Republic of the Philippines


G.R. No. 170661               December 4, 2009




Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to set aside the Decision1 and the Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 57528, which affirmed with modification the Resolutions rendered by the National Labor Relations Commission (NLRC), Second Division, dated October 19, 19993 and December 21, 1999,4 respectively, in NLRC NCR CA 010480-96.

Petitioner Ramon B. Formantes was employed as a medical representative by respondent Duncan Pharmaceuticals, Phils., Inc. on September 1, 1990. He later became the Acting District Manager of respondent for the Ilocos District.

On March 18, 1994, petitioner received a long distance call from Rey Biscaro, Regional Sales Manager of respondent, asking him to report at the head office on March 21, 1994. Thereafter, petitioner went to the head office and was confronted by said Mr. Biscaro and Emeterio Shinyo, Marketing and Sales Director, due to his attempt to sexually force himself upon his subordinate Cynthia Magat, one of the medical representatives of respondent company. Petitioner and Ms. Magat separately related their sides of the incident to the respondent company’s officers. Petitioner was then compelled by respondent to take a leave of absence.

Thereafter, Biscaro tried to induce petitioner to resign, which the latter refused. Petitioner's salary was then withheld from him. He was not allowed to attend the meetings and activities of the company. His subordinates no longer reported to him and the company directed one of its district managers to take over his position and functions without prior notice to him. Due to the foregoing, petitioner was constrained to file a case for illegal suspension, constructive dismissal, payment of salaries, allowances, moral and exemplary damages on April 13, 1994 before the NLRC, Regional Arbitration Branch No. I, San Fernando, La Union.

On April 19, 1994, petitioner received a telegram from Lelet Fernando of the Human Resources Department (HRD), advising him to report to the respondents' head office. Petitioner advised her and Biscaro that he has not received his salary and reimbursements for incurred expenses. He also informed them that he had already filed a case for constructive dismissal against the respondent company.

On April 25, 1994, petitioner received a telegram5 dated April 22, 1994 from respondent, advising him that his reasons for not reporting were unacceptable, and ordering him to report to the office in the morning of April 25, 1994. Petitioner was not able to report due to time constraints, as it was physically impossible for him to report on the very same day that he received the telegram ordering him to do so. Thereafter, respondent sent several letters to petitioner. These letters, among others, include the following: letter6 charging him of grave misconduct on the attempted sexual abuse upon the person of Ms. Cynthia Magat, and directing him to submit his written explanation thereon; letter7 recalling the company car issued to him; letter8 informing him of violation of Rule IV.5.a of the respondent's company rules by failing to turn over the company car, and directing him to explain in writing why no further disciplinary action should be given to him; letter9 suspending him for one day for failure to carry out instructions, and ordering him to report to the company's head office; letter10 placing him under suspension without pay for eight days for failure to return the company car without explanation.

On May 19, 2004, petitioner received a letter11 dated May 18, 1994, terminating his employment with respondent company due to insubordination; for failure to report to the respondent company; for failure to submit the required operations report; and for failure to turn over the company car.

In the meantime, Executive Labor Arbiter (LA) Norma C. Olegario rendered a decision12 dated November 10, 1995, dismissing the complaint, finding that Formantes was validly dismissed for an attempt to sexually abuse Cynthia Magat, but imposing a penalty on respondent for its failure to give formal notice and conduct the necessary investigation before dismissing petitioner. The LA found that when the first written notice was sent to petitioner on April 25, 1994, regarding the incident with Cynthia Magat, petitioner had already been dismissed, or at least, constructively dismissed, because as early as March 23, 1994, he was no longer allowed to participate in the activities of the company and his salary was withheld from him. The LA directed the respondent to pay petitioner the amount of ₱1,000.00.

