labor- agabon v. nlrc

8/12/2019 Labor- Agabon v. NLRC

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EIGHT HUNDRED TWENTY EIGHT & 93/100 (P123,828.93) Pesos for VirgilioAgabon, as per attached computation of Julieta C. Nicolas, OIC, Researchand Computation Unit, NCR.

SO ORDERED. 4

On appeal, the NLRC reversed the Labor Arbiter because it found that the petitionershad abandoned their work, and were not entitled to backwages and separation pay.

The other money claims awarded by the Labor Arbiter were also denied for lack ofevidence. 5

Upon denial of their motion for reconsideration, petitioners filed a petition forcertiorariwith the Court of Appeals.

The Court of Appeals in turn ruled that the dismissal of the petitioners was notillegal because they had abandoned their employment but ordered the payment ofmoney claims. The dispositive portion of the decision reads:

WHEREFORE, the decision of the National Labor Relations Commission is

REVERSED only insofar as it dismissed petitioner's money claims. Privaterespondents are ordered to pay petitioners holiday pay for four (4) regularholidays in 1996, 1997, and 1998, as well as their service incentive leave payfor said years, and to pay the balance of petitioner Virgilio Agabon's 13thmonth pay for 1998 in the amount of P2,150.00. aIcCTA

SO ORDERED. 6

Hence, this petition for review on the sole issue of whether petitioners were illegallydismissed. 7

Petitioners assert that they were dismissed because the private respondent refusedto give them assignments unless they agreed to work on a "pakyaw" basis whenthey reported for duty on February 23, 1999. They did not agree on thisarrangement because it would mean losing benefits as Social Security System (SSS)members. Petitioners also claim that private respondent did not comply with thetwin requirements of notice and hearing. 8

Private respondent, on the other hand, maintained that petitioners were notdismissed but had abandoned their work. 9In fact, private respondent sent twoletters to the last known addresses of the petitioners advising them to report for

work. Private respondent's manager even talked to petitioner Virgilio Agabon bytelephone sometime in June 1999 to tell him about the new assignment at PacificPlaza Towers involving 40,000 square meters of cornice installation work. However,petitioners did not report for work because they had subcontracted to performinstallation work for another company. Petitioners also demanded for an increase intheir wage to P280.00 per day. When this was not granted, petitioners stoppedreporting for work and filed the illegal dismissal case. 10

It is well-settled that findings of fact of quasi-judicial agencies like the NLRC areaccorded not only respect but even finality if the findings are supported by


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substantial evidence. This is especially so when such findings were affirmed by theCourt of Appeals. 11However, if the factual findings of the NLRC and the LaborArbiter are conflicting, as in this case, the reviewing court may delve into therecords and examine for itself the questioned findings. 12

Accordingly, the Court of Appeals, after a careful review of the facts, ruled thatpetitioners' dismissal was for a just cause. They had abandoned their employmentand were already working for another employer.

To dismiss an employee, the law requires not only the existence of a just and validcause but also enjoins the employer to give the employee the opportunity to beheard and to defend himself. 13Article 282 of the Labor Code enumerates the justcauses for termination by the employer: (a) serious misconduct or willfuldisobedience by the employee of the lawful orders of his employer or the latter'srepresentative in connection with the employee's work; (b) gross and habitualneglect by the employee of his duties; (c) fraud or willful breach by the employee ofthe trust reposed in him by his employer or his duly authorized representative; (d)commission of a crime or offense by the employee against the person of his

employer or any immediate member of his family or his duly authorizedrepresentative; and (e) other causes analogous to the foregoing.

Abandonment is the deliberate and unjustified refusal of an employee to resume hisemployment. 14It is a form of neglect of duty, hence, a just cause for termination ofemployment by the employer. 15For a valid finding of abandonment, these twofactors should be present: (1) the failure to report for work or absence without validor justifiable reason; and (2) a clear intention to sever employer-employeerelationship, with the second as the more determinative factor which is manifestedby overt acts from which it may be deduced that the employees has no more

intention to work. The intent to discontinue the employment must be shown byclear proof that it was deliberate and unjustified. 16

In February 1999, petitioners were frequently absent having subcontracted for aninstallation work for another company. Subcontracting for another company clearlyshowed the intention to sever the employer-employee relationship with privaterespondent. This was not the first time they did this. In January 1996, they did notreport for work because they were working for another company. Privaterespondent at that time warned petitioners that they would be dismissed if thishappened again. Petitioners disregarded the warning and exhibited a clear intention

to sever their employer-employee relationship. The record of an employee is arelevant consideration in determining the penalty that should be meted out to him.17

In Sandoval Shipyard v. Clave, 18we held that an employee who deliberatelyabsented from work without leave or permission from his employer, for the purposeof looking for a job elsewhere, is considered to have abandoned his job. We shouldapply that rule with more reason here where petitioners were absent because theywere already working in another company.

The law imposes many obligations on the employer such as providing just


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compensation to workers, observance of the procedural requirements of notice andhearing in the termination of employment. On the other hand, the law alsorecognizes the right of the employer to expect from its workers not only goodperformance, adequate work and diligence, but also good conduct 19and loyalty.

The employer may not be compelled to continue to employ such persons whosecontinuance in the service will patently be inimical to his interests. 20

After establishing that the terminations were for a just and valid cause, we now

determine if the procedures for dismissal were observed.

The procedure for terminating an employee is found in Book VI, Rule I, Section 2(d)of the Omnibus Rules Implementing the Labor Code:

Standards of due process:requirements of notice. In all cases oftermination of employment, the following standards of due process shall besubstantially observed:

I. For termination of employment based on just causes as defined inArticle 282 of the Code:

(a) A written notice served on the employee specifying the ground orgrounds for termination, and giving to said employee reasonable opportunitywithin which to explain his side; CaEATI

(b) A hearing or conference during which the employee concerned, withthe assistance of counsel if the employee so desires, is given opportunity torespond to the charge, present his evidence or rebut the evidencepresented against him; and

(c) A written notice of termination served on the employee indicating thatupon due consideration of all the circumstances, grounds have beenestablished to justify his termination.

In case of termination, the foregoing notices shall be served on theemployee's last known address.

Dismissals based on just causes contemplate acts or omissions attributable to theemployee while dismissals based on authorized causes involve grounds under theLabor Code which allow the employer to terminate employees. A termination for anauthorized cause requires payment of separation pay. When the termination of

employment is declared illegal, reinstatement and full backwages are mandatedunder Article 279. If reinstatement is no longer possible where the dismissal wasunjust, separation pay may be granted.

Procedurally, (1) if the dismissal is based on a just cause under Article 282, theemployer must give the employee two written notices and a hearing or opportunityto be heard if requested by the employee before terminating the employment: anotice specifying the grounds for which dismissal is sought a hearing or an


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opportunity to be heard and after hearing or opportunity to be heard, a notice of thedecision to dismiss; and (2) if the dismissal is based on authorized causes underArticles 283 and 284, the employer must give the employee and the Department ofLabor and Employment written notices 30 days prior to the effectivity of hisseparation.

From the foregoing rules four possible situations may be derived: (1) the dismissal isfor a just cause under Article 282 of the Labor Code, for an authorized cause under

Article 283, or for health reasons under Article 284, and due process was observed;(2) the dismissal is without just or authorized cause but due process was observed;(3) the dismissal is without just or authorized cause and there was no due process;and (4) the dismissal is for just or authorized cause but due process was notobserved.

In the first situation, the dismissal is undoubtedly valid and the employer will notsuffer any liability.

In the second and third situations where the dismissals are illegal, Article 279

mandates that the employee is entitled to reinstatement without loss of seniorityrights and other privileges and full backwages, inclusive of allowances, and otherbenefits or their monetary equivalent computed from the time the compensationwas not paid up to the time of actual reinstatement.

In the fourth situation, the dismissal should be upheld. While the proceduralinfirmity cannot be cured, it should not invalidate the dismissal. However, theemployer should be held liable for non-compliance with the proceduralrequirements of due process.

The present case squarely falls under the fourth situation. The dismissal should beupheld because it was established that the petitioners abandoned their jobs to workfor another company. Private respondent, however, did not follow the noticerequirements and instead argued that sending notices to the last known addresseswould have been useless because they did not reside there anymore. Unfortunatelyfor the private respondent, this is not a valid excuse because the law mandates thetwin notice requirements to the employee's last known address. 21Thus, it shouldbe held liable for non-compliance with the procedural requirements of due process.

