G.R. No. 152048 (Felix B. Perez and Amante G. Doria v. Philippine Telegraph and Telephone Company and Jose Luis Santiago)
April 7, 2009
S E P A R A T E C O N C U R R I N G
A N D D I S S E N T I N G O P I N I O N
VELASCO, JR., J.:
I concur in my esteemed colleague’s well-written ponencia, except in one issue, to which I hereby register my dissent.
In gist, the facts as contained in the ponencia show that Felix B. Perez and Amante G. Doria were dismissed by the Philippine Telegraph and Telephone Company without a hearing or conference for a series of allegedly anomalous transactions.
The only issue covered by my dissent is, are Perez and Doria entitled to a hearing or conference as mandated by Section 2(b), Rule XXIII, Implementing Rules of Book V of the Labor Code?
The ponencia resolved this in the negative and held that Sec. 2(b), Rule XXIII, Implementing Rules of Book V, by requiring a hearing, went beyond the terms and provisions of the Labor Code, particularly Article 277(b) thereof that merely requires the employer to provide employees with ample opportunity to be heard and to defend themselves with the assistance of their representatives if they so desire. The ponencia, however, conceded that a formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it or when similar circumstances justify. I submit that the actual hearing or conference is mandatory in ALL dismissal cases 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 by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. (Emphasis supplied.)
The aforequoted provision states that employees are to be given “ample” opportunity to be heard and defend themselves. However, the word “ample” is vague and not defined in the said provision. Since the meaning of this word is unclear, then it should be given a liberal construction to favor labor. “Ample” means “considerably more than adequate or sufficient.” Ample opportunity can be construed to be broad enough to encompass an actual hearing or conference. To be sure, 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, I believe there is no discrepancy between Art. 277 and the Implementing Rule in question.
The Implementing Rules thus makes available for employees a considerably or generously sufficient opportunity to defend themselves through a hearing or conference. In Tanala v. NLRC, we said that:
With respect to the issue of whether petitioner was denied due process in the administrative procedure entailed in his dismissal, we agree with the labor arbiter that petitioner was indeed denied procedural due process therein. His dismissal was not preceded by any notice of the charges against him and a hearing thereon. The twin requirements of notice and hearing constitute the essential elements of due process in cases of dismissal of employees. The purpose of the first requirement is obviously to enable the employee to defend himself against the charge preferred against him by presenting and substantiating his version of the facts.
Contrary to the findings of the NLRC, the notice of preventive suspension cannot be considered as an adequate notice. Even the fact that petitioner submitted a written explanation after the receipt of the order of suspension is not the “ample opportunity to be heard” contemplated by law. Ample opportunity to be heard is especially accorded to the employee sought to be dismissed after he is informed of the charges in order to give him an opportunity to refute such accusations levelled against him.
Furthermore, this Court has repeatedly held that to meet the requirements of due process, the law requires that an employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, that is, (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice, after due hearing, which informs the employee of the employer’s decision to dismiss him. (Emphasis supplied.)
(2) The ponencia seems to underscore the absence of any mention of an “actual hearing” in Art. 277(b). It is conceded that there is no explicit mention of an actual hearing or conference in said legal provision. As earlier discussed, the requisite hearing is captured 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 phrase “actual hearing” is not specified in Art. 277(b), the same thing is true with respect to the second written notice informing the employee of the employer’s decision which is likewise unclear in said provision. Thus, the fact that Art. 277(b) does not expressly mention actual hearing in Art. 277(b) does not bar the Secretary of Labor from 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 meant is an actual hearing or conference. It should be noted that the Secretary of Labor also issued a rule on the need for a second written notice on the decision rendered in the illegal dismissal proceedings despite the silence of Art. 277(b) on the need for a written notice of the employer’s decision.
(3) The majority opinion cites the rule in statutory construction that in case of discrepancy between the basic law and its implementing rules, the basic law prevails. In the case at bar, said principle does not apply because precisely there is no clear-cut discrepancy between Art. 277(b) of the Labor Code and Sec. 2(b), Rule XXIII, Implementing Rules of Book V of the Labor Code. To the extent of being repetitive the phrase “ample opportunity to be heard” can be construed to cover an actual hearing. This way, Sec. 2(b), Rule XXIII does not conflict with nor contravene Art. 277(b).
(4) Art. 4 of the Labor Code states that “all doubts in the implementation and interpretation of the provisions of [the Labor Code], including its implementing rules and regulations, shall be resolved in favor of labor.” Since the law itself invests the Department of Labor and Employment (DOLE) the power to promulgate rules and regulations to set the standard guidelines for the realization of the provision, then the Implementing Rules should be liberally construed to favor labor. The Implementing Rules, being a product of such rule-making power, has the force and effect of law. Art. 277 of the Labor Code granted the DOLE the authority to develop the guidelines to enforce the process. In accordance with the mandate of the law, the DOLE developed Rule I, Sec. 2(d) of the Implementing Rules of Book VI of the Labor Code which provides that:
(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.
In any case, the standards of due process contained 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 and provisions of the Labor Code. The Implementing Rules merely encapsulates a vague concept into a concrete idea. In what forum can an employer provide employees with an ample opportunity to be heard and defend themselves with the assistance of a representative? This situation can only take place in a formal hearing or conference which the Implementing Rules provides. The employees may only be fully afforded a chance to respond to the charges made against them, present their evidence, or rebut the evidence presented against them 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.
