
In
its Position Paper, petitioner denied that respondent was illegally
dismissed. It alleged that: respondent
admitted that he could not perform his task with Al Yamama;
instead of being dismissed, respondent was allowed to apply with other
companies; unfortunately, he failed the
trade test and was never accepted; respondent voluntarily asked for the
termination of his employment and for his immediate repatriation to the
Philippines in a document he signed in the presence of Assistant Labor
Representative Carlos O. Sta. Ana; from said statement of respondent, there can
be no valid reason to charge petitioner for illegal dismissal; respondent's
termination from his employment was due to his inefficiency which is a just cause
for his dismissal; and respondent's employer did not initiate any action to
terminate his services but allowed him to apply with other companies but he did
not qualify.[10]
On
CONFORMABLY WITH THE FOREGOING, judgment is hereby rendered dismissing the complaint for lack of merit.
Respondents, in solidum are however, ordered to pay complainant's one half month salary in the sum of US$185.00 or its peso equivalent.
SO ORDERED.[12]
The
Labor Arbiter held that there was no illegal dismissal; respondent was ill-equipped to work as an Auto Electrician for
American cars, per his revelation and admission, since he had only worked on
Japanese model cars in his previous employment at Toyota Pasong
Tamo, Inc.; since he was not equal to the challenge
of the work, respondent himself asked to be repatriated, without any complaint
against his foreign employer or agency.
The
Labor Arbiter, however, ordered petitioner to pay respondent US$185.00, or its peso equivalent, for the 15-day
period (
Dissatisfied,
respondent appealed to the NLRC, docketed as NLRC OFW Case No. L-03-0507-2000.[13]
On
On
Respondent
then filed a Petition for Certiorari with the the
CA.[17]
On
WHEREFORE, in view of the foregoing, the petition is partially GRANTED and the assailed Decision dated June 25, 2001 issued by public respondent National Labor Relations Commission (NLRC) as well as the Resolution dated July 17, 2001 in NLRC CA 026624-00 are hereby MODIFIED by ordering private respondents to pay petitioner separation pay equivalent to one (1) month pay for every year of service, his unpaid salary, and his proportionate 13th month pay and, in addition, full backwages from the time his employment was terminated on January 30, 2002 until the expiration of his two-year contract of employment when the decision herein becomes final.
SO ORDERED.[19]
While
the CA held that there was just cause to effect respondent's dismissal, it
found that the dismissal was ineffectual, since it did not comply with the due
process requirements. It held petitioner liable for backwages
from the time respondent was terminated until it is determined that said
termination is for just cause, in accordance with Serrano v. National Labor
Relations Commission.[20]
Petitioner filed a Motion for
Reconsideration[21] but it
was denied by the CA in a Resolution[22]
dated
The sole issue for resolution in the
present petition is: whether respondent was accorded procedural due process
before his separation from work.[23]
The answer is in the negative.
In dismissing an employee, the employer has the burden of
proving that the dismissed worker has been served two notices: (1) the first to
inform the employee of the particular acts or omissions for which the employer
seeks his dismissal; and (2) the second to inform the employee
of his employer’s decision to terminate him.[24]
The first notice must state that the employer seeks dismissal for the act or
omission charged against the employee, otherwise, the notice does not comply
with the rules.[25]
In Maquiling v.
Philippine Tuberculosis Society, Inc.,[26]
the Court held that the first notice must inform the employee outright that an
investigation will be conducted on the charges specified in such notice which,
if proven, will result in the employee’s dismissal. The Court explained the
rationale for this rule, thus:
This notice will afford the employee an opportunity to avail all defenses and exhaust all remedies to refute the allegations hurled against him for what is at stake is his very life and limb his employment. Otherwise, the employee may just disregard the notice as a warning without any disastrous consequence to be anticipated. Absent such statement, the first notice falls short of the requirement of due process. One’s work is everything, thus, it is not too exacting to impose this strict requirement on the part of the employer before the dismissal process be validly effected. This is in consonance with the rule 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.[27]
In the present case, petitioner argues that the purpose of
the written notice requirement was achieved when respondent issued the three
statements where he was given the chance to air his side before his
termination.
The Court disagrees.
Al Yamama failed to satisfy the
two-notice requirement. Without prior notice or explanation, Al Yamama took respondent's passport and simply brought him to
petitioner's foreign principal, Orbit, and told the latter that respondent did
not know his job as electrician. Respondent heard his employer's complaint
against him at that instance only.