A review and re-examination of the relevant legal principles is appropriate andtimely to clarify the various rulings on employment termination in the light ofSerrano v. National Labor Relations Commission. 22

Prior to 1989, the rule was that a dismissal or termination is illegal if the employeewas not given any notice. In the 1989 case of Wenphil Corp. v. National LaborRelations Commission, 23we reversed this long-standing rule and held that thedismissed employee, although not given any notice and hearing, was not entitled toreinstatement and backwages because the dismissal was for grave misconduct andinsubordination, a just ground for termination under Article 282. The employee hada violent temper and caused trouble during office hours, defying superiors who triedto pacify him. We concluded that reinstating the employee and awarding backwages


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"may encourage him to do even worse and will render a mockery of the rules ofdiscipline that employees are required to observe." 24We further held that:

Under the circumstances, the dismissal of the private respondent for justcause should be maintained. He has no right to return to his formeremployment.

However, the petitioner must nevertheless be held to account for failure to

extend to private respondent his right to an investigation before causing hisdismissal. The rule is explicit as above discussed. The dismissal of anemployee must befor just or authorized cause and after due process.Petitioner committed an infraction of the second requirement. Thus, it mustbe imposed a sanction for its failure to give a formal notice and conduct aninvestigation as required by law before dismissing petitioner fromemployment. Considering the circumstances of this case petitioner mustindemnify the private respondent the amount of P1,000.00. The measure ofthis award depends on the facts of each case and the gravity of theomission committed by the employer. 25

The rule thus evolved: where the employer had a valid reason to dismiss anemployee but did not follow the due process requirement, the dismissal may beupheld but the employer will be penalized to pay an indemnity to the employee.

This became known as the Wenphilor Belated Due Process Rule. AcIaST

On January 27, 2000, in Serrano, the rule on the extent of the sanction waschanged. We held that the violation by the employer of the notice requirement intermination for just or authorized causes was not a denial of due process that willnullify the termination. However, the dismissal is ineffectual and the employermust pay full backwages from the time of termination until it is judicially declared

that the dismissal was for a just or authorized cause.

The rationale for the re-examination of the Wenphildoctrine in Serranowas thesignificant number of cases involving dismissals without requisite notices. Weconcluded that the imposition of penalty by way of damages for violation of thenotice requirement was not serving as a deterrent. Hence, we now requiredpayment of full backwages from the time of dismissal until the time the Court findsthe dismissal was for a just or authorized cause.

Serranowas confronting the practice of employers to "dismiss now and pay later" by

imposing full backwages.

We believe, however, that the ruling in Serranodid not consider the full meaning ofArticle 279 of the Labor Code which states:

ART. 279. Security of Tenure. In cases of regular employment, theemployer shall not terminate the services of an employee except for a justcause or when authorized by this Title. An employee who is unjustlydismissed from work shall be entitled to reinstatement without loss ofseniority rights and other privileges and to his full backwages, inclusive ofallowances, and to his other benefits or their monetary equivalent computed


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from the time his compensation was withheld from him up to the time of hisactual reinstatement.

This means that the termination is illegal only if it is not for any of the justified orauthorized causes provided by law. Payment of backwages and other benefits,including reinstatement, is justified only if the employee was unjustly dismissed.

The fact that the Serranoruling can cause unfairness and injustice which elicited

strong dissent has prompted us to revisit the doctrine.

To be sure, the Due Process Clause in Article III, Section 1 of the Constitutionembodies a system of rights based on moral principles so deeply imbedded in thetraditions and feelings of our people as to be deemed fundamental to a civilizedsociety as conceived by our entire history. Due process is that which comports withthe deepest notions of what is fair and right and just. 26It is a constitutionalrestraint on the legislative as well as on the executive and judicial powers of thegovernment provided by the Bill of Rights.

Due process under the Labor Code, like Constitutional due process, has two aspects:substantive, i.e., the valid and authorized causes of employment termination underthe Labor Code; and procedural, i.e., the manner of dismissal. Procedural dueprocess requirements for dismissal are found in the Implementing Rules of P.D. 442,as amended, otherwise known as the Labor Code of the Philippines in Book VI, RuleI, Sec. 2, as amended by Department Order Nos. 9 and 10. 27Breaches of these dueprocessrequirements violate the Labor Code. Therefore statutory due processshould be differentiated from failure to comply with constitutional due process.

Constitutional due processprotects the individual from the government and assureshim of his rights in criminal, civil or administrative proceedings; while statutory dueprocessfound in the Labor Code and Implementing Rules protects employees frombeing unjustly terminated without just cause after notice and hearing.

In Sebuguero v. National Labor Relations Commission, 28the dismissal was for ajust and valid cause but the employee was not accorded due process. The dismissalwas upheld by the Court but the employer was sanctioned. The sanction should bein the nature of indemnification or penalty, and depends on the facts of each caseand the gravity of the omission committed by the employer.

In Nath v. National Labor Relations Commission, 29it was ruled that even if the

employee was not given due process, the failure did not operate to eradicate thejust causes for dismissal. The dismissal being for just cause, albeitwithout dueprocess, did not entitle the employee to reinstatement, backwages, damages andattorney's fees.

Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services, Inc. v.National Labor Relations Commission, 30which opinion he reiterated in Serrano,stated:

C. Where there is just cause for dismissal but due process has not been


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properly observed by an employer, it would not be right to order either thereinstatement of the dismissed employee or the payment of backwages tohim. In failing, however, to comply with the procedure prescribed by law interminating the services of the employee, the employer must be deemed tohave opted or, in any case, should be made liable, for the payment ofseparation pay. It might be pointed out that the notice to be given and thehearing to be conducted generally constitute the two-part due processrequirement of law to be accorded to the employee by the employer.

Nevertheless, peculiar circumstances might obtain in certain situationswhere to undertake the above steps would be no more than a uselessformality and where, accordingly, it would not be imprudent to apply the resipsa loquiturrule and award, in lieu of separation pay, nominal damages tothe employee. . . . 31

After carefully analyzing the consequences of the divergent doctrines in the law onemployment termination, we believe that in cases involving dismissals for cause butwithout observance of the twin requirements of notice and hearing, the better ruleis to abandon the Serranodoctrine and to follow Wenphilby holding that thedismissal was for just cause but imposing sanctions on the employer. Suchsanctions, however, must be stiffer than that imposed in Wenphil. By doing so, thisCourt would be able to achieve a fair result by dispensing justice not just toemployees, but to employers as well. DTAHEC

The unfairness of declaring illegal or ineffectual dismissals for valid or authorizedcauses but not complying with statutory due process may have far-reachingconsequences.

This would encourage frivolous suits, where even the most notorious violators ofcompany policy are rewarded by invoking due process. This also creates absurdsituations where there is a just or authorized cause for dismissal but a proceduralinfirmity invalidates the termination. Let us take for example a case where theemployee is caught stealing or threatens the lives of his co-employees or hasbecome a criminal, who has fled and cannot be found, or where serious businesslosses demand that operations be ceased in less than a month. Invalidating thedismissal would not serve public interest. It could also discourage investments thatcan generate employment in the local economy.

The constitutional policy to provide full protection to labor is not meant to be asword to oppress employers. The commitment of this Court to the cause of labordoes not prevent us from sustaining the employer when it is in the right, as in thiscase. 32Certainly, an employer should not be compelled to pay employees for worknot actually performed and in fact abandoned.

The employer should not be compelled to continue employing a person who isadmittedly guilty of misfeasance or malfeasance and whose continued employmentis patently inimical to the employer. The law protecting the rights of the laborerauthorizes neither oppression nor self-destruction of the employer. 33


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It must be stressed that in the present case, the petitioners committed a graveoffense, i.e., abandonment, which, if the requirements of due process were compliedwith, would undoubtedly result in a valid dismissal.

An employee who is clearly guilty of conduct violative of Article 282 should not beprotected by the Social Justice Clause of the Constitution. Social justice, as the termsuggests, should be used only to correct an injustice. As the eminent Justice Jose P.Laurel observed, social justice must be founded on the recognition of the necessity

of interdependence among diverse units of a society and of the protection thatshould be equally and evenly extended to all groups as a combined force in oursocial and economic life, consistent with the fundamental and paramount objectiveof the state of promoting the health, comfort, and quiet of all persons, and ofbringing about "the greatest good to the greatest number." 34

This is not to say that the Court was wrong when it ruled the way it did in Wenphil,Serrano and related cases. Social justice is not based on rigid formulas set in stone.It has to allow for changing times and circumstances.