Dissatisfied with the Labor Arbiter's finding, petitioner appealed to the NLRC, on grounds of grave abuse of discretion; serious errors of law; and serious errors in the findings of facts, which, if not corrected, would cause irreparable damage to petitioner. Petitioner alleged that the LA erred in ruling that he was legally dismissed for sexual abuse, when the charge against him stated in the termination letter was insubordination.

The NLRC, Second Division, in its Resolution13 dated October 19, 1999 affirmed the findings of the LA. Petitioner filed a motion for reconsideration, which the NLRC denied in a Resolution14 dated December 21, 1999.

Undaunted, petitioner filed a petition for certiorari under Rule 65 with the CA, alleging that the NLRC gravely abused its discretion and acted in excess of its jurisdiction in affirming the decision of the Labor Arbiter that petitioner's dismissal from employment was justified on a ground not alleged in the notice of termination and not established by substantial evidence. Petitioner further alleged that the NLRC erred in not holding that petitioner was constructively dismissed by the respondent.

The CA, in its Decision dated July 18, 2005, affirmed the resolutions of the NLRC, but with the modification that the sanction imposed on respondent company for non-observance of due process be increased from ₱1,000.00 to ₱5,000.00.

Petitioner filed a Motion for Reconsideration, which the CA denied in a Resolution dated November 23, 2005. Hence, the instant petition assigning the following errors:




On the alleged deprivation of due process, petitioner alleged that he was not duly represented by a competent counsel, as Rogelio Bacolor, who represented him in the proceedings before the NLRC, was not a member of the bar, thereby depriving him of his right to due process. Hence, he prayed that the case be remanded to the LA for further proceedings.

We are not persuaded.

Records will show that aside from Mr. Bacolor, petitioner was represented by other lawyers at the commencement of the action before the NLRC and during the proceedings before the NLRC and the Court of Appeals.

Petitioner was duly represented by Atty. Jannette B. Ines in the filing of the Complaint,16 the Position Paper,17 and the Reply18 before the LA. He was also represented by the same Atty. Ines during the initial stage of the hearing before the NLRC.19 Further, although Mr. Bacolor appeared in the several stages of the hearing before the LA and filed petitioner's memorandum of appeal, he also retained the services of Guererro and Turgano Law Office, as collaborating counsel. Atty. Arnel Alambra of said law office filed a Supplemental Memorandum of Appeal20 and Reply21 to the respondent's answer to the Supplemental Memorandum of Appeal in petitioner's behalf. Thereafter, upon denial of the appeal by the NLRC, petitioner's motion for reconsideration22 was filed by Arnold V. Guerrero Law Offices, together with its battery of lawyers, which includes Atty. Arnold V. Guerrero, Atty. Ma. Josefa C. Pinza, Atty. Carmencita M. Chua and Atty. Ma. Loralie C. Cruz. Petitioner was also represented by said law office in the proceedings before the CA, more particularly during the filing of the Petition for Certiorari23 under Rule 65, the Reply24 and the Memorandum.25 Upon denial of the petition before the CA, petitioner was also represented by another law office in the name of Argue Law Office, which filed the petitioner's motion for reconsideration and the present petition before this court.

In fine, petitioner was fully represented by a barrage of competent lawyers. Thus, he cannot claim that he was deprived of due process of law.

In Rizal Commercial Banking Corporation v. Commissioner of Internal Revenue,26 this Court held that:

There is no question that the "essence of due process is a hearing before conviction and before an impartial and disinterested tribunal" but due process as a constitutional precept does not, always and in all situations, require a trial-type proceeding. The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one’s defense. "To be heard" does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. (Emphasis supplied.)1avvphi1

Further, in Fernandez v. National Labor Relations Commission,27 respondents failed to attend the hearing on the scheduled cross examination of the petitioner's witness. Due to the foregoing, the LA deemed the case submitted for resolution. Respondents claimed denial of due process due to non-reception of its evidence. On appeal, the NLRC vacated the LA's Order and remanded the case for further proceedings. The issue is whether the failure to attend hearings before the LA is a waiver of the right to present evidence. This court held that:

