agabon vs nlrc dissent

8/3/2019 Agabon vs NLRC Dissent

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Agabon vs NLRC (Nov 17, 2004)

Dissenting Opinion: Puno.(he also dissented in Wenphil and Serrano)

Wenphil - dismissal of a fast food chain crew member for a just causeis valid even if without notice, but was given a P1000 indemnity (a“measly sum”) – BADSerrano – failure of employer to give the two notices is not a denial of

due process but “a mere failure to observe a procedure for thetermination of employment which makes the termination of employment merely ineffectual.” Backwages were awarded (“crumbs”)– WORSE Agabon – this is now only “a tiny bit of grain” – WORST

Puno: - We must return to the pre-Wenphil era!- not following due process (DP), even when there is just cause,

should make the dismissal ILLEGAL

Arguments:

1) Our constitution is an ode to social justiceSocial Justice (SJ)– “that virtue by which individuals andgroups fulfill their obligations to human society by contributingpositively to the complete well-being of their fellowmenconsidered as members of that society, and hence regulate alltheir actions accordingly.”1935 Consti – SJ is already included

Delegate Locsin – SJ is justice to the “common tao” , the“little man”

Art II (Decl. of Principles) Sec 5 -- about SJArt XIII (General Provisions) Sec 6 – about labor(related cases: Ang Tibay vs CIR, Antamok Goldfields vs

CIR, Calalang vs Williams)1973 Consti – in Art. II (Dec. of Principles and State Policies),Sec 6 is about SJ, Sec 9 is protection of labor

Since labor is previously in the General Provisions only,elevating it means it is very significant1987 Consti – SJ is now in a whole article (Art XIII) and labor isnow a full section (Art XIII Sec 3)

We also have Art II Secs 9 and 18 There is also the Labor Code and the Implementing Rules (Art3, Art 211) and BP Blg 70 and RA 6715

2) Courts at all times should give meaning and substanceto constitutional postulates in favor of the workingmanSee Consti Art II Sec 9, 10, 18

Art XIII Sec 3- “SJ should be a living reality and not a mere high level

abstraction”- consti must be read as a whole, not only the due process

clause

- consti protects SJ and labor. “These substantive rights arenot to be weakened by a diminished procedural right. For inweakening the procedure, we weaken the substantiveright”

3) The constitution puts the employee on equal footingwith his employer

- Employee is usually poor and unlettered. Employer can getgood legal services. Playing field is not level. So law mustbe more strict on the employer. SJ here would not beequality but protection.

4) This Court has long extended constitutional DP in laborcases involving private action

- Pre-Wenphil – the rule is: an employer can validly dismissan erring employee ONLY after giving him notice and

hearing. So non-compliance with Sec 2 and 3, Rule XIV,Book V of the IRR of the Labor Code (requiring a DOLEclearance before terminating employees) would render thetermination illegal.

- But in Aug 1981, BP Blg. 130 now removed this clearancerequirement and instead required prior notice and finalinvestigation before termination. If these were not compliedwith, dismissal would be illegal, and reinstatement orseparation pay is required

- (note also the 7 requirements of Ang Tibay )

- Constitutional DP as applicable only to government actiononly and not to private action is now already passé.

There’s US proof for this. These are now not novel ideas butthe evolution of the laws

5) An employee who is denied procedural DP is entitled toreinstatement. Nothing less.

- It has always been this way until Wenphil. To upholdWenphil, Serrano and now Agabon, is to dilute theconstitutional protection of labor.

6) Compliance with procedural DP is not a burden onemployers.

- See Sec. 2 Rule XXIII (Termination of Employment), Book V

(Labor Relations), and Sec 2, Rule 1 (Termination of



Employment and Retirement), Book VI (Post-Employment)Omnibus Rules Implementing the Labor Code

- So, in cases of dismissal based on just causes (LC 282), theemployer must give 2 simple notices

1) Notice before dismissal to apprise the employeebeing dismissed of the particular acts or omissions forwhich the dismissal is sought

2) Subsequent notice to inform him of theemployer’s decision to dismiss him

- And in cases of dismissal for authorized causes (LC 282)o The employer must serve an uncomplicated written

notice on the worker and on the DOLE at least 1month before the intended closure of theestablishment or reduction of personnel

- The right of an employer to dismiss an employee differsfrom and should not be confused with the manner in whichsuch right is exercised. These should be exercises withoutabuse of discretion

- Dismissal without DP debases human dignity. It isincumbent upon the employer to conduct a formalinvestigation and inform the employee of the specific

charges against him. Even criminals are allowed to explainthemselves in court, so why can’t employees?