Justice Isagani Cruz strongly asserts the need to apply a balanced approach to labor-management relations and dispense justice with an even hand in every case:

We have repeatedly stressed that social justice or any justice for thatmatter is for the deserving, whether he be a millionaire in his mansion or apauper in his hovel. It is true that, in case of reasonable doubt, we are to tiltthe balance in favor of the poor to whom the Constitution fittingly extendsits sympathy and compassion. But never is it justified to give preference tothe poor simply because they are poor, or reject the rich simply becausethey are rich, for justice must always be served for the poor and the richalike, according to the mandate of the law. 35

Justice in every case should only be for the deserving party. It should not bepresumed that every case of illegal dismissal would automatically be decided infavor of labor, as management has rights that should be fully respected andenforced by this Court. As interdependent and indispensable partners in nation-building, labor and management need each other to foster productivity andeconomic growth; hence, the need to weigh and balance the rights and welfare ofboth the employee and employer.

Where the dismissal is for a just cause, as in the instant case, the lack of statutory

due process should not nullify the dismissal, or render it illegal, or ineffectual.However, the employer should indemnify the employee for the violation of hisstatutory rights, as ruled in Reta v. National Labor Relations Commission. 36Theindemnity to be imposed should be stiffer to discourage the abhorrent practice of"dismiss now, pay later," which we sought to deter in the Serranoruling. Thesanction should be in the nature of indemnification or penalty and should depend onthe facts of each case, taking into special consideration the gravity of the dueprocess violation of the employer.

Under the Civil Code, nominal damages is adjudicated in order that a right of the


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plaintiff, which has been violated or invaded by the defendant, may be vindicated orrecognized, and not for the purpose of indemnifying the plaintiff for any losssuffered by him. 37

As enunciated by this Court in Viernes v. National Labor Relations Commissions, 38

an employer is liable to pay indemnity in the form of nominal damages to anemployee who has been dismissed if, in effecting such dismissal, the employer failsto comply with the requirements of due process. The Court, after considering the

circumstances therein, fixed the indemnity at P2,590.50, which was equivalent tothe employee's one month salary. This indemnity is intended not to penalize theemployer but to vindicate or recognize the employee's right to statutory due processwhich was violated by the employer. 39

The violation of the petitioners' right to statutory due process by the privaterespondent warrants the payment of indemnity 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. 40Considering the prevailingcircumstances in the case at bar, we deem it proper to fix it at P30,000.00. We

believe this form of damages would serve to deter employers from future violationsof the statutory due process rights of employees. At the very least, it provides avindication or recognition of this fundamental right granted to the latter under theLabor Code and its Implementing Rules.

Private respondent claims that the Court of Appeals erred in holding that it failed topay petitioners' holiday pay, service incentive leave pay and 13th month pay.

We are not persuaded.

We affirm the ruling of the appellate court on petitioners' money claims. Privaterespondent is liable for petitioners' holiday pay, service incentive leave pay and13th month pay without deductions.

As a general rule, one who pleads payment has the burden of proving it. Evenwhere the employee must allege non-payment, the general rule is that the burdenrests on the employer to prove payment, rather than on the employee to prove non-payment. The reason for the rule is that the pertinent personnel files, payrolls,records, remittances and other similar documents which will show that overtime,differentials, service incentive leave and other claims of workers have been paid are not in the possession of the worker but in the custody and absolute control ofthe employer. 41

In the case at bar, if private respondent indeed paid petitioners' holiday pay andservice incentive leave pay, it could have easily presented documentary proofs ofsuch monetary benefits to disprove the claims of the petitioners. But it did not,except with respect to the 13th month pay wherein it presented cash vouchersshowing payments of the benefit in the years disputed. 42Allegations by privaterespondent that it does not operate during holidays and that it allows its employees10 days leave with pay, other than being self-serving, do not constitute proof ofpayment. Consequently, it failed to discharge the onus probandithereby making it


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liable for such claims to the petitioners.

Anent the deduction of SSS loan and the value of the shoes from petitioner VirgilioAgabon's 13th month pay, we find the same to be unauthorized. The evidentintention of Presidential Decree No. 851 is to grant an additional incomein the formof the 13th month pay to employees not already receiving the same 43so as "tofurther protect the level of real wages from the ravages of world-wide inflation." 44

Clearly, as additional income, the 13th month pay is included in the definition of

wage under Article 97(f) of the Labor Code, to wit:

(f) "Wage" paid to any employee shall mean the remuneration orearnings, however designated, capable of being expressed in terms ofmoney whether fixed or ascertained on a time, task, piece, or commissionbasis, or other method of calculating the same, which is payable by anemployer to an employee under a written or unwritten contract ofemployment for work done or to be done, or for services rendered or to berendered and includes the fair and reasonable value, as determined by theSecretary of Labor, of board, lodging, or other facilities customarily

furnished by the employer to the employee. . . ."

from which an employer is prohibited under Article 113 45of the same Code frommaking any deductions without the employee's knowledge and consent. In theinstant case, private respondent failed to show that the deduction of the SSSloan and the value of the shoes from petitioner Virgilio Agabon's 13th month paywas authorized by the latter. The lack of authority to deduct is further bolsteredby the fact that petitioner Virgilio Agabon included the same as one of his moneyclaims against private respondent. STCDaI

The Court of Appeals properly reinstated the monetary claims awarded by the LaborArbiter ordering the private respondent to pay each of the petitioners holiday payfor four regular holidays from 1996 to 1998, in the amount of P6,520.00, serviceincentive leave pay for the same period in the amount of P3,255.00 and the balanceof Virgilio Agabon's thirteenth month pay for 1998 in the amount of P2,150.00.

WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of theCourt of Appeals dated January 23, 2003, in CA-G.R. SP No. 63017, finding thatpetitioners' Jenny and Virgilio Agabon abandoned their work, and ordering privaterespondent to pay each of the petitioners holiday pay for four regular holidays from

1996 to 1998, in the amount of P6,520.00, service incentive leave pay for the sameperiod in the amount of P3,255.00 and the balance of Virgilio Agabon's thirteenthmonth pay for 1998 in the amount of P2,150.00 is AFFIRMED with theMODIFICATION that private respondent Riviera Home Improvements, Inc. is furtherORDERED to pay each of the petitioners the amount of P30,000.00 as nominaldamages for non-compliance with statutory due process.

No costs.

SO ORDERED.


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Quisumbing, Carpio, Carpio-Morales, Callejo, Sr.and Azcuna, JJ ., concur.

Davide, Jr., C .J ., I join Mr. Justice Puno in his dissenting opinion.

Puno and Panganiban, JJ ., See dissenting opinion.

Sandoval-Gutierrez, J ., I join Justice Puno in his dissent.

Austria-Martinez, J ., I join in the separate opinion of Justice Tinga.Corona, J ., is on leave.

Tinga, J ., In the result, per separate opinion.

Chico-Nazario, J ., I concur in J. Puno's dissenting opinion.

Garcia, J ., I join J . Puno's dissenting opinion.

PUNO,J.,dissenting:

"Strike if you will, but hear me first!" was adjuration of Themistocles, c. 528462B.C., Athenian General and Statesman, to Eurybiades, Admiral of the Spartan fleet,who, in an argument, raised his staff as though to strike him. 1It was the sameplea, centuries later, of petitioner-employees Jenny M. Agabon and Virgilio C.Agabon to their employer who fired them from their jobs without hearing themfirst.

In the last two decades, this Court has wrestled with due process issues in dismissalcases. In February 1989, Wenphil Corporation v. National Labor RelationsCommission2put an abrupt end to the long-standing doctrine nullifying thedismissal of an employee even if based on a just or authorized cause, if donewithout prior notice to the employee. Wenphilupheld the dismissal of a crew of afast food chain for just cause evenif it was effected without the requisite notice.And in compensation for the deprivation of his prior right to notice and investigationbefore dismissal, he was given a measly sum of P1,000.00. Since then, lowlyemployees have been cut-off from their bloodline their jobs without dueprocess of law.

A decade later, we re-examined Wenphilin Serrano v. National Labor RelationsCommission3but the struggle of our employees for job security turned from bad to

worse. In Serrano, the majority held that "the employer's failure to comply with thenotice requirement does not constitute a denial of due process but a mere failure toobserve a procedure for the termination of employment which makes thetermination of employment merely ineffectual." 4Thus, the dismissal without priornotice was further legalized and the dismissed employee was simply awarded somecrumbs backwages from the time his employment was terminated until it wasdetermined that the termination was for an authorized cause. I dissented and votedfor the return of thepre-Wenphil rule to stop the pernicious practice of dismissalswithout prior notice.


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After four years of the Serranorule, I see no reason to relent from my DissentingOpinion as the situation has even turned from worse to worst. Agabon is doing awaywith the crumbs and is leaving the employee with no more than a tiny bit of grain.As such, I feel the strong urgency to right away revert to thepre-Wenphil era torectify a grave error and atone for the wanton, albeit now licensed, violation of thepre-dismissal notice requirement committed by employers with twisted ethos.

