G.R. No. 228357 - Separate Opinion

G.R. No. 228357, April 16, 2024,
♦ Decision, Kho, Jr., [J]
♦ Concurring Opinion, Gesmundo, [CJ]
♦ Concurring and Dissenting Opinion, Lazaro-Javier, [J]
♦ Concurring and Dissenting Opinion, Caguioa, [J]
♦ Separate Opinion, Leonen, [J]

C.P. REYES HOSPITAL AND ANGELINE M. REYES, PETITIONERS, VS. GERALDINE M. BARBOSA, RESPONDENT.

I join the ponencia in holding that respondent Geraldine M. Barbosa was illegally dismissed. However, I write separately to concur with Justice Antonio T. Kho, Jr.'s earlier position in his initial draft where he wrote that the two-notice rule applied in dismissal cases for just cause should also be applied in the dismissal case of a probationary employee when they fail to qualify to be a regular employee. The earlier draft of Justice Kho, Jr.'s ponencia reads:

The policy of the Constitution is to give the utmost protection to the working class as enshrined in Article XIII:

Clearly, our Constitution and labor laws want employees to have a reasonable expectation of security in their work.3 In Telus International Philippines, inc., v. De Guzman,4 the Court emphasized that "employees are guaranteed that they can only be terminated from service for a just and valid cause and when supported by substantial evidence after due process."5

This Court is fully committed to that policy and has always been quick to rise in defense of the rights of labor.6 While employers do not possess inherent power and right to exploit employees, several factors may create an imbalance in the employer-employee relationship, which could potentially lead to exploitation of employees. The Court must remain vigilant in these cases.

Probationary employees should receive strong protection from employer exploitation considering their increased susceptibility to mistreatment and abuse by management.7

I submit that when a probationary employee fails to meet the reasonable standards for regular employment, it is equivalent to having a justifiable reason to terminate a regular employee. In these cases, the fault lies with the employee.

The grounds for dismissal of just cause lie in the serious misconduct or willful disobedience, gross and habitual neglect, fraud or willful breach of trust, commission of a crime against the employer or an immediate member of their family, and other analogous causes.8 In probationary employment, the employee can be legally terminated either: (1) for a just cause; or (2) for failure to meet reasonable standards set by the employer made known to him at the start of employment.9 Such failure is attributed to the probationary employee.

Article 292 [277] of the Labor Code requires that an employee be furnished with a written notice containing the cause for termination and that the employer must give the employee an opportunity to be heard.10 A subsequent notice must be given to inform the employee of the employer's decision to dismiss him.11

Employees terminated for any just cause are afforded the chance to defend themselves against charges that, if found to be true, could lead to their dismissal and the loss of their property rights. The same rule must apply for probationary employees.

The due process requirement in probationary employment is fulfilled when at the time of employment, the employer informs the probationary employee of the reasonable standards of employment regularization and of the grounds of failure to qualify. A probationary employee is deemed to have been informed by the employer of the standards for regular employment when the employer has exerted reasonable efforts to apprise the employee of what he or she is expected to do or accomplish during the trial period of probation.12

In terminating the employment of a probationary employee, the employer must inform the employee in writing that they did not qualify to be a regular employee based on their evaluation of their performance. Afterwards, the probationary employee must be given a reasonable opportunity to be heard and to articulate their defense. After evaluation of defenses and based on reasonable standards, termination is justified. However, it must be done before the end of the probationary period of employment. It must also be noted that a probationary employee who is allowed to work after the lapse of the probationary period shall be considered a regular employee.13

The requisites of the two-notice rule are basic requirements of due process in labor law. These meet the constitutional requirement of procedural due process that "contemplates notice and opportunity to be heard before judgment is rendered, affecting one's person or property"14 and the constitutional guarantee of security of tenure.

