THIRD DIVISION
G.R. No. 109714 December 15, 1997
BETTER BUILDINGS, INC., WILLIAM WARNE and LEDA BEAVERFORD, petitioners,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION, HALIM YSMAEL and ELISEO FELICIANO, respondents.
Separate Opinions
PANGANIBAN, J., concurring and dissenting:
To justify the dismissal of an employee, the employer has the burden of proving two things: (1) that the termination was due to a valid and just cause as provided by law; and (2) that the dismissed employee was accorded due process, i.e. notice and opportunity to be heard prior to dismissal.
In the case at bar, I concur with Mme. Justice Flerida Ruth P. Romero that:
1. There was a valid and just cause to dismiss Respondent Eliseo Feliciano for willful breach of trust — a ground for termination of employment under Art. 282 (c) of the Labor Code; and
2. Petitioner-employer failed to accord respondent-employee his constitutional right to due process.
However, I respectfully dissent from the majority's ruling that the violation of private respondent's right to due process entitled him only to a simple indemnity or nominal damages and to nothing else.ℒαwρhi৷
Wenphil's Factual Milieu
Not Identical to Present Case
I am fully aware that in a long line of cases starting with Wenphil Corporation vs. NLRC, 1 the Court has held that where there is just cause for an employee's dismissal but the employer fails to follow the requirements of procedural due process, the employee is not entitled to backwages and reinstatement (or separation pay in case reinstatement is no longer feasible) or other benefits. Instead, he is granted an indemnity (or penalty or damages) ranging from P1,000 2 to as much as P10,000, 3 depending on the circumstances of the case and the gravity of the employer's omission.
Since then, Wenphil was perfunctorily applied in most subsequent cases 4 whenever due process was violated (although just cause was duly proved) without regard to the peculiar factual milieu of such cases. Hence, indemnity or damages became an easy substitute for due process.
Be it remembered, however, that in Wenphil, the facts were such as to show the impracticality, if not awkwardness, of observing the procedure laid down by law for terminating employment. There, the employee involved, who appeared to have a violent temper, caused trouble during office hours. In an altercation with a co-employee, he "slapped [the latter's] cap, stepped on his foot and picked up the ice scooper and brandished it against the latter." When summoned by the assistant manager, the employee "shouted and uttered profane words" instead of giving an explanation. Under the circumstances obtaining, swift action was necessary to preserve order and discipline as well as to safeguard the customers' confidence in the employer's business — a fast-food chain catering to the general public where courtesy is a prized virtue.
In most of the succeeding cases, however, there was ample opportunity for the employer to observe the requisites of due process. There were no exigencies that called for immediate response. And yet, there was instant invocation of Wenphil and the brushing aside of due process.
Due Process Blatantly
Disregarded Here
In the present case, petitioner could have given prior notice and hearing to private respondent. But the former flagrantly disregarded the employee's right, Private respondent was not even furnished the basic notice of discharge. Worse, he was not given any chance at all to present his defense. No due consideration was given the wrenching fact that Feliciano had already been in petitioners' employ for more than twenty (20) years. All that he was simply shown was a memorandum — not even addressed to him but to the guard on duty — which advised that private respondent should thenceforth not be allowed entry to the company's premises due to his termination. A more blatant disregard of due process is simply inconceivable.
While in Kwikway Engineering Works vs. NLRC 5 and Pepsi-Cola Bottling Co. vs. NLRC, 6 the Court — in elegant language — declared the failure to observe due process to be violation of the Constitution itself and, in no uncertain terms, condemned the judgment of dismissal reached by management in its absence as "void and non-existent," we have continued to impose upon the erring employer the simplistic penalty of paying indemnity to the illegally dismissed employee. True, in some cases, the amount of indemnity or damages has been increased to P5,000 7 and to as much as P10,000, as in Reta vs. NLRC 8 where the employee was given his walking papers and forced to leave his ship in a foreign port. Still, I believe that the infringement of the right to due process deserves a stiffer penalty. The price that the Court has set is too insignificant, too niggardly, and sometimes even too late a sanction for the violation of a sacred right. To this prevailing rule of granting only indemnity and nothing else, I have already expressed my reservations in the earlier case of MGG Marine Services, Inc. vs. NLRC 9 which, unfortunately, was not the proper vehicle for a radical modification of the doctrine. With all due respect, I now submit that the application of this indemnity-only doctrine, which has effectively watered down respect for due process to meaningless lip service, must be modified.
Employer Liable for
Separation Pay and Indemnity
Hence, I propose that — as a rule — where due process is violated, the dismissal should still be condemned as illegal even if the cause for the termination is legally justified. And the employer should be made to pay not only indemnity or nominal damages but likewise separation pay. I would concede that reinstatement will no longer be proper, because there is just and valid cause for dismissal, and thus, it would be unconscionable to force and employer to retain the erring employee in his service. This would be derogatory to the discipline and management prerogatives of the employer. I would also concede against payment of backwages, because a worker who commits a malfeasance or any act giving rise to loss of trust and confidence necessarily forfeits his right to continue working in the same company. Consequently, he is not entitled to wages for the period in which he did not render any service.