There are enduring reasons for resisting Wenphil, its clone Serrano, and now their

offspring Agabon. As I said in Serrano

Our ten (10) years experience with Wenphil is not a happy one.Unscrupulous employers have abused the Wenphil ruling. They havedismissed without notice employees including those who are not aseminently undesirable as the Wenphil employee. They dismissed employeeswithout notice as a general rule when it should be the exception. Thepurpose of the pre-dismissal notice requirement was entirely defeated byemployers who were just too willing to pay an indemnity for its violation. Theresult, as the majority concedes, is that the indemnity we imposed has not

been effective to prevent unjust dismissals of employees. To be sure, this iseven a supreme understatement. The ugly truth is that Wenphil is themother of many unjust and unauthorized dismissals of employees who aretoo weak to challenge their powerful employers. acCETD

As the Wenphil indemnity doctrine has proved to be highly inimical to theinterest of our employees, I humbly submit a return to the pre-Wenphil rulewhere a reasonless violation of the pre-dismissal notice requirement makesthe dismissal of an employee illegal and results in his reinstatement. In fine,we should strike down as illegal the dismissal of an employee even if it is fora justified end if it is done thru unjustified means for we cannot be disciples

of the Machiavellian doctrine of the end justifies the means. With duerespect, the majority decision comes too near this mischievous doctrine bygiving emphasis on the end and not on the means of dismissal ofemployees. What grates is that the majority today espouses a doctrine morepernicious than Wenphil for now it announces that a violation of the pre-dismissal notice requirement does not even concern due process. Thereasons relied upon by the majority for this new ruling against the jobsecurity of employees cannot inspire assent.

xxx xxx xxx

The new ruling of the majority erodes the sanctity of the most importantright of an employee, his constitutional right to security of tenure. This rightwill never be respected by the employer if we merely honor the right with aprice tag. The policy of "dismiss now and pay later" favors [moneyed]employers and is a mockery of the right of employees to social justice. Thereis no way to justify this pro-employer stance when the 1987 Constitution isundeniably more pro-employee than our previous fundamental laws. Section18 of Article II (State Policies) provides that "the State affirms labor as aprimary social economic force. It shall protect the rights of workers andpromote their welfare." Section 1 Article XIII (Social Justice and Human


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Rights), calls for the reduction of economic inequalities. Section 3, Article XIII(Labor) directs the State to accord full protection to labor and to guarantysecurity of tenure. These are constitutional polestars and not mere works ofcosmetology. Our odes to the poor will be meaningless mouthfuls if wecannot protect the employee's right to due process against the power of thepeso of the employers.

To an employee, a job is everything. Its loss involves terrible repercussions

stoppage of the schooling of children, ejectment from leased premises,hunger to the family, a life without any safety net. Indeed, to manyemployees, dismissal is their lethal injection. Mere payment of money by wayof separation pay and backwages will not secure food on the mouths ofemployees who do not even have the right to choose what they will chew. 5

The instant case is a perfect portrait of this reversal of fortune. On January 2, 1992,petitioners Jenny Agabon and Virgilio Agabon were hired as gypsum board andcornice installers by respondent Riviera Home Improvements, Inc., a corporationengaged in the business of selling and installing ornamental and constructionmaterials. Seven (7) years later, on February 23, 1999, their services wereterminated on the ground of abandonment of work. Apparently, petitioners weresubcontracting installation jobs for another company and were frequently absentfrom work. Thus, when petitioners reported for work on February 23, 1999,respondent company simply refused to reemploy them unless they agree to work ona "pakyaw" basis. Petitioners demurred since this would mean losing their benefits.

They were given their walking papers without according them the twinrequirements of notice and hearing. Respondent company stated that theyabandoned their jobs. Hence, petitioners filed a complaint for illegal dismissal andpayment of money claims against respondent company.

On December 28, 1999, the Labor Arbiter held that the dismissal of petitioners wasillegal and ordered respondent company to pay them backwages, holiday andservice incentive leave pay, and separation pay in lieu of reinstatement. On appeal,the NLRC reversed the decision of the Labor Arbiter and ruled that the latter erred inawarding backwages and separation pay to petitioners who deliberately abandonedtheir work. On certiorari, the Court of Appeals affirmed the findings of the NLRC butordered respondent company to pay petitioners their money claims. Hence, thispetition for review on the lone issueof whether petitioners were illegally dismissedfrom the service.

While I appreciate the view of Mme. Justice Ynares-Santiago that "[t]he indemnityto be imposed should be stiffer in order to discourage the abhorrent practice of'dismiss now, pay later,'" 6the majority, however, simply retained, if notdiminished, the indemnity granted to the dismissed employees. Consequently, Irespectfully dissent and maintain my view that the workingman's right to jobsecurity and due process of law cannot be measured with a reduced price tag. Themajority opinion treats an employee's right to due process as no more than anabstract declaration. I am unwilling to diminish petitioners' constitutional right toprocedural due process which is necessary to protect their security of tenure. Iproffer the following precepts:


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One. Our Constitution is an ode to social justice. The Court should give dueobeisance to this ode for social justice is not a mere euphony of words. In othercountries, political debates over the last two centuries continue to rage on whethersocial rights should be given constitutional protection. 7In our jurisdiction, however,constitutional social rights have long been embedded in all our Constitutions, andthus at the very least should be respected and protected by our courts.

Social justice is that virtue by which individuals and groups fulfill their obligations tohuman society by contributing positively to the complete well-being of theirfellowmen considered as members of that society, and hence regulate all theiractions accordingly. 8Social justice as a creed in the 1935 Constitution was craftedby Delegate Jose C. Locsin. He persistently pounced on the necessity of includingsocial justice in the Constitution to protect those who have little in life. In thecourse of the debates, the core concept of social justice was developed to mean

. . . justice to the common tao, the "little man" so-called. It means justice to

him, his wife, and children in relation to their employers in the factories, inthe farms, in the mines, and in other employments. It means justice to him inthe education of his children in the schools, in his dealings with the differentoffices of the government, including the courts of justice. 9

1935 Constitution

Thus, Article II (Declaration of Principles), Section 5 of the 1935 Constitution,provides that "[t]he promotion of social justice to insure the well-being andeconomic security of all the people should be the concern of the State." Mr. Justice

Jose Laurel, in his concurring opinion in the main case of Ang Tibay v. Court of

Industrial Relations, 10explained the constitutional milestone

Our Constitution was adopted in the midst of surging unrest anddissatisfaction resulting from economic and social distress which wasthreatening the stability of governments the world over. Alive to the socialand economic forces at work, the framers of our Constitution boldly met theproblems and difficulties which faced them and endeavored to crystallize,with more or less fidelity, the political, social and economic propositions oftheir age . . . (by inserting) general provisions in the Constitution which areintended to bring about the needed social and economic equilibrium between

component elements of society through the application of what may betermed as thejustitia communisadvocated by Grotius and Leibinitz manyyears ago to be secured through the counterbalancing of economic andsocial forces and opportunities which should be regulated, if not controlledby the State or placed, as it were, in custodia societatis. "The promotion ofsocial justice to insure the well-being and economic security of all the people"was thus inserted as a vital principle in our Constitution. 11

And, as quoted in the 1940 case of Antamok Goldlfields Mining Company v. Court ofIndustrial Relations, 12this Court held that in order that the declaration of theprinciple of social justice "may not just be an empty medley of words, the


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Constitution in various sections thereof has provided the means towards itsrealization." 13Thus, the promotion of the welfare of the working classes wasconcretized in Article XIII (General Provisions), Section 6, which mandates that"[t]he State shall afford protection to labor, especially to working women andminors, and shall regulate the relations . . . between labor and capital in industryand in agriculture. The State may provide for compulsory arbitration." EcDSHT

Delegate Locsin even exerted a last-ditch effort to amend the draft of the

constitutional provision on labor to read in part, "[t]he State recognizes the right ofall workers to workand shall enact laws protecting labor." In defense of hissubstitute amendment, Delegate Locsin in a stirring speech dwelt on the necessityof paying more attention to the needs of the working class and of including in theConstitution a provision guaranteeing to all workers the right to work. Hissubstitute amendment was however defeated, but only because his ideas werealready said to be within the scope of the constitutional provisions on social justiceand on labor which was then being considered. 14

As early as Calalang v. Williams, 15the Court already threw in some wind of caution

The promotion of social justice, however, is to be achieved not through amistaken sympathy towards any given group. Social justice is "neithercommunism, nor despotism, nor atomism, nor anarchy," but thehumanization of laws and the equalization of social and economic forces bythe State so that justice in its rational and objectively secular conception mayat least be approximated. Social justice means the promotion of the welfareof all the people, the adoption by the Government of measures calculated to[e]nsure economic stability of all the competent elements of society, throughthe maintenance of a proper economic and social equilibrium in theinterrelations of the members of the community, constitutionally, throughthe adoption of measures legally justifiable, or extra-constitutionally, throughthe exercise of powers underlying the existence of all governments on thetime-honored principle of salus populi est suprema lex. 16

Social justice, therefore, must be founded on the recognition of thenecessity of interdependence among divers and diverse units of a societyand of the protection that should be equally and evenly extended to allgroups as a combined force in our social and economic life, consistent withthe fundamental and paramount objective of the state of promoting the

health, comfort, and quiet of all persons, and of bringing about "the greatestgood to the greatest number." 17

Indeed, in light of the accelerated pace of Philippine industrialization then, theFilipinos who used to be more or less anchored to the soil and living comparativelysimple lives were fast becoming full-fledged members of the complex andimpersonal industrial society. They and their families were entirely at the mercy ofthe severities of the labor system. They were wholly dependent for theirsubsistence, sustenance and sheer survival on a job and regular wage.