Private respondents were able to file their respective position papers and the documents in support thereof, and all these were duly considered by the labor arbiter. Indeed, the requirements of due process are satisfied where the parties are given the opportunity to submit position papers. In any event, Respondent NLRC and the labor arbiter are authorized under the Labor Code to decide a case on the basis of the position papers and documents submitted. The holding of an adversarial trial depends on the discretion of the labor arbiter, and the parties cannot demand it as a matter of right. In other words, the filing of position papers and supporting documents fulfilled the requirements of due process. Therefore, there was no denial of this right because private respondents were given the opportunity to present their side.

Taken altogether, although petitioner, during some parts of the trial proceedings before the LA was not represented by a member of the bar, he was given reasonable opportunity to be heard and submit evidence to support his arguments, through the medium of pleadings filed in the labor tribunals. He was also able to present his version of the Magat incident during his direct examination conducted by his lawyer Atty. Jannette Inez.28 Thus, he cannot claim that he was denied due process.

On the issue of petitioner's dismissal on another ground not alleged in the notice of termination, petitioner argued that the LA's justification for his dismissal on the ground of sexual abuse is not proper, as said ground is not alleged in the notice of termination. The notice of termination stated that petitioner was dismissed due to failure to report to the office; failure to submit reports; and failure to file written explanations despite repeated instructions and notices.

The argument is not meritorious.

In Rubberworld (Phils.), Inc. v. NLRC,29 we held that:

It is now axiomatic that if just cause for termination of employment actually exists and is established by substantial evidence in the course of the proceedings before the Labor Arbiter, the fact that the employer failed, prior to such termination, to accord to the discharged employee the right of formal notice of the charge or charges against him and a right to ventilate his side with respect thereto, will not operate to eradicate said just cause so as to impose on the employer the obligation of reinstating the employee and otherwise granting him such other concomitant relief as is appropriate in the premises. x x x

Although petitioner was dismissed from work by the respondent on the ground of insubordination, this Court cannot close its eyes to the fact that the ground of sexual abuse committed against petitioner's subordinate actually exists and was established by substantial evidence before the LA.

When petitioner filed the complaint for constructive dismissal on April 13, 1994, he was still unsure of the actual ground for his suspension and constructive dismissal. The very reason why he sought refuge in the labor tribunals was to ascertain the ground for his termination. In keeping with its duties, the LA, in order to ascertain the petitioner's cause for constructive dismissal, required the parties to submit their respective position papers and their respective replies thereto. After analyzing the pleadings submitted before her and the proceedings taken thereon, the LA made a finding that petitioner was validly dismissed due to the sexual abuse committed against his subordinate. However, the LA imposed a monetary penalty upon respondent for its failure to observe procedural due process.

The LA would be rendered inutile if she would just seal her lips after finding that a just cause for dismissal exists merely because the said ground was not stated in the notice of termination.

Contrary to petitioner's allegation, We hold that there exists substantial evidence to support the ground for his dismissal.

The findings of facts of quasi-judicial agencies, which have acquired expertise in the specific matters entrusted to their jurisdiction, are accorded by this Court not only respect but even finality if they are supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court, provides that in cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.30

After a meticulous review of the records, We find that the Decision of the LA, as affirmed by the NLRC and the CA, is supported by substantial evidence. The LA arrived at her decision after a careful consideration of all the facts and evidence on record.

The LA anchored her decision upon the Sworn Statement31 given by Cynthia Magat to the Mangaldan Police Station, dated April 14, 1994, to wit:

x x x x

06.Q. - You have stated that you were attempted (sic) by you boss, MR. RAMON B. FORMANTES, to sexually abuse you, will you relate briefly how the incident took place?

A. - That we have a meeting at about 10:30 o'clock in the morning of March 9, 1994 at the Maraman Office at Caranglaan, Dagupan City. After the meeting, we proceeded to my apartment at Anolid, Mangaldan, Pangasinan to get the data he (Mr. Formantes) was asking.