From these facts, it is clear that respondent's dismissal was
effected without the notice required by law. Article 277 of the Labor Code
explicitly provides:
ART. 277. Miscellaneous provisions.
x x x (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 and 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. x x x
Section 2, Rule XXIII, Book V of the Omnibus Rules
Implementing the Labor Code, provides:
Section 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:
(a) 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;
(b) 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
(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.
x x x x
The Serrano doctrine[28]
which awarded full backwages in “ineffectual
dismissal cases” where an employee dismissed for cause was denied due process,
which was applied by the CA, has been abandoned by the Court's ruling in Agabon v. National Labor Relations Commission.[29] In that case, the Court held that if the
dismissal was for a cause, the lack of statutory due process should not nullify
the dismissal, or render it illegal or ineffectual. However, the employer’s
violation of the employee’s right to statutory due process warrants the payment
of indemnity[30] 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.[31] The Court ruled in said Agabon
case that it was abandoning the Serrano doctrine in this wise:
After carefully analyzing the consequences of the
divergent doctrines in the law on employment termination, we believe that in
cases involving dismissals for cause but without observance of the twin
requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to follow Wenphil by
holding that the dismissal was for just cause but imposing sanctions on the
employer. Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing
so, this Court would be able to achieve a fair result by dispensing justice not
just to employees, but to employers as well.[32]
Considering the foregoing, the Court deems the amount of P30,000.00 as sufficient nominal
damages, pursuant to prevailing jurisprudence,[33] to vindicate or recognize respondent's right
to procedural due process which was violated by his employer, Al Yamama.
WHEREFORE, the present petition is PARTLY GRANTED. The
Decision dated September 12, 2002 and the Resolution dated January 16, 2003 of
the Court of Appeals in CA-G.R. SP No. 67264 are AFFIRMED with MODIFICATION
in that petitioner Magro Placement and General
Services is ORDERED to pay respondent Cresenciano E.
Hernandez the amount of P30,000.00 as nominal damages for failure to
comply fully with the notice requirement as part of due process, in addition to
payment of respondent's one half month
salary in the sum of US$185.00 or its peso equivalent. No pronouncement as to
costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate
Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V.
Associate Justice 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 Court’s Division.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C
E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s attestation, it is hereby
certified 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
Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Conrado M. Vasquez, Jr. and Regalado E. Maambong, CA rollo, p. 147.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14] Penned by Commissioner Victoriano R. Calaycay and concurred in by Presiding Commissioner Raul T. Aquino and Angelita A. Gacutan, id. at 18.
[15]
[16]
[17]
[18]
[19]
[20] 387 Phil. 345, 356 (2000).
[21] CA rollo, p. 177.
[22]
[23] Rollo, p. 218.
[24] Challenge Socks Corporation v. Court of Appeals, G.R. No. 165268, November 8, 2005, 474 SCRA 356, 363-364; Manly Express, Inc. v. Payong, Jr., G.R. No. 167462, October 25, 2005, 474 SCRA 323, 330.
[25] Manly Express, Inc. v. Payong, Jr., id.; Electro System Industries Corporation v. National Labor Relations Commission, G.R. No. 165282, October 5, 2005, 472 SCRA 199, 203; Tan v. National Labor Relations Commission, 359 Phil. 499, 516 (1998).
[26] G.R. No. 143384,
[27]
[28] Supra note 20.
[29] G.R. No. 158693,
[30] See Garcia v. National Labor Relations Commission, 327 Phil. 648, 652 (1996).
[31] Agabon v. National Labor Relations Commission, supra note 29, at 617.
[32]
[33] Philemploy Services and Resources, Inc. v. Rodriguez, G.R. No. 152616, March 31, 2006, 486 SCRA 302, 318; Durban Apartments Corporation v. Catacutan, G.R. No. 167136, December 14, 2005, 477 SCRA 801, 811, Amadeo Fishing Corporation v. Nierra, G.R. No. 163099, October 4, 2005, 472 SCRA 13, 35; Central Luzon Conference Corporation of Seventh-Day Adventist Church, Inc. v. Court of Appeals, G.R. No. 161976, August 12, 2005, 466 SCRA 711, 713; Caingat v. National Labor Relations Commission, G.R. No. 154308, March 10, 2005, 453 SCRA 142, 155.