In time, Mr. Chief Justice Enrique M. Fernando drew the arches of social justice as


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follows:

What is thus stressed is that a fundamental principle as social justice,identified as it is with the broad scope of police power, has an even morebasic role to play in aiding those whose lives are spent in toil, with destitutionan ever-present threat, to attain a certain degree of economic well-being.Precisely, through the social justice coupled with the protection to laborprovisions, the government is enabled to pursue an active and militant policy

to give reality and substance to the proclaimed aspiration of a better life andmore decent living conditions for all. It is in that spirit that in 1969, in DelRosario vs. Delos Santos(L-20586, March 21, 1969, 22 SCRA 1196),reference was made to what the social justice concept signifies in therealistic language of the late President Magsaysay: "He who has less in lifeshould have more in law." After tracing the course of decisions which spokeuniformly to the effect that the tenancy legislation, now on the statutebooks, is not vitiated by constitutional infirmity, the Del Rosario opinion madeclear why it is easily understandable "from the enactment of the Constitutionwith its avowed concern for those who have less in life, [that] theconstitutionality of such legislation has been repeatedly upheld." What issought to be accomplished by the above fundamental principle is to assurethe effectiveness of the community's effort to assist the economicallyunderprivileged. For under existing conditions, without succor and support,they might not, unaided, be able to secure justice for themselves. 18

1973 Constitution

The 1973 Constitution carried over the concept of social justice under the 1935Constitution. 19Article II (Declaration of Principles and State Policies), Section 6 ofthe 1973 Constitution, provides that "[t]he State shall promote social justice to

ensure the dignity, welfare, and security of all the people. Towards this end, theState shall regulate the acquisition, ownership, use, enjoyment, and disposition ofprivate property, and equitably diffuse property ownership and profits." Itscounterpart provision on labor was specific and categorical. Article I I (Declaration ofPrinciples and State Policies), Section 9 of the 1973 Constitution, commands that"[t]he State shall afford protection to labor, promote full employment, ensure equalwork opportunities regardless of sex, race or creed, and regulate the relationsbetween workers and employers. The State shall assure the rights of workers toself-organization, collective bargaining, security of tenure, and just and humaneconditions of work. The State may provide for compulsory arbitration." The

elevationof this provision in the Declaration of Principles and State Policies of the1973 Constitution underscored its sublime significance. Hence, in Philippine ApparelWorkers Union v. National Labor Relations Commission, 20this Court explained thatthis obligation of the State to the workingman has repercussions on the stability, ifnot survival, of the nation itself

More than elusive justice, survival is the daily problem of the worker and hisfamily. The employer is not faced with such a problem. More often than not,the employer dissipates part of his income or profit in pleasures of the fleshand gambling aside from luxuries, fabulous parties and conspicuous


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consumption.

The stability of the economy does not depend on the employer alone, but ongovernment economic policies concerning productivity in all areas and notonly in the clothing or textile industries. There is not even an intimation thatthe company is losing. It is the living wage of the workers which is the basisof a stable economy. If the company cannot pay a living wage, it has nobusiness operating at the expense of the lives of its workers from the very

start.

The preservation of the lives of the citizens is a basic duty of the State, morevital than the preservation of the profits of the corporation. When the Stateis engaged in a life-and-death struggle, like war or rebellion, it is the citizenworker who fights in defense of the State and for the preservation of theexistence of corporations and businesses within its territorial confines.When the life of the State is threatened from within and without, it is thecitizen, not the corporation or business enterprise, that mans the weapons

of war and march into battle.

To invoke the nebulous term "stable economy" to justify rejection of theclaims of the workers as against the assets of the employer, is to regardhuman life as more expendable than corporate capital. There is nothing inthe Constitution that expressly guarantees the viability of businessenterprises much less assuring them of profits. 21

Thus, in affirming the reinstatement of an employee, this Court in Philippine AirLines v. Philippine Air Lines Employees Association22held that

[t]he futility of this appeal becomes even more apparent considering theexpress provision in the Constitution already noted, requiring the State toassure workers "security of tenure." It was not that specific in the 1935Charter. The mandate was limited to the State affording "protection to labor,especially to working women and minors . . ." If by virtue of the above, itwould not be legally justifiable to reverse the order of reinstatement, itbecomes even more readily apparent that such a conclusion is even moreunwarranted now. To reach it would be to show lack of fealty to aconstitutional command. 23

1987 ConstitutionThe 1987 Constitution has deepened the roots of social justice and expanded itsbranches to include "all phases of national development." 24An entire article wasdevoted to Social Justice and Human Rights 25which properly includes a full sectionon labor

LABOR

Sec. 3. The State shall afford full protection to labor, local and overseas,organized and unorganized, and promote full employment and equality of


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employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collectivebargaining and negotiations, and peaceful concerted activities, including theright to strike in accordance with law. They shall be entitled to security oftenure, humane conditions of work, and a living wage. They shall alsoparticipate in policy and decision-making processes affecting their rights andbenefits as may be provided by law. TICaEc

The State shall promote the principle of shared responsibility betweenworkers and employers and the preferential use of voluntary modes insettling disputes, including conciliation, and shall enforce their mutualcompliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers,recognizing the right of labor to its just share in the fruits of production andthe right of enterprises to reasonable returns on investments, and toexpansion and growth.

Then, Article II (Declaration of Principles and State Policies), Section 18 of the 1987Constitution, provides that "[t]he State affirms labor as a primary social economicforce. It shall protect the rights of workers and promote their welfare." Under ArticleII (Declaration of Principles and State Policies), Section 9 of the 1987 Constitution, "[t]he State shall promote a just and dynamic social order that will ensure theprosperity and independence of the nation and free the people from povertythrough policies thatprovide adequate social services, promote full employment, arising standard of living and an improved quality of life for all." These provisionsprotecting labor are not mere beliefs but should be reinforced by everyone'sbehavior.

The Labor Code of the Philippines and its Implementing Rules

In 1974, P.D. No. 442, as amended, otherwise known as the Labor Code of thePhilippines, was enacted. There was power in its purpose which was trumpeted inits title to afford protection to labor, promote employment and human resourcesdevelopment and insure industrial peace based on social justice. Article 3 of itsPreliminary Title under General Provisions provides

ART. 3. Declaration of basic policy. The State shall afford protection tolabor, promote full employment, ensure equal work opportunities regardless

of sex, race or creed, and regulate the relations between workers andemployers. The State shall assure the rights of workers to self-organization,collective bargaining, security of tenure, and just and humane conditions ofwork.

Under Labor Relations (Book Five), Article 211 states

ART. 211. Declaration of Policy. A. It is the policy of the State:

(a) To promote and emphasize the primacy of free collectivebargaining and negotiations, including voluntary arbitration, mediation


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and conciliation, as modes of settling labor or industrial disputes;

(b) To promote free trade unionism as an instrument for theenhancement of democracy and the promotion of social justice anddevelopment;

(c) To foster the free and voluntary organization of a strong andunited labor movement;

(d) To promote the enlightenment of workers concerning theirrights and obligations as union members and as employees;

(e) To provide an adequate administrative machinery for theexpeditious settlement of labor or industrial peace;

(f) To ensure a stable but dynamic and just industrial peace; and

(g) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare.