7) In the hierarchy of rights of an employee, the right tosecurity of tenure is high, if not the highest- See again Consti Art XIII Sec 3- All other rights merely complement the right to job security.

All these complementary rights are meaningless to a jobless person

8) Workers need more work than anything else.- “Work is a defining feature of human existence”

o While there’s work, there’s food on the table

o Through work, a person can express himself,

develop his skills

9) To simply allow payment of nominal damages forviolation of employee’s right to DP is to give undueadvantage to employers- Consti provides more rights to employees than employers- This is to equalize the fight of the underprivileged against

the overprivileged- “the deprivation of the right to security of tenure and DP is

beyond monetary valuation”

- Agabon is far worse than Serrano. At least in Serrano, he

was awarded 63 months of backwages. Here, it was onlyP30,000.

- “An employee may not have a torrens title to his job but itis not too much to require that before he is dismissed by hisemployer, he should be given a simple notice of the causeof his dismissal and a summary hearing to present hisside.”

HIS VOTE: reinstate both petitions, without loss of seniority rights andother privileges, with full back wages, and the reversion to the pre-Wenphil doctrine in resolving future labor cases

Separate Dissenting Opinion: Panganiban(he disagrees with the majority because it aggravates the rights of ourwork force, and diminishes respect for DP)

- The notice requirement is based not only in Labor Code butalso DP clause in Consti

- So when an employee is dismissed without DP, the legaleffect is an illegal dismissal. Employee must be reinstatedplus paid full back wages. Jurisprudence says that whenprocedural DP is violated, the proceedings shall be voidedand the parties returned to their status quo ante. That

means, the employee must be given back his old job andpaid all benefits as if he has never been dismissed.

- Illegal dismissal is not only due to absence of legal cause(LC 282-284) but also failure to observe due process

- Panganiban insists that such dismissals should be declaredillegal and unconstitutional and the worker should bereinstated without loss of seniority rights and benefits PLUSfull back wages

Exception to DP sanctions

- When a case is analogous to Wenphil, and it would beimpractical to reinstate the employee. The employee there

(a fast food chain crew) had a violent temper, and exhibitedthis in front of his co-workers and the customers- In this case, there was ample opportunity to follow DP- we must impose stiffer sanctions- a careful reading of the Bill of Rights shows that the DP is

not for government action alone.- “Elementary is the doctrine that constitutional provisions

are deemed written into every statute, contract orundertaking.”

“In the final analysis, what is involved here is not simply the amount of monetary award—whether insignificant or substantial; whether termedas indemnity, penalty, separation pay or full back wages. Neither is the

subject here merely a matter of respect for worker’s rights or adequateprotection of labor. The bottom line is the constitutionally granted right



to due process, which is the very essence of justice itself. Where therule of law is the bedrock of our free society, justice is its verylifeblood. A denial of due process is thus no less than a denial of justiceitself.”

HIS VOTE: petitioners should be reinstated without loss of seniorityrights and other privileges, plus full back wages from the date of termination until actual reinstatement.

Separate Opinion: TINGA.Concur in the result.

On Abandonment- Both NLRC and CA fond that petitioners abandoned their

work and there was proof. LA’s contrary finding has noproof

On Notice Requirement- CA and NLRC failed to see that the company did not comply

with the rules on notice- But Sec2 Book V Rule XXIII of the Implementing Rules DOES

NOT require strict compliance, but only that the same be“substantially observed”

- The company did send letters to petitioners. But eventhough the letters were only to tell the petitioners to goback to work, to Tinga, it is sufficient as a first notice. Italready notified the petitioners that they committed an“offense” against the company.