07.Q. - Upon reaching you apartment at Anolid, Mangaldan, what happened, if any?

A. - We entered the apartment and then while I was looking for the papers needed, he asked permission to see the apartment and so I showed him the lower portion. And then he asked again and wished to go upstairs, so I consented since he is [an] outstanding friend and my boss without any malice to him and we went upstairs.

08.Q. - Then, what happened, if any, when you were already upstairs of the apartment?

A. - That he went inside my room looking at my things. When I told him we better go downstairs since it is not proper got (sic) us to stay there because I am alone, he suddenly opened my closet without my permission. I closed the closet and as I persuading (sic) him to go downstairs, he started teasing me and holding my hands saying "Cheng, na-e-excite yata ako sa iyo." I resisted his touch and told him not to tease me that way. Then finally, we went downstairs and I started again to look for the papers I needed. As I was looking at my things, he suddenly went upstairs so I ran after him. I caught up with him at the door of my room. Then, he said, "Cheng, galing ako sa La Union pagod ako, pwede bang magpahinga? Since I trusted him and he is like a brother to me, I said yes. I turned on the electric fan and TV set and I went downstairs. Since it was hot, I decided to buy coke, after which I went upstairs with the coke and my MBS reports. When I entered the room, he was already wearing only his "kamiseta" since he said it was hot. I was trying to give him a shirt but he said he was comfortable that way. I gave him the coke and I asked him how to do my MBS reports. He taught me and after that when I decided to do my reports downstairs, he stopped and suddenly embraced me from behind and pulled me down to the bed.

09.Q. - And when you fell down on the bed, what did Mr. Ramon Formantes do, if any?

A. - Then, he said "Cheng, na-mimiss lang kita at ang barkada natin, palambing naman." I said that was not my idea of "lambing" and I resisted him. As I was getting up, he then pulled me again to the bed, this time he pinned me to the bed, he went on top of me and was asking for a kiss. He said, "Cheng isang kiss lang titigil na ako." I was shocked. And then he was trying to get in between my legs, but I kept on kicking him with my left leg. He was trying to get my mouth, but I kept on banging my face on the bed. By then, my face was full of his saliva, as he started kissing the right side of my face down to the neck. He then held my left buttock and held my lower jaw with his left hand. He squeezed my left buttock and started to put his tongue in my mouth. By now, I could not shout since he was kissing my mouth, but before he got my mouth I told him, "Monching, don't do this to me, you are my friend." He said "I'm also your boss." Since I was kicking him and pushing him, I was finally able to get away from him. When I stood up, I asked him "Bakit mo nagawa ito sa akin, kaibigan kita." He said, "Cheng, I'm sorry. Nadala lang ako." He told me not to tell this to Art, my counterpart in Baguio. Since I really wanted to get out of the house as fast as I could, so I just said, just don't do it again. We went out and he went to La Union."

The same Sworn Statement further provides that:

10.Q. - Was there any more incident that transpired after the one you have just related?

A - Yes, sir. On March 11, 1994, Friday, about 7:15 o’clock in the morning, Mr. Ramon Formantes arrived at my apartment saying he came from Manila. He asked me if he could sit down. I let him in and left the door open. Then he said, "May tao ba sa taas?" I told him there was none though my fiancee was upstairs. Then he started to hold my inner thigh saying, Cheng, maligo ka na hihintayin kita. I told him I'll just meet him at Nipa or Maraman. I was resisting his touch, but he kept on touching me and holding me at the back. Without my knowledge, my fiancee was seeing what was happening downstairs so he started to make noise and Monching heard this and he got scared and left. Then on March 18, 1994, Friday, Monching went to my apartment again at around 7:20 o'clock in the morning, but this time I did not let him in, I just opened the door a little. He got irritated with my defensiveness and left my place.