In May 1980 and then again in March 1989, B.P. Blg. 70 and R.A. No. 6715 wereapproved, respectively, "to strengthen the constitutional right of workers", and "toextend protection to labor." Accordingly, Volkschel Labor Union v. Bureau of LaborRelations, 26decreed that "[i]n the implementation and interpretation of theprovisions of the Labor Code and its implementing regulations, the workingman'swelfare should be the primordial and paramount consideration." 27

Two. Courts at all times should give meaning and substance to constitutionalpostulates in favor of the workingman. The 1987 Constitution is fraught withprovisions protecting the workingman, e.g., Secs. 9, 10 and 18, Art. II, and Sec. 3,

Art XIII, a legacy of the evolution off rights. These constitutional creeds should notbe dwarfed by deeds. A contrary posture would convert these creeds as"meaningless constitutional patter." 28The principle of social justice was notembedded in the fundamental law for demagoguery. It was meant to be a vital,articulate, compelling principle of public policy. 29Social justice should be a livingreality and not a mere high level abstraction. 30Thus, while the Constitution mustbe read as a whole, even if we do not invoke its Due Process Clause, the coherentapplication of the separate constitutional creeds on social justice and labor is enoughto uphold the workers' constitutional right to work and their consequent right to jobsecurity. These substantive rights are not to be weakened by a diminishedprocedural right. For in weakening the procedure, we weaken the substantive right.

The importance of the procedure to protect the exercise of the right to work cannotbe overemphasized.

I have always, as I do now, adhered to the constitutional precepts of social justiceand protection to labor. Some years back, in Pepito v. Secretary of Labor, 31I, as anAssistant Solicitor General, invoked the argument of constitutional guarantee ofsecurity of tenure as the rationale for the reinstatement of an employee. Theargument was sustained by this Court speaking through Mr. Chief Justice Fernandono less


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. . . As set forth in the Comment, considered as the answer, Solicitor GeneralEstelito P. Mendoza, Assistant Solicitor General Reynato S. Puno and SolicitorJesus V. Diaz "are of the opinion that petitioner's reinstatement is in order."Their view follows from pronouncements of this Tribunal "handed down inconsonance with the social justice and protection to labor provisions of theConstitution."

. . . That point is well-taken. In the latest case in point, Meracap v.

International Ceramics Mfg. Co., Inc., this Court left no doubt that it iscommitted to the principle of vitalizing "the constitutional mandate ofsecurity of tenure as an aspect of the protection accorded labor." Thereshould be no reason why there should be a deviation in this litigationespecially so when again, as noted in the Comment, respect for such amandate has been accorded in previous opinions. 32

With due respect, we should not now deviate from this doctrine. TaDSHC

Three. The constitution puts the employee on equal footing with his employer. 33Asbetween an employee, usually poor and unlettered, and the employer, who has

resources to secure able legal advice, the law has reason to demand from the latterstricter compliance. For, social justice in these cases is not equality but protection. 34

As Mr. Chief Justice Fernando stressed in Victorias Milling Co., Inc. v. Workmen'sCompensation Commission35

To repeat, courts should ever be on the alert lest through inadvertence orfaulty analysis the expected opposition from management be appraisedmuch more favorably than warranted. The unfortunate result would be thatboth the social justice concept and the complementary constitutionalcommand of protection to labor would be disregarded and set at naught.

There is no higher duty cast on the judiciary than to guard against such anundesirable possibility, fraught as it is with consequences truly to bedeplored. 36

In a similar vein, Mr. Chief Justice Ramon C. Aquino, in his Concurring Opinion inAllied Investigation Bureau v. Hon. Inciong, 37opined that "social justice in the caseof the laborers means compassionate justice or an implementation of the policy thatthose who have less in life should have more in law." 38The Constitution helpslabor for a simple reason. Employees are overmatched in their struggle against theiremployers. Their playing field is not level.

Four. This Court has long extended constitutional due process in labor casesinvolving private action. Prior to Wenphil, the rule etched in stone is that anemployer can validly dismiss an erring employee only after giving him notice andhearing. Thus, decades ago, this Court in Batangas Laguna Tayabas Bus Co. v. Courtof Appeals39ruled that "the failure of petitioner to give the private respondent thebenefit of a hearing before he was dismissed constitutes an infringement on hisconstitutional right to due process of law." 40In De Leon v. National Labor RelationsCommission41where an employee was dismissed without notice, it was held that "


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[t]here is in this case a clear denial of due process, a constitutional right which mustbe safeguarded at all timesespecially when what is at stake is petitioner's positionas his only means of livelihood." 42In Reyes v. Philippine Duplicators, Inc., 43wherepetitioner Reyes was dismissed from the service in 1977 without any investigationor hearing, this Court found that the dismissal was arbitrary as Reyes was denieddue process. Hence, even the non-compliance with Sections 2 and 3, Rule XIV, BookV of the Implementing Rules and Regulations of the Labor Code pursuant to theamendments of P.D. No. 850 which was issued in 1975, requiring a prior clearancefrom the Department of Labor to terminate the services of an employee, renderedthe termination illegal and nullified the dismissal of the employee. 44

In August 1981, B.P. Blg. 130 did away with the clearance to terminateemployment. Prior notice and formal investigation were however instead imposedas conditions sine qua nonbefore termination may be effected. 45Thus, theinviolability of prior notice and hearingbefore an employee could be dismissed wasiterated and reiterated. In Miguel v. National Labor Relations Commission, 46wherethe employee was simply handed his walking papers without any explanation, thisCourt held that the dismissal was unwarranted and ruled that "[t]he due process

requirement is not a mere formalitythat may be dispensed with at will. Itsdisregard is a matter of serious concern since it constitutes a safeguard of thehighest order in response to man's innate sense of justice." 47Kwikway EngineeringWorks v. National Labor Relations Commission, 48explained that "[t]he twinrequirements of notice and hearing constitute essential elements of due processincases of employee dismissal: the requirement of notice is intended to inform theemployee concerned of the employer's intent to dismiss and the reason for theproposed dismissal; upon the other hand, the requirement of hearing affords theemployee an opportunity to answer his employer's charges against him accordinglyto defend himself therefrom before dismissal is effected. Neither of these tworequirements can be dispensed with without running afoul of the due processrequirement of the 1987 Constitution." 49In a stream of ceaseless cases, weadhered to the doctrine that failure to comply with the two-notice rule makes thedismissal illegal and reinstatement or payment of separation pay in order. 50In fine,"fire the employee, and let him explain later" violates this hallowed rules. 51It hasalways been this way until Wenphil.

This is not to hold that a trial-type proceeding is required to be conducted byemployers. 52Hearings before the employers prior to the dismissal are in the natureof and akin to administrative due process which is free from the rigidity of certain

procedural requirements. Mr. Justice Laurel way back in 1940 enumerated thecardinal rights of parties in administrative proceedings in the landmark case of AngTibay v. Court of Industrial Relations53

1. the right to a hearing which includes the right to present one's caseand submit evidence in support thereof;

2. the tribunal must consider the evidence presented;

3. the decision must have something to support itself;


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governments in size and power. Increasingly, it is the corporate interest more thanthe human interest that defines the policy agendas of states and internationalbodies . . ." 61Assailing the threat to liberty coming from these new economic rulersPresident Franklin Delano Roosevelt said: "The royalists of the economic order haveconceded that political freedom was the business of government but they havemaintained that economic slavery was nobody's business. They granted that thegovernment could protect the citizen in his right to vote, but they denied that thegovernment could do anything to protect the citizen in his right to work and hisright to live." 62To be sure, some of the unlamented decisions of the Supreme Courtof the United States were those which allowed private corporations to rimroughshod over the rights of workers. Observed Korten again: 63

A conservative court systemthat was consistently responsive to theappeals and arguments of corporate lawyers steadily chipped away at therestraints a wary citizenry had carefully placed on corporate powers. Step-by-step, the court system put in place new precedents that made theprotection of corporations and corporate property a centerpiece ofconstitutional law. These precedents eliminated the use of juries to decide

fault and assess damages in cases involving corporate-caused harm andtook away the right of states to oversee corporate rates of return andprices.Judges sympathetic to corporate interests ruled that workers wereresponsible for causing their own injuries on the job, limited the liability ofcorporations for damages they might cause, and declared wage and hourslaws unconstitutional. They interpreted the common good to meanmaximum production no matter what was produced or who it harmed. TDcHCa

The choice that confronts us is which right to uphold: the right to work of anunderprivileged natural person or the right to property of an overprivilegedartificial person. In truth, there is but one choice to make for it is highlyanomalous to bestow better rights to an artificial person than a natural person. 64

Certainly, these are neither "novel legal ideas" nor "nouvelle vague theories" butcareful directions brought about by the evolution of laws and the due process clausewhich saw the need to rightfully protect the underprivileged as a result of ominousoccurrences over the years.. These, on the contrary, are persuasive axioms whichprevail in other countries and should find application in our jurisdiction.