(5) In addition, the hearing or conference requirement in termination cases finds support in the long standing jurisprudence in Ang Tibay v. Court of Industrial Relations, wherein we declared that the right to a hearing is one of the cardinal primary rights which must be respected even in cases of administrative character. We held:
There are cardinal rights which must be respected even in proceedings of this character. The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented.
This Court has recognized even the right of students to a summary proceeding, in which (a) the students must be informed in writing of the nature and cause of any accusation against them; (b) they shall have the right to answer the charges against them, with the assistance of counsel, if they so desire; (c) they shall be informed of the evidence against them; (d) they shall have the right to adduce evidence in their own behalf; and (e) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.
If administrative cases recognized that the right to a hearing is a “cardinal primary right” and students are afforded the opportunity to defend themselves by allowing them to answer the charges through their counsel and by adducing their evidence to rebut the charges, what more for employees or laborers in the private sector who are specifically protected by the Constitution’s social justice provision? It would be unjust to the laborers if they are not afforded the same chance given to students or even to employees in administrative cases.
(6) Removing the right of employees to a hearing prior to termination would deprive them the opportunity to adduce their evidence. Notice can be taken of the limited opportunity given to the employees by the directive in the first written notice that embodies the charges. More often than not, the directive is only for the employees to explain their side without affording them the right to present evidence. Furthermore, a hearing gives employees the chance to hire the services of counsel whose presence is beneficial to employees during hearings because the counsel knows the intricacies of the law and the strategies to defend the client––something with which a lay person is most assuredly not familiar. A mere first notice is not sufficient enough for employees to assemble evidence for their defense. Most often, the first notice merely serves as or is limited to a general notice which cites the company rules that were allegedly violated by the employees without explaining in detail the facts and circumstances pertinent to the charges and without attaching the pieces of evidence supporting the same. Lastly, the holding of an actual hearing will prevent the railroading of dismissal of employees as the employers are obliged to present convincing evidence to support the charges. All in all, the advantages far outweigh the disadvantages in holding an actual hearing.
(7) The indispensability of a hearing is advantageous to both the employer and the employee because they are given the opportunity to settle the dispute or resort to the use of alternative dispute resolution to deflect the filing of cases with the NLRC and later the courts. It is important that a hearing is prescribed by the law since this is the best time that the possibility of a compromise agreement or a settlement can be exhaustively discussed and entered into. During this hearing, the relations of the parties may not be that strained and, therefore, they are more likely receptive to a compromise. Once dismissal is ordered by the employer, the deteriorated relationship renders the possibility of an amicable settlement almost nil. Thus, a hearing can help the parties come up with a settlement that will benefit them and encourage an out-of-court settlement which would be less expensive, creating a “win-win” situation for them. Of course the compromise agreement, as a product of the settlement, should be subscribed and sworn to before the labor official or arbiter.
(8) Recent holdings of this Court have explained the propriety and necessity of an actual hearing or conference before an employee is dismissed. In King of Kings Transport, Inc. v. Mamac, reiterated in R.B. Michael Press v. Galit, we explained that the requirement of a hearing or conference is a necessary and indispensable element of procedural due process in the termination of employees, thus:
To clarify, the following should be considered in terminating the services of employees:
(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.
(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.
(9) Lastly, a liberal interpretation of Art. 277(b) of the Labor Code would be in keeping with Art. XIII of the Constitution which dictates the promotion of social justice and ordains full protection to labor. The basic tenet of social justice is that “those who have less in life must have more in law.” Social justice commands the protection by the State of the needy and the less fortunate members of society. This command becomes all the more firm in labor cases where security of tenure is also an issue. In Rance v. NLRC, we declared that:
It is the policy of the state to assure the right of workers to “security of tenure” (Article XIII, Sec. 3 of the New Constitution, Section 9, Article II of the 1973 Constitution). 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 (Bundoc v. People’s Bank and Trust Company, 103 SCRA 599 ). Dismissal is not justified for being arbitrary where the workers were denied due process (Reyes v. Philippine Duplicators, Inc., 109 SCRA 489 ) and a clear denial of due process, or constitutional right must be safeguarded against at all times, (De Leon v. National Labor Relations Commission, 100 SCRA 691 ).
Between an employer and an employee, the latter is oftentimes on the losing or inferior position. Without the mandatory requirement of a hearing, employees may be unjustly terminated from their work, effectively losing their means of livelihood. The right of persons to their work is considered a property right which is well within the meaning of the constitutional guarantee. Depriving employees their job without due process essentially amounts to a deprivation of property without due process.
We have applied social justice even to cases of just dismissal to grant equitable relief to laborers who were validly dismissed. We also termed social justice as “compassionate” justice. Thus, the State should always show compassion and afford protection to those who are in most need––the laborers. Knowing that poverty and gross inequality are among the major problems of our country, then laws and procedures which have the aim of alleviating those problems should be liberally construed and interpreted in favor of the underprivileged. Thus, social legislations, such as the Labor Code, should be liberally construed to attain its laudable objectives.
PRESBITERO J. VELASCO, JR.