SECOND DIVISION
G.R. No.
156766 (
Promulgated:
April 16, 2009
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C O N C U R R I N G and
D I S S E N T I N G O P I N I O N
VELASCO, JR., J.:
Insofar
as the existence of a valid cause for the dismissal of petitioner Rosario Gatus
is concerned, I concur with the ponencia of my esteemed colleague. I, however,
would like to take exception to the conclusion that petitioner was not denied
due process in the consideration of her
dismissal, she having been given the opportunity to be heard when “the company
asked her to explain her side vis-à-vis
the principal charge against her––her involvement in the [mauling] incident of
June 30, 1997.”[1]
As can be gathered from the ponencia,
on July 1, 1997, respondent company placed petitioner under preventive
suspension pending an investigation on the June 30 incident referred to, where
she allegedly urged her husband to continue hitting her co-employee, one Nilo Echavez.
On the very day she received the preventive suspension notice, petitioner
submitted her explanation. Following petitioner’s filing of a complaint for
illegal suspension––later amended to cover illegal dismissal––the company, via
a memorandum of July 9, 1997, terminated petitioner’s employment without a
formal hearing.
My
dissent revolves around only on this main issue: Was Gatus, before her
dismissal, entitled to a formal hearing or conference as mandated by the
Implementing Rules and Regulations (IRR) of Book V of the Labor Code?
The
ponencia answered the poser in the
negative. As there held, Article 277(b)
of the Labor Code merely requires the
employer to provide an employee with ample opportunity to be heard, which in
turn means the chance to explain one’s side. The ponencia would seem to suggest
that Section 2(b), Rule XXIII of the IRR of V of the Code,[2] by requiring a formal hearing, went beyond
the terms and provisions of the Labor Code.
With
due respect, I beg to disagree with the ponencia’s
resolution of this issue for the following reasons:
(1) Art.
277(b) of the Labor Code provides that:
(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. 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 xxx [before] the [NLRC]. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. (Emphasis supplied.)
As
I articulated in my concurring and dissenting opinions in a similar case,[3]
Art. 277(b) makes reference to according workers “ample opportunity to be heard
and defend themselves,” but without going into specifics as to what would
constitute “ample opportunity.” On the
postulate, however, that all reasonable doubts in the interpretation of labor
laws should be resolved in favor of labor,[4] the words “ample opportunity” should be given
a liberal construction as would advance the rights of workers. Webster defines
“ample” as “considerably more than adequate or sufficient; marked by more than
adequate measure of strength, force, effectiveness or influence.”[5] In the context of Art. 277(b) of the Code,
“ample opportunity” connotes any kind of assistance that management must accord
the employee to enable him to prepare adequately for his defense, including
legal representation,[6]
irresistibly suggesting that ample opportunity very well covers actual hearing
or conference. To put it a bit
differently, opportunity to be heard does not exclude an actual or formal
hearing since such requirement would grant more than sufficient chance for an
employee to be heard and adduce evidence.
In this sense, the perceived discrepancy between Art. 277(b) and the IRR
in question is more imagined than real and definitely not irreconcilable.
It is true that Art. 277(b) speaks only of ample
opportunity to be heard, not “actual hearing.” But as earlier discussed, if not
implied, the requisite hearing is subsumed in the phrase “ample opportunity to
be heard and to defend himself with the assistance of his representative if he
so desires.” Even if the term “actual
hearing” is not used in Art. 277(b), the same thing is true as regards the
second written notice informing the employee of the employer’s decision which
is likewise unclear in said provision.
Thus, the reality that Art. 277(b) does not expressly mention actual
hearing is not, without more, a legal impediment for the Department of Labor
and Employment (DOLE) Secretary issuing a rule (Sec. 2[d][ii], Rule I,
Implementing Rules of Book VI of the Labor Code) implementing the provision
that what really is contemplated is an actual hearing or conference. It cannot
be overemphasized that the Secretary of Labor likewise issued a rule on the
need for a second written notice on the decision rendered in illegal dismissal
proceedings notwithstanding the glaring silence
of Art. 277(b) on the need for a written notice of the employer’s/management’s decision.
(2) As
earlier indicated and as Art. 4 of the Labor Code no less states, all doubts in the
implementation and interpretation of the provisions of the Code, including its
IRR, shall be resolved in favor of labor. Since the
Code itself invests the DOLE the quasi-legislative power to issue rules and
regulations to set the standard guidelines for the realization of the
provision, then the IRR should be liberally construed to favor workers.
The IRR, being a result of such rule-making authority, has the force and effect
of a statute. It bears to stress that Art.
277 of the Code granted the DOLE the authority to develop the guidelines to
enforce the process. It is obviously pursuant
to this mandate that the DOLE formulated the ensuing Rule I, Sec. 2(d) of the
Implementing Rules of Book VI of the Labor Code prescribing due procedural
standards in termination cases:
(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:
For termination of employment based on just causes 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 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 he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.
(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.