Indeed, it strains my imagination to see how the application of the constitutionaldue process clause to cases of illegal dismissal can "open the floodgates to, and the

docket . . . swamped with, litigations of the scurrilous sort" and "give rise to allabsurd constitutional claims." Suffice it to say that equating an excommunicatedCatholic demanding reinstatement, or a celebrity endorser suing to be able to singfor another brand, or even an employee preventing his employer to read his outgoing e-mail with a dismissed employee exerting his constitutional right to securityof tenure and due process of clause is too off-line. Withal, as adverted to, we havelong extended constitutional due process and security of tenure in labor casesinvolving private action and I have yet to see "litigations of the scurrilous sort"being entertained by the courts.


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Five. An employee who is denied procedural doe process is entitled toreinstatement. Nothing less. This Court, in carrying out the constitutional directiveof the 1973 Constitution requiring the State to "assure the rights of workers to. . .security of tenure. . ." 65has quite consistently nullified, simply on constitutionalgrounds, dismissals in violation of procedural due process, notwithstanding theabsence of an express provision of any statute. The Court has done the same under

the 1987 Constitution which admittedly has given more protection to labor thanany of our previous charters through a four-paragraph section in the Article onSocial Justice and Human Rights which details the protective mantle accorded tolabor alone. 66Thus, Art. XIII, Sec. 3 of the 1987 Constitution decrees that "[t]heState shall afford full protection to labor. . . and promote full employment. . . (Allworkers) shall be entitled to security of tenure. . ." Art. XII, Sec. 18 of the 1987Constitution mandates that "[t]he State affirms labor as a primary social economicforce. It shall protect the rights of workers and promote their welfare." All told, thisCourt for almost three decades has set aside, on constitutional grounds, dismissalsin violation of procedural due process until Wenphil came along, with the

interests of the employer tailing and suddenly enjoying preference. To upholdWenphil, Serrano, and now Agabon, is to dilute the protection to those who need itmost despite the constitutional mandate which in the language of Mr. JusticeCardozo speaks with "a reverberating clang that drowns all weaker sounds." Withdue respect, the grant of indemnity to the dismissed employee "as both penalty anddisincentive" as the majority provides in the instant case does not square with theprotection accorded by the Constitution to labor. There is only one main relief incases of dismissal without notice and hearing reinstatement.

Six. Compliance with procedural due process is not a burden on employers. There is

no valid reason why employers should have any difficulty according procedural dueprocess to their employees. The rules are fairly simple. Section 2, Rule XXIII(Termination of Employment), Book V (Labor Relations), Omnibus RulesImplementing the Labor Code, provides

Section 2. Standards of due process; requirements of notice. In allcases of termination of employment, the following standards of due processshall be substantially observed:

I. For termination of employment based on just causes as defined inArticle 282 of the Code:

(a) A written noticeserved on the employee specifying the ground orgrounds for termination, and giving to said employee reasonable opportunitywithin which to explain his side;

(b) A hearing or conferenceduring which the employee concerned, withthe assistance of counsel if the employee so desires, is given opportunity torespond to the charge, present his evidence or rebut the evidencepresented against him; and


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(c) A written notice [of] termination served on the employee indicatingthat upon due consideration of all the circumstances, grounds have beenestablished to justify his termination.

In case of termination, the foregoing notices shall be served on theemployee's last known address.

II. For termination of employment as based on authorized causes defined

in Article 283 of the Code, the requirements of due process shall be deemedcomplied with upon service of a written notice to the employee and theappropriate Regional Office of the Department at least thirty (30) daysbefore the effectivity of the termination, specifying the ground or groundsfor termination.

III. If the termination is brought about by the completion of the contractor phase thereof, no prior notice is required. If the termination is broughtabout by the failure of an employee to meet the standards of the employerin the case of probationary employment, it shall be sufficient that a writtennotice is served the employee within a reasonable time from the effective

date of termination.

Similarly, Section 2, Rule I (Termination of Employment and Retirement), Book VI(Post-Employment) of the same Omnibus Rules, which covers all establishmentsand undertakings, whether for profit or not, except the Government, requires thesame notice and hearing.

In sum, in cases of dismissal based on just causes (Article 282, Labor Code), theemployer must give two (2) simplenotices: (1) notice before dismissal to apprisethe employee being dismissed of the particular acts or omissions for which the

dismissal is sought, and (2) subsequent notice to inform him of the employer'sdecision to dismiss him. In cases of dismissal for authorized causes (Article 283,Labor Code), the employer must serve an uncomplicatedwritten notice on theworker and on the Department of Labor and Employment at least one (1) monthbefore the intended closure of the establishment or reduction of personnel. The lawrequires nothing more. cEAaIS

It is distressing to say the least why employers should be exempted from observingthis simple duty. In fine, to give to labor what is due them is far from authorizingoppression nor destruction of the employer as some views would have. The

employer cannot simply abuse the conduct of his business to the prejudice of anemployee. The persistence in violating the rights of the workers is the employer'sown doing and self-destruction which may be let alone.

The right of an employer to dismiss an employee differs from and should not beconfused with the manner in which such right is exercised. While the managementhas certain privileges, the exercise of such privileges must be made without abuseof discretion, Thus, Dole Philippines v. National Labor Relations Commission, 67

recognized as a management prerogative the determination of the need for thephasing out of a department as a labor and cost saving device. In the same manner,Remereco Garments Manufacturing v. Minister of Labor and Employment68


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conceded that it is the sole prerogative of management to dismiss or lay-off anemployee. But in these two cases, and in so many other cases, this Court cautionedthat the exercise of such prerogatives must be made without abuse of discretion forwhat is at stake is not only the employee's position but also their means oflivelihood. 69It must not be oppressive and abusive since it affects one's person andproperty. It is the right of every workingman to assure himself and his family a lifeworthy of human dignity. Consequently, in dismissing an employee based onauthorized cause or for just cause, as the case may be, the employer must, at thevery minimum, comply with procedural due process. Failure to observe due process,particularly the prior notice requirement, rightly deserves stiff sanctions, if notcondemnation, and not a mere slap on the wrist, as the majority now propounds. AsI said in Serrano

It is equally puzzling why the majority believes that restoring the employee'sright to pre-dismissal notice will negate the right of an employer to dismissfor cause. The pre-Wenphil rule simply requires that before the right of theemployer to dismiss can be exercised, he must give prior notice to theemployee of its cause. There is nothing strange nor difficult about this

requirement. It is no burden to an employer. He is bereft of reason not togive the simple notice. If he fails to give notice, he can only curse himself. Heforfeits his right to dismiss by failing to follow the procedure for the exerciseof his right.

xxx xxx xxx

In fine, if the employer's right to dismiss an employee is forfeited for his wasfailure to comply with this simple, reasonable duty to pre-notify hisemployee, he has nothing to blame but himself. 70

Verily, dismissal without due process debases human dignity. It is, therefore,incumbent upon the employer to conduct a formal investigation and inform theemployee of the specific charges against him. Most certainly, the resolution ofextreme cases, e.g., where the employee threatens the life of the employer, are theexceptions rather than the ordinary and usual cases. As such, rules governing themshould not be used as the general rule. Rather, employers should be reminded thatunder our system of government, even the most hardened criminals are given theirday in court. 71Employees are not entitled to anything less.