As amended by the Department of Labor and Employment (DOLE) Department Order No. 010-9783, the implementing rules and regulations on security of tenure provide:

In Montinola v. Philippine Airlines,16 this Court emphasized that the right of workers to security of tenure is a constitutional and statutory protected labor right not to be dismissed without just or valid cause and in the absence of due process:

Security of tenure of workers is not only statutorily protected, but also a constitutionally guaranteed right. Thus, any deprivation of this right must be attended to by due process of law. This means that any disciplinary action that affects employment must pass due process scrutiny in both its substantive and procedural aspects.

The constitutional protection for workers elevates their work to the status of a vested right. It is a vested right protected not only against state action but against the arbitrary acts of the employers as well. This court in Philippine Movie Pictures Workers' Association v. Premier Productions, Inc. categorically stated that "[t]he right of a person to his labor is deemed to be property within the meaning of constitutional guarantees." Moreover, it is of that species of vested constitutional right that also affects an employee's liberty and quality of life. Work not only contributes to defining the individual, it also assists in determining one's purpose. Work provides for the material basis of human dignity.17

In Lopez v. Javier,18 this Court held that in ensuring the protection of security of tenure, the Constitution "does not distinguish as to the kind of worker who is entitled to be protected in this right."19 It accords security of tenure to all employees, whether regular or probationary.

While the employer observes the fitness, propriety, and efficiency of a probationer to ascertain fitness for permanent employment, the probationer at the same time seeks to prove to the employer that they have the qualifications to meet the reasonable standards for permanent employment.20

Employees who are on probation enjoy security of tenure.21 During their probationary employment, they cannot be dismissed except for a cause.

In Holiday Inn Manila v. NLRC,22 this Court stressed that the employer holds complete discretion in selecting employees based on their standards of competence and integrity, exercising their prerogative in the hiring process. However, once employed, workers are entitled to legal protection. This legal protection extends to both probationary and regular employees of the workforce.23 It is also important to note that the employer's freedom in hiring employees does not equate to their freedom in terminating employment.24

Furthermore, the differing application of due process between a regular and probationary employee appears arbitrary. This rule places probationary employees in an unfair position where they can be dismissed and deprived of employment regularization without the opportunity to explain and be heard at the end of the probationary period.

In Central Negros Electric Cooperative, Inc v. NLRC,25 this Court emphasized the need for probationary employees' protection:

Rightly so, for if there is any group of employees that needs robust protection from the exploitation of employers, it is the casuals and probationaries. Usually the lowliest of the lowly, they are most vulnerable to abuses of management for they would rather suffer in silence than risk losing their jobs.26

With utmost respect to my colleagues, I stand with the ponencia's initial position that the one-notice rule on probationary employees runs counter to the constitutional guarantee of affording full protection to labor and security of tenure. To require the application of the two-notice rule for probationary employment is consistent with our state policy on protecting labor.

To emphasize, we noted the transcendental role of labor in GlobeMackay Cable v. NLRC:27

[C]onstitution has gone further than then 1973 Charter in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Given the pro-poor orientation of several articulate Commissioners of the Constitutional Commission of 1986, it was not surprising that a whole new Article emerged on Social Justice and Human Rights designed, among other things, to "protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good."28

The right of probationary employees to employment is a right that needs to be protected. In situations where probationary employees are confronted with circumstances that may jeopardize their property rights, such as being deemed ineligible for employment regularization based on reasonable standards unilaterally established by their employer, they must be afforded the same opportunity to be heard and to present their case, akin to that provided to regular employees. A probationary employee, like a regular employee, enjoys security of tenure.29

When the Constitution makes no distinction between the kind of employment in extending its protection to employees, the Court must refrain from making one.

To repeat, the ponencia in its initial draft ruled on the applicability of the two-notice rule to all employees, both regular and probationary, as a prerequisite to a valid dismissal due to the security of tenure they enjoy. However, the ponencia has had to strike out its entire discussion on that issue in deference to the En Banc's decision to wait for a proper case that directly touches on the constitutionality of the one-notice rule for termination of probationary employees, instead of laying down what would merely be an obiter dictum in the present case for entitlement to backwages. Hence, while we wait for the proper case to ripen for resolution, I leave this here for my colleagues to consider when the issue is directly raised to this Court in the future.