The
standards of due process embodied in Sec. 2(b), Rule XXIII, Implementing Rules
of Book V of the Labor Code, and now in Sec. 2(d)(ii), Rule I, Implementing
Rules of Books VI of the Labor Code, do not go beyond the terms of the Labor
Code. If at all, the IRR assumes a
clarificatory function, encapsulating, as it were, a rather abstract concept
into a concrete idea. Indeed, under what
adjudicatory setting can an employer best accord employees with an ample
opportunity to be heard and defend themselves with the assistance of a
representative than in a formal hearing or conference which the IRR provides? It is in that scenario that the playing field
becomes even, where the employees are at least given a reasonable chance to
respond to the charges made against them, present their evidence in chief, or rebut
evidence in a formal hearing or conference.
Therefore, in my humble opinion, there is no discrepancy between the law
and the rules implementing the Labor Code.
(3)
Denying the employees of their right
to a hearing in a termination case would necessarily deny them the opportunity
to belie the inculpatory allegations made in the first notice and prove their
innocence, if that be the case. Notice
can be taken of the limited opportunity given to the employees by the directive
in the first written notice that embodies the charges. As it usually happens, the directive allows them,
within a fixed limited period, just to explain their side, a veritable
show-cause routine, but without the right to present evidence. Moreover, a hearing gives employees a lead
time to secure expert legal advice to brief him of his rights and obligations
under, and the intricacies of, the law.
A mere first notice is not adequate enough for employees to collate and
sift evidence for their defense. Most
often, the first notice merely serves as or is limited to a general notice
which cites the company rules breached, without detailing the facts and
circumstances relevant to the charges and without appending the pieces of supporting
evidence. Lastly, the holding of an
actual hearing will obviate the obnoxious practice of railroaded dismissals, as
the employers would be compelled present convincing evidence to support the
charges. In all, the advantages far outweigh the disadvantages in holding an
actual hearing.
(4)
On the practical viewpoint, a hearing
affords both the employer and the employee the opportunity to address minor
irritants and settle any misunderstanding via the use of alternative
dispute resolution to avoid the filing of labor relation cases. It is important that a hearing is prescribed
by the law since this is the most opportune time for discussing amicable
settlement. Relations between the
parties may still be cordial, and the likelihood of a compromise is high during
the hearing stage. Once a termination order
issues, the possibility of an amicable settlement is almost nil owing to the
ill-feelings engendered by the dismissal proceedings. Thus, a hearing can most
certainly assist the parties come up with an out-of-court settlement which
would be less expensive, creating a “win-win” situation for them.
(5) Last, but not
least, a liberal interpretation of Art. 277(b) of the Labor Code would hew with
the prescription of Art. XIII of the Constitution on full protection to labor
and the promotion of social justice, a basic postulate that “those who have
less in life must have more in law.”
Social justice commands that the State, as parens patriae, and guardian of the general welfare of the people, afford
protection to the needy and the less fortunate members of society, meaning the
working class. This command becomes all
the more urgent in labor cases where security of tenure is an integral issue. The Court said so in Rance v. NLRC, where we declared:
It is the policy of the state to assure the right of workers to “security of tenure” x x x. The guarantee is an act of social justice. When a person has no property, his job may possibly be his only possession or means of livelihood. Therefore, he should be protected against any arbitrary deprivation of his job. Article 280 of the Labor Code has construed security of tenure as meaning that “the employer shall not terminate the services of an employee except for a just cause or when authorized by” the code x x x. Dismissal is not justified for being arbitrary where the workers were denied due process x x x and a clear denial of due process, or constitutional right must be safeguarded against at all times.[7] x x x (Citations omitted.)
In
the normal course of an employer-employee relationship, the latter is
oftentimes on the disadvantage or inferior position. Without the mandatory
requirement of a hearing, employees may be unjustly terminated from their work,
effectively depriving them from their usual means of livelihood. One’s right to his work is a property right
well within the context of the constitutional guarantee[8]
against depriving one of property without due process.
The
Court, to be sure, has applied the imperatives of social justice even to instances
of justifiable termination by granting equitable relief to the erring
employees. We also termed social justice as “compassionate” justice.[9] As it were, poverty and gross inequality are
among the underlying major problems of the country. Given this postulate, laws
and procedures which have the aim of alleviating those problems should be
liberally construed and interpreted in favor of the underprivileged. Thus, the
Labor Code should receive a liberal interpretation as to attain its lofty purpose.[10]
That should have been the case here.
PRESBITERO
J. VELASCO, JR.
Associate Justice
[1] Ponencia, p. 11.
[2] Now only Sec. 2(d)(ii), Rule I, Implementing Rules of Book VI of the Labor Code remains, as amended by Department Order No. 40-03, Series of 2003.
[3] Perez
v. PT &T, G.R. No. 152048, April 7, 2008.
[4] IPI v. Sec. of Labor, G.R. Nos.
92181-83,
[6] Balayan Colleges v. NLRC, 255 SCRA 1; Manebo v, NLRC, 229 SCAD 240.