Seven. In the hierarchy of rights of an employees, the right to security of tenure is

high, if not the highest. Its paramount value is recognized and guaranteed underour new Constitution. 72Consequently, the first paragraph of Article XIII, Section 3of the 1987 Constitution, extends the protective mantle of the Constitution to all oflabor including the promotion of full employment. The second paragraph specifiesthe guaranteed right to security of tenure. All other rights, e.g., the right tocollective bargaining and negotiations, the right to peaceful concerted activities, theright to strike and form unions, and the right to due process, merely complementthe right to job security. All these complementary rights are meaningless to anunemployed Juan De la Cruz. Thus, we held in Rance v. National Labor RelationsCommission, 73"[i]t is the policy of the State to assure the right of workers to


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'security of tenure.' The guarantee is an act of social justice. When a person has noproperty, his job may possibly be his only possession or means of livelihood,

Therefore he should be protected against any arbitrary deprivation of his job." 74

Almira v. B.F. Goodrich Philippines, Inc. 75is worth quoting

It would imply at the very least that where a penalty less punitive wouldsuffice, whatever missteps may be committed by labor ought not to bevisited with a consequence so severe. It is not only because of the law's

concern for the workingman. There is, in addition, his family to consider.Unemployment brings untold hardships and sorrows on those dependenton the wage-earner. The misery and pain attendant on the loss of jobs thencould be avoided if there be acceptance of the view that under all thecircumstances of this case, petitioners should not be deprived of theirmeans of livelihood. Nor is this to condone what had been done by them.For all this while, since private respondent considered them separated fromthe service, they had not been paid. From the strictly juridical standpoint, itcannot be too strongly stressed, to follow Davis in his masterly work,Discretionary Justice, that where a decision may be made to rest [on] an

informed judgment rather than rigid rules, all the equities of the case mustbe accorded their due weight. Finally, labor law determinations, to quotefrom Bultmann, should be not only secundum rationembut also secundumcaritatem. 76

Eight. Workers need work more than anything else. For a wageworker, a job isimportant. While there is work, there is food on the table. Take away work, replaceit with a meager lump sum, and the food will disappear. Through work, thebreadwinner satisfies his basic needs and those of his family. He also provides

himself with a means to express himself, transform, develop and perfect his skillsand talents. Through work, he interacts and establishes relations with others. Workis a defining feature of human existence. It is the means of sustaining life andmeeting essential needs. It is also an activity through which individuals affirm theirown identity, both to themselves and to those around them. It is crucial toindividual choice, to the welfare of families and to the stability of societies. 77Everyman has the right to work, to a chance to develop his qualities and his personality inthe exercise of his profession, to equitable remuneration which will enable him andhis family to lead a worthy life on material, social, cultural and spiritual level. 78

Shylock said it well: "You take my life when you do take the means whereby I live."

79

Nine. To simply allow payment of nominal damages for violation of employee's righto due process is to give undue advantage to employers. One does not need to havea stratospheric mind to know that the Constitution gave greater rights toemployees over their employers. The intent is to equalize the fight of theunderprivileged against the overprivileged. We cannot allow the employers tomarginalize the right of the workingman to due process for a few pesos withoutmocking the protection accorded by the Constitution to the powerless. Thedeprivation of the right to security of tenure and due process is beyond monetary


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valuation. In fine, to lengthen the longevity of Serranois to sharpen the dangerousdivide between the haves and have-nots in our society. But Agabonis not merelyextending Serrano. Agabon is far worse than Serrano. TDaAHS

In Serrano, the dismissed employee was awarded backwages from the time hisemployment was terminated until it was determined that the termination was foran authorized cause. Using the facts of the instant case as an illustration, petitioner-employees who were dismissed in February 1999 stand to get roughly 63 months o

backwagesunder Serrano, i.e., the number of months from the time they weredismissed in February 1999 until November 2004 when it was determined that thetermination was for just cause. In Agabon, however, the dismissed employee ismerely being granted an indemnity equivalent to Thirty Thousand Pesos. This isexactly Wenphilmore than a decade later, with the cost of money and inflationfactored in. Indeed, the sorry plight of the workers has just been worsened, if notpreserved, by the new majority ruling.

Just a word more. In Serrano, I pointed out:

. . . The dilution of the rule has been abased by unscrupulous employerswho then followed the "dismiss now, pay later" strategy. This evil practice ofemployers was what I expected the majority to address in re-examining theWenphil doctrine. At the very least, I thought that the majority would restorethe balance of rights between an employee and an employer by giving backthe employee's mandatory right to notice before dismissal. It is disquieting,however, that the majority re-arranged this balance of right by tilting it morein favor of the employer's right to dismiss. Thus, instead of weakening a bitthe right to dismiss of employers, the majority further strengthens it byinsisting that a dismissal without prior notice is merely "ineffectual" and notillegal.

The stubborn refusal of the majority to appreciate the importance of pre-dismissal notice is difficult to understand. It is the linchpin of an employeesright against an illegal dismissal. The notice tells him the cause of [the]dismissal. It gives him a better chance to contest his dismissal in anappropriate proceeding as laid down in the parties' collective bargainingagreement or the rules of employment established by the employer, as thecase may be. In addition, it gives to both the employee and employer morecooling time to settle their differences amicably. In fine, the prior noticerequirement and the hearing before the employer gives an employee a

distinct, different and effective first level of remedy to protect his job.

xxx xxx xxx

I respectfully submit that the majority cannot revise our laws nor shun thesocial justice thrust of our Constitution in the guise of interpretationespecially when its result is to favor employers and disfavor employees. Themajority talks of high nobility but the highest nobility is to stoop down toreach the poor. 80

In these times when our lowly workers can hardly maintain body and soul together


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due to their meager means, I find it hard to believe that the majority in Wenphil, inSerrano, and now in the instant case Agabon, persists in weakening our employee'sright to job security. The stance simply offends a basic principle of justice soentrenched in our tradition and etched in our conscience. An employee may nothave a torrens title to his job but it is not too much to require that before he isdismissed by his employer, he should be given a simple notice of the cause of hisdismissal and a summary hearing to present his side. All our constitutional andstatutory precepts on social justice and the protection of labor will go to naught ifwe perpetuate our ruling that a dismissal without the required prior notice is validand if we justpenalize with the payment of penniesviolations of the employee'sright to due process. Without doubt, Wenphiland Serranohave lengthened thequeue of the unemployed. Agabonwill stretch it out even more.

In the case at bar, where petitioners Jenny Agabon and Virgilio Agabon weredismissed from the service for abandonment of work without the due processrequirements of two (2) notices and hearing, I submit that the dismissals should benullified and set aside, and petitioners immediately reinstated without loss ofseniority rights and other privileges. This Court should protect labor and it should

walk the talk.

Accordingly, I vote for the immediate REINSTATEMENT of petitioners Jenny M.Agabon and Virgilio C. Agabon, without loss of their seniority rights and otherprivileges and with full backwages, and the REVERSION to the pre-Wenphil Doctrinein resolving future labor cases.

PANGANIBAN,J ., dissenting:

The core issue of the present case concerns the legal effect of and the corresponding

sanction for the failure of an employer to give an employee the pre-dismissalwritten notice of termination and opportunity to be heard required under the LaborCode and its implementing Rules.

In Serrano v. NLRC, 1the Court held that such termination of employment shouldbe considered "ineffectual" and, as such, sanctioned withpayment of full backwagesplus in case the dismissal was for an authorized cause separation payinaccordance with Article 283 2of the Labor Code. In addition, nominal and moraldamagesmay also be awarded, if warranted by the evidence.

In the case before us now, the employment of petitioners was terminated on theground of abandonment of their work. However, the employer failed to accord themtheir right to prior notice and hearing, required under Article 277 3of the LaborCode and Section 2 4of Rule XXII I of the 1999 Implementing Rules andRegulations. The majority holds that for violation of the employee's right tostatutory due process, an indemnity in the amount of P30,000 should be awarded tothe petitioners as nominal damages under the Civil Code. According to the majority,this award should serve to discourage employers from violating the statutory dueprocess rights of their employees.

With due respect, I disagree with this ruling, because it aggravates the rights of our


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work force, and diminishes respect for due process.

Jurisprudence on Right toNotice and Hearing

Prior to the promulgation in 1989 of Wenphil v. NLRC, 5the Court held that whether for a valid cause or not dismissing employees without giving them priornotice and the opportunity to be heard was illegal; and that, as a consequence, they

were entitled to reinstatementplusfull back wages. Wenphilabandoned this policyand ruled that if the dismissal was for a just or an authorized cause, but without dueprocess, the termination was valid; but that the employer should be sanctioned, forviolating the employee's right to notice and hearing, through the payment ofindemnity to each dismissed employee in an amount ranging from P1,000 toP10,000. DHSEcI

In 2000, Serrano6held that such dismissals for just or authorized causes butwithout due process were merely ineffectual(not illegal). Nevertheless, theemployee was entitled tofull back wagesplus nominal and moral damages, if

warranted by the evidence; and, in case the dismissal was for an authorized cause,separation payin accordance with Article 283 of the Labor Code.

This time, in the present case, the majority is incredibly reverting to Wenphilinupholding the validity of employment terminations without due process.

A Setback onLabor's Rights

With due respect, I strongly oppose the Court's inexplicable turnaround. This rulingis a setback on labor's rights. Thus, I reiterate my Dissent 7in Serrano. In that case,I was grateful enough that the Court had decided to reexamine and modify the ten-year Wenphildoctrine. In the process, it had at least increased the monetary awardthat should go to the dismissed employee from a nominal sum in the concept of"indemnity or damages" to "full back wages."

I respectfully submit that nothing has transpired in the past four and a half yearssince Serranowas issued, that justifies further diminution of whateverconstitutional rights to due process and security of tenure our workers still enjoy. Onthe contrary, nothing is more evident than the inescapabl

labor- agabon v. nlrc

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