- Those letters were also sent to their last known address inthe company files, as what is required by law. It does notmatter whether they received it or not

- The company’s actual violation was the failure to send the2nd notice (the actual termination letter) on the petitioner’slast known address. Even if, as the company argued, itwould be useless to send that letter because the petitionershave already moved out, that is not an excuse for notsending the 2nd notice.

- The 2nd notice is important because it’s a proof of loss of employment

Constitutional Law dimension:- Tinga disagrees with Puno and Panganiban’s votes to

reinstate petitioners

- VV Mendoza, J. in Serrano:o 3 reasons why failure to send notice is NOT a denial

of DP which would annul the dismissal of an

employee

1) Constitutional DP is only limited togovernment action

2) The notice is not to notify the employee of atrial, but to give him time to prepare for theloss of his job

3) The employer is not impartial, so this is notexactly DP

- People vs. Marti: BOR is against the State, not privateindividuals

- So… constitutional DP is only against the State- Puno’s US theories on DP as applying not only to State are

still theories, not yet adopted by the legislature or jurisprudence here in the Philippines

- There are a lot of laws and statutes for seeking reliefsagainst private entities.

- The state and employees are very different. Employersseek profit.

- YES, SC should not be blind to the employers’ abusivepractices. But… “the remedy to rightward judicial bias isnot leftward judicial bias. The more proper judicial attitudeis to give due respect to legislative prerogatives, regardless

of the ideological sauce they are dipped in.”- Using BOR in everything would give rise to absurd

constitutional claims on everything!- “we must avoid overarching declarations in order to justify

an end result beneficial to labor.” If BOR would be usedagainst private entities, then everyone would be too fearfulto act lest they violate the consti.

Constitutional Protection of Labor1987 Consti: Art II Sec 18, Art XIII Sec 31973 Consti: Art II Sec 91935 Consti: Art XIV Sec 6 (security of tenure was not yet aconstitutional right)- But even though there are all these provisions protecting labor,

the SC still affirmed dismissals for just cause but without validnotice

- So all these notice violations were statute-based (i.e. LaborCode), not consti-based

- 1987 Consti also recognizes the principle of shared responsibilitybetween workers and employers

- Manila Prince Hotel vs. GSIS: all constitutional provisions areself-executing

- But if you consider this literally, then there’d be a blanketprovision on labor against any form of removal regardless of circumstance. So we still need legislation to clarify things

- So… “Sec 3 Art XIII cannot, on its own, be a source of a positiveenforceable right to stave off the dismissal of an employee for



just cause owing to the failure to serve proper notice orhearing.”

- Yes SJ consti provisions are self-executing. But there is the rulethat provisions should be deemed self-executing if they areenforceable without further legislative action.

- Now, LC is the one carrying out this constitutional directive (SeeLC Chap 1 Art 3)

- The validity of an employee’s dismissal is measured in thestandards in Art 279, 282, in rel to 277(b) and 283.

- “It should be recognized that dismissals for just cause anddismissals for authorized cause are governed by differentprovisions, entail divergent requisites, and animated by distinctrationales. The language of Article 283 expressly effects thetermination for authorized cause to the service of written noticeon the workers and the Ministry of Labor at least one (1) monthbefore the intended date of termination. This constitutes aneminent difference than dismissals for just cause, wherein thecausal relation between the notice and the dismissal is notexpressly stipulated. The circumstances distinguishing just andauthorized causes are too markedly different to be subjected tothe same rules and reasoning in interpretation.”

- And since this case is only about dismissal for a just cause, anypronouncements regarding authorized causes would only beobiter .

- There is no express provision in the LC that voids a dismissal for just cause on the ground that there was no notice or hearing. LC279 says that if you have just cause alone, then termination isvalid. LC 282 defines just cause, and DOES NOT condition thetermination on the service of written notices.

- If there’s a failure to comply with DP requirements of notice andhearing, then employee may sue for an actionable claim againstthe employer under LC 288.

- Reinstatement despite termination for just cause is NOT

authorized by LC. This is to protect the employer’s right todismiss an employee for just cause.