The evidence on record sufficiently supports the finding of sexual abuse against petitioner. In addition to her sworn statement to the police, she sufficiently narrated petitioner's attempt to sexually abuse her in her handwritten letter32 dated March 23, 1994 addressed to Reynaldo Biscaro. She also narrated the same incident in another letter33 addressed to the president of the union, Joel Soco.

It may be trite to point out that the findings of a trial court on the credibility of witnesses deserve great weight, given the clear advantage of a trial judge over an appellate justice in the appreciation of testimonial evidence.34 The LA, being in the position to observe the demeanor of both the petitioner and Ms. Magat during their testimony, gave more credence to the testimony35 of Ms. Magat. On the other hand, aside from his self-serving testimony, petitioner was not able to sufficiently contradict the charge of sexual abuse against him. Moreover, the courts usually give credence to the testimony of a woman who is a victim of sexual assault, because normally no woman would be willing to undergo the humiliation of a public trial and testify on the details of her ordeal if it be not to condemn an injustice.36

In Villarama v. National Labor Relations Commission,37 wherein a managerial employee committed sexual harassment against his subordinate, the Court held that sexual harassment is a valid cause for separation from service.

As a managerial employee, petitioner is bound by a more exacting work ethic. He failed to live up to this higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from over sexed superiors.

As a manager, petitioner enjoyed the full trust and confidence of respondent and his subordinates. By committing sexual abuse against his subordinate, he clearly demonstrated his lack of fitness to continue working as a managerial employee and deserves the punishment of dismissal from the service.

Aside from the findings of sexual abuse, petitioner is also guilty of insubordination. Records show that after filing a case for constructive dismissal on April 13, 1994 against the respondent, petitioner continued working and performing his functions with the respondent company until his termination on May 19, 1994.38 However, despite receipt of the various notices sent by respondent to him to report to the office and to submit written explanations relative to his failure to follow instructions, the records of the case are bereft of showing that he filed any written explanation to any of these notices. His continued failure to carry out the reasonable oral or written instructions of his supervisor is punishable by insubordination, which is provided under Rule IV.5.a of the Operational Instruction OI-A-AP25, Work Rules.39 While petitioner cannot be faulted in believing that respondent constructively dismissed him from work, he was still, strictly speaking, respondent's employee when he received the written notices. As an employee, he should have at least responded thereto, as instructed.

We now come to the issue of constructive dismissal.

Constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego with his continued employment.40

In the case at bar, petitioner, while still employed with the respondent, was compelled to resign and forced to go on leave. He was not allowed to participate in the activities of the company. His salary was no longer remitted to him. His subordinates were directed not to report to him and the company directed one of its district managers to take over his position and do his functions without prior notice to him.

These discriminatory acts were calculated to make petitioner feel that he is no longer welcome nor needed in respondent company − short of sending him an actual notice of termination. We, therefore, hold that respondent constructively dismissed petitioner from the service.

Despite this, however, it is impractical and unjust to reinstate petitioner, as there was a just cause for his dismissal from the service.

Thus, we hold the dismissal as valid, but we find that there was non-compliance with the twin procedural requirements of notice and hearing for a lawful dismissal.

Well settled is the dictum that the twin requirements of notice and hearing constitute the essential elements of due process in the dismissal of employees. It is a cardinal rule in our jurisdiction that the employer must furnish the employee with two written notices before the termination of employment can be affected: (a) the first apprises the employee of the particular acts or omissions for which his dismissal is sought; and (b) the second informs the employee of the employer’s decision to dismiss him.41

The barrage of letters42 sent to petitioner, starting from a letter dated April 22, 1994 until his termination on May 19, 1994, was belatedly made and apparently done in an effort to show that petitioner was accorded the notices required by law in dismissing an employee. As observed by the LA in her decision, prior to those letters, petitioner was already constructively dismissed.

