Republic of the
SUPREME COURT
G.R.
No. 166211 - Asian Terminals, Inc. v. Nepthally B. Sallao and Asian Terminals,
Inc. (Mariveles) Workers’ Union
x-----------------------------------------------------------------------------------------x
SEPARATE CONCURRING OPINION
VELASCO, JR., J.
I
concur with the well-written ponencia
of my esteemed colleague. However, I
would like to register my observations in relation to the statement that “with
regard to the requirement of a hearing, the essence of due process lies simply
in an opportunity to be heard, and not that of an actual hearing should always
and indispensably be held.”[1] Moreover, elucidation is needed on the
concluding statement that “even if no face-to-face hearing was conducted, the
requirement of due process had been met since he was accorded a chance to
explain his side of the controversy.”
The aforementioned conclusions are
correct when applied to the instant case.
While no hearing or conference was conducted by petitioner Asian
Terminals, Inc. in September 1998 when the administrative proceedings were held
against respondent Sallao, the absence thereof does not constitute a breach of
the procedural due process for such was the settled jurisprudence as enunciated
in MBTC v. Barrientos, G.R. No.
157028, Jan. 31, 2006, 481 SCRA 311 and other related cases.
However,
on
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, procedural – the
manner of dismissal. 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
(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:
1.
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 with 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.
In case of termination, the foregoing
notices shall be served on the employee’s last known address.
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. 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. 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.” 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.”
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, 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, the Court, sanctioning the
employer for disregarding the due process requirements, held that the
employee’s written explanation did not excuse the fact that there was a
complete absence of the first notice.
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, KKTI’s “standard” charge sheet is not
sufficient notice to the employee.
Third, no hearing was conducted.
Regardless of respondent’s 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
Article 277 of the Labor Code speaks
of a “written notice containing a
statement of the causes for termination and shall afford the [employee]
ample opportunity to be heard and defend himself with the assistance of his
representative”. The Court, in the Metrobank (MBTC) case, gave such
provision a myopic and restrictive interpretation which appears off-tangent to
the constitutional protection to labor.
This strict interpretation was discarded in King of Kings Transport for the following reasons:
1.
The first written notice
containing the charges does not encompass the 2nd requisite of
opportunity to be heard. Note should be
taken of the conjunctive “and” which means that the written notice should be
distinct from the opportunity to be heard.
While it may be conceded that the first notice gives the employee
reasonable opportunity to explain his side, such does not cover the 2nd
requisite of ample opportunity to be heard and defend himself with the
assistance of his representative which will necessitate the conduct of a
hearing or conference to give the laborer the chance to respond to the charge,
present evidence or rebut the evidence presented against him. “Ample” means full and more than adequate
chances to be heard and defend himself against the charges leveled on him. Without the hearing or conference, the
written reply or answer to the first notice is insufficient to fully explain
and support his defenses, present evidence in support of his defenses due to
time constraints in the preparation of the answer and rebut the evidence of the
employer since the first notice does not usually contain the evidence intended
to support the charges. In addition, the
employee’s counsel or representative can better articulate his defenses in an
actual hearing than by just merely relying on a written reply or answer.
2. The Secretary of Labor is given the power to
promulgate rules and regulations to implement the Labor Code. Pursuant to such rule-making power, he
approved the Omnibus Rules Implementing the Labor Code which provides in part:
Sec. 2. Standards of due process, requirements of notice.—
x x
x x
I.
x x
x x
(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.[3]
Any rule or regulation in the
implementation of a law issued by the rule-making authority has the force and
effect of law.[4]
3. The constitutional provisions on protection
to labor and social justice dictate that a liberal interpretation be accorded Article
277 of the Labor Code on the requirement giving an employee ample opportunity
to be heard and defend himself.
Thus, I submit
that effective
PRESBITERO J. VELASCO, JR.