In fact, the Court veered towards this rule when in Worldwide Papermills, Inc. vs. NLRC, 10 it deemed the grant of separation pay as "equitable, even if the employee's termination of employment was justified." The employee therein was, within a span of almost six years, repeatedly admonished, warned and suspended for incurring excessive unauthorized absences. Such conduct, we said, undoubtedly constitutes gross and habitual neglect of duties, a ground for termination of an employment under Art. 282 of the Labor Code. Prior to his dismissal, he was still required to explain why no disciplinary action should be imposed upon him for his excessive absences without official leave. But in terminating his services, the company did not afford him any hearing. For this infraction of the due process requirements, the employer was ordered to indemnify the dismissed employee in the amount of P5,000. In addition, it granted separation pay of one-half monthly salary for every year of service. After this award of separation pay plus indemnity in Worldwide, the Court in subsequent cases, reverted to the indiscriminate application of the indemnity-only ruling in Wenphil.
Separation Pay Not a Reward
to Employee, but a Penalty for
Employer's Disregard of Due Process
I must stress, though, that the grant of separation pay to the dismissed employee is not so much to reward him despite the valid cause of his separation, but not impose an additional penalty to the employer for palpable disregard of a basic constitutional right. This is the only way to emphasize to employers the extreme importance of due process in our democratic system. It is so sacred a right that it cannot be taken for granted or glossed over in a cavalier fashion. To hold otherwise, as by simply imposing an indemnity of minimal amount, would be to allow a virtual purchase of a fundamental right by the rich and powerful, thereby enabling them to stifle a constitutional right granted in favor of the poor and the marginalized.
It may be asked: If the employee is guilty anyway, what difference would it make if he is fired with or without due process? By the same token, it may be asked if in the end, after due hearing, a criminal offender is found guilty anyway, why not just penalize him immediately and dispense with the trouble and expense of trial? The absurdity of such argument is too apparent to deserve further discourse.
Denial of Due Process
a Denial of Justice
In the final analysis, what is involved here is not simply amounts of monetary award, whether insignificant or substantial, whether termed as indemnity, penalty, damages or separation pay. Neither is it merely a matter of respect for workers' rights or adequate protection of labor. The bottom line is really the constitutionally granted right to due process. And due process is the very essence of justice itself. Where the rule of law is the bedrock of our free society, justice is its very lifeblood. Denial of due process is thus no less than denial of justice itself.
Contrary to popular misimpression, justice is dispensed not just by the courts and quasi-judicial bodies like public respondent here. The administration of justice begins with each of us, in our everyday dealings with one another and, as in this case, in the employers' affording their employees the right to be heard. If we, as a people and as individuals, cannot or will not deign to act with justice and render unto everyone his or her due in little, everyday things, can we honestly hope and seriously expect to do so when it involves monumental, life-or-death issues? Unless each one is committed to a faithful observance of day-to-day fundamental rights, our ideal of a just society can never be approximated, not to say attained.
Summary
In sum, I believe that where there is a valid cause for termination but due process is absent, the dismissal should still be branded as illegal. However, the employer cannot be forced to reinstate the employee as the latter has proven himself to be unfit for the job. In lieu of reinstatement, separation pay should be granted. Likewise, no backwages are due, because the employee did not deserve to continue working. Instead, indemnity or nominal damages should be paid. Nominal damages and separation pay in this instance are not rewards for the employee; rather, they are sanctions for the deprivation of due process. I should add that the employer will have the burden of proving why procedural due process could not be afforded the employee.
On the other hand, where the employer can prove that, under the peculiar circumstances of the case, there was no opportunity to comply with due process requirements, or to do so would be impractical or gravely adverse to the employer, then the dismissal would not be illegal and no award can properly be granted. Nevertheless, as a measure of compassion, the employee could be given a nominal sum depending on the circumstances.
WHEREFORE, I vote to PARTIALLY GRANT the petition. Private Respondent Eliseo Feliciano should be AWARDED (1) separation pay equivalent to one-half month pay for every year of service, plus (2) nominal damages or indemnity in the amount of P5,000.
Footnotes
1 170 SCRA 69, February 8, 1989, per Gancayco, J.
2 In Wenphil Corp. vs. NLRC, ibid.; Sampaguita Garments Corp. vs. NLRC, 233 SCRA 260, June 17, 1994; Villarama vs. NLRC, 236 SCRA 280, September 2, 1994; Rubberworld (Phils.), Inc. vs. NLRC, 183 SCRA 421, March 21, 1990; Kwikway Engineering Works vs. NLRC, 195 SCRA 526, March 22, 1991, and several other cases.
3 In Reta vs. NLRC, 232 SCRA 613, May 27, 1994; and Alhambra Industries, Inc. vs. NLRC, 238 SCRA 232, November 18, 1994.
4 Seashore Maritime Corp. vs. NLRC, 173 SCRA 390, May 15, 1989; Rubberword (Phils.), Inc. vs. NLRC, supra; Cariño vs. NLRC, 185 SCRA 177, May 8, 1990; Great Pacific Life Assurance Corp. vs. NLRC, 187 SCRA 694, July 23, 1990; Cathedral School of Technology vs. NLRC, 214 SCRA 551, October 13, 1992; Aurelio vs. NLRC, 221 SCRA 432, April 12, 1993; Sampaguita Garments Corp. vs. NLRC, 233 SCRA 260, June 17, 1994; Villarama vs. NLRC, supra, Manuel vs. N.C. Construction Supply, G.R. No. 127533, November 28, 1997.
5 Kwikway, supra, per Medialdea, J.
6 210 SCRA 277, June 23, 1992, per Gutierrez Jr., J.
7 In Cariño vs. NLRC, supra; MGG Marine Services, Inc. vs. NLRC, 259 SCRA 644, July 29, 1996.
8 Supra.
9 Supra, note 18, p. 679.
10 244 SCRA 125, May 12, 1995, per Padilla, J.
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