Since the dismissal, although for a valid cause, was done without due process of law, the employer should indemnify the employee with nominal damages. In Agabon v. National Labor Relations Commission,43 we found that the dismissal of the employees therein was for valid and just cause because their abandonment of their work was firmly established. Nonetheless, the employer therein was held liable, because it was proven that it did not comply with the twin procedural requirements of notice and hearing for a legal dismissal. However, in lieu of payment of backwages,

we ordered the employer to pay indemnity to the dismissed employees in the form of nominal damages, thus:

The violation of the petitioners’ right to statutory due process by the private respondent 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. x x x. We believe this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.44

Nominal damages are adjudicated in order that a right of the plaintiff that has been violated or invaded by the defendant may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.45 Thus, for respondent's violation of petitioner's statutory rights, respondent is sanctioned to pay petitioner nominal damages in the amount of ₱30,000.00.

WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 57528 are AFFIRMED with the MODIFICATION that the sanction imposed on respondent for non-compliance with statutory due process is increased from ₱5,000.00 to ₱30,000.00.


Associate Justice


Associate Justice

Associate Justice
Associate Justice

Associate Justice


I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

Associate Justice
Third Division, Chairperson


Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

Chief Justice


1 Penned by Associate Justice Mariflor P. Punzalan Castillo, with Associate Justices Jose L. Sabio, Jr. and Edgardo P. Cruz., concurring; rollo, pp. 66-82.

2 Id. at 83-87.

3 Rollo, pp. 169-176.

4 Id. at 205.

5 Id. at 464.

6 Id. at 466.

7 Id. at 468.

8 Id. at 470.

9 Id. at 469.

10 Id. at 471.

11 Id. at 472.

12 Id. at 118-139.

13 Penned by Commissioner Victoriano R. Calaycay, with Presiding Commissioner Raul T. Aquino and Commissioner Angelita A. Gacutan, concurring, id. at 169-176.

14 Rollo, p. 205.

15 Id. at 26-27.

16 Records, pp. 1-4.

17 Id. at 9-14.

18 Id. at 48-54.

19 TSN, October 18, 1994.

20 Rollo, pp. 151-162.

21 Id. at 163-165.

22 Id. at 177-197.

23 Id. at 206-246.

24 Id. at 277-291.

25 Id. at 293-322.

26 G.R. No. 168498, June 16, 2006, 491 SCRA 213, 218, citing Batongbakal v. Zafra, 448 SCRA 399, 410 (2005). (Emphasis supplied.)

27 349 Phil. 65, 88-89 (1998). (Emphasis ours.)

28 TSN, October 18, 1994, pp. 34-71.

29 G.R. No. 72779, March 21, 1990, 183 SCRA 421, 424.

30 Manuel B. Japzon v. Commission on Elections and Jaime S. Ty, G.R. No. 180088, January 19, 2009.

31 Records, pp. 96-99.

32 Records, pp. 90-95.

33 Id. at 96-97.

34 People v. Gomez, 345 Phil. 195, 203 (1997).

35 TSN, September 14, 1995.

36 Supra note 34, at 204.

37 G.R. No. 106341, September 2, 1994, 236 SCRA 280, 289.

38 TSN, October 18, 1994, p. 77.

39 Records, p. 100.

40 Arnulfo O. Endico v. Quantum Foods Distribution Center, G.R. No. 161615, January 30, 2009.

41 Pono v. National Labor Relations Commission, G.R. No. 118860, July 17, 1997, 275 SCRA 611, 618.

42 Rollo, pp. 463-471.

43 485 Phil. 248 (2004).

44 Id. at 288.

45 Celebes Japan Foods Corporation, represented by Kanemitsu Yamaoka and Cesar Romero, v. Susan Yermo, et al., Orson Mamalis, Bai Annie Alano, Michie Alfanta, Ginalyn Panilagao, Annalie Ayag, Jocelyn Agton, Jose Jurie Surigao, Gilda Serrano, Joy Remarga, Erick Tac-An and Jenne Carlos, G.R. No. 175855, October 2, 2009.

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