- “ just causes for termination are NOT negated by the absence of notice or hearing.”

- “if a dismissed employee is deprived of the right to notice andhearing, and thus denied the opportunity to presentcountervailing evidence that disputes the finding of just cause,reinstatement will be valid not because the notice and hearingrequirement was not observed, but because there was no justcause in the dismissal.”

- “mutual infliction of wrongs does not negate either injury, butinstead enforces two independent rights of relief.”

On Damages

- On backwages: LC 279 only authorizes payment of backwages ONLY is the employee is unjustly dismissed. If the employee was dismissed for a just cause, then there isno need to pay backwages

- Vitug, sep.op. in Serrano: an employee who was terminatedfor a just cause is NOT entitled to separation benefits.Separation benefits are paid as an alternative toreinstatement and ONLY for dismissals for authorizedcauses (LC 283, 284). But Sec 7 Rule 1 Book VI of theOmnibus Rules Implementing the Labor Code says thatwhen an employee is terminated for a just cause, he is NOTentitled to termination pay.

- On equity payments: before, SC awarded separation paybased on SJ for terminated employees, but the employeesthere are not guilty of serious misconduct. Here, petitionersabandoned their work. This is serious misconduct.

- The Court’s practice of awarding separation pay as ameasure of social justice (ex. Wenphil, Serrano) emanatesfrom “equity jurisdiction.” But this has no statutorybasis, no standards, no anything.

- On LC 288 : this is a penal provision, for violating LCprovisions. So it may be the employer, employee, or anyoneimplementing the LC who may be penalized. And since thisis a penal provision, there must be a criminal case on aproper court, and the penalty must be imposed at thecourt’s discretion. So LC 288 cannot be applied in this caseas a basis for making the company pay a penalty. There isalso no saying that the penalty has to be paid to theemployee. This provision is for the State to ensure that itslaws are complied with, not serve as a basis to compensateprivate persons.

- Since Wenphil did not state any statutory basis for theindemnity award, it is unwise to reinstate this rule.

- “The proper legal basis for holding the employer liable formonetary damages to the employee dismissed for justcause is the Civil Code. The award of damages should bemeasured against the loss or injury suffered by theemployee by reason of the employer's violation or, in caseof nominal damages, the right vindicated by the award. Thisis the proper paradigm authorized by our law, and designedto obtain the fairest possible relief.” An employer-employeerelationship is still basically a relationship between privateindividuals, even though there is a lot of public interestinvolved.



Standards to guide the proper award of damages under the Civil Codein cases wherein the employer failed to comply with statutory due process in dismissals for just cause:

1) “failure to comply with the statutory requirement of noticeautomatically gives rise to nominal damages, at the very least,even if the dismissal was sustained for just cause.”

2) “Actual or compensatory damages are not available as amatter of right to an employee dismissed for just cause butdenied statutory due process. They must be based on clear

factual and legal bases, and correspond to such pecuniary losssuffered by the employee as duly proven. Evidently, there isless degree of discretion to award actual or compensatorydamages.”

3) “If there is a finding of pecuniary loss arising from the employerviolation, but the amount cannot be proved with certainty, thentemperate or moderate damages are available under Article2224 of the Civil Code. Again, sufficient discretion is afforded tothe adjudicator as regards the proper award, and the awardmust be reasonable under the circumstances.”

4) “Moral and exemplary damages may also be awarded in theappropriate circumstances.”

Here, there is no proof to justify the ward of actual or compensatorydamages to the petitioners, since there seems to be no injury causedby the failure to serve the 2nd notice. But nominal damages may beawarded in the amount of P15,000.

HIS VOTE: affirm CA. Company to pay P15,000 nominal damages topetitioners. “Hold that henceforth, dismissals for just cause may not beinvalidated due to the failure to observe the due process requirementsunder the Labor Code, and that the only indemnity award available tothe employee dismissed for just cause are damages under the CivilCode as duly proven. Any and all previous rulings and statements of the Court inconsistent with this holding are now deemed

INOPERATIVE.”

(haha I am so deads. :P)

agabon vs nlrc dissent

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