Republic of the Philippines

SUPREME COURT
Manila
G.R. No. 166211 - Asian Terminals, Inc. v. Nepthally B. Sallao and Asian Terminals, Inc. (Mariveles)
Workers Union
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SEPARATE CONCURRING OPINION
 
VELASCO, JR., J.
 
I concur with the well-written ponencia of my esteemed colleague. However, I would like to register my
observations in relation to the statement that with regard to the requirement of a hearing, the essence
of due process lies simply in an opportunity to be heard, and not that of an actual hearing should always
and indispensably be held.[1]Moreover, elucidation is needed on the concluding statement that even if
no face-to-face hearing was conducted, the requirement of due process had been met since he was
accorded a chance to explain his side of the controversy.

The aforementioned conclusions are correct when applied to the instant case. While no hearing or
conference was conducted by petitioner Asian Terminals, Inc. in September 1998 when the
administrative proceedings were held against respondent Sallao, the absence thereof does not
constitute a breach of the procedural due process for such was the settled jurisprudence as enunciated
in MBTC v. Barrientos, G.R. No. 157028, Jan. 31, 2006, 481 SCRA 311 and other related cases.
 
However, on June 29, 2007, the Court in King of Kings Transport, Inc. v. Mamac,[2]  explained that the
requirement of a hearing or conference is an indispensable element of procedural due process, thus:
 
Due process under the Labor Code involves two aspects: first,  substantive - the valid and authorized
causes of termination of employment under the Labor Code; and second, procedural the manner of
dismissal. In the present case, the CA affirmed the findings of the labor arbiter and the NLRC that the
termination of employment of respondent was based on a just cause. This ruling is not at issue in this
case. The question to be determined is whether the procedural requirements were complied with.
 
Art. 277 of the Labor Code provides the manner of termination of employment, thus:
 
Art. 277. Miscellaneous Provisions. x x x
 
(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 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.
 
Accordingly, the implementing rule of the aforesaid provision states:
 
SEC. 2. Standards of due process; requirements of notice. In all cases of termination of employment, the
following standards of due process shall be substantially observed:
 
1. For termination of employment based on just causes as defined in Article 282 of the Code:
 
(a) A written notice served on the employee specifying the ground or grounds for termination, and
giving said employee reasonable opportunity with which to explain his side.
 
(b) 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.
 
(c) 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 case of termination, the foregoing notices shall be served on the employees last known address.
 
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. 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.
 
In the instant case, KKTI admits that it had failed to provide respondent with a charge sheet. However, it
maintains that it had substantially complied with the rules, claiming that respondent would not have
issued a written explanation had he not been informed of the charges against him.
 
We are not convinced.
 
First, respondent was not issued a  written notice charging him of committing an infraction. The law is
clear on the matter. A verbal appraisal of the charges against an employee does not comply with the
first notice requirement. In Pepsi-Cola Bottling Co. v. NLRC, the Court held that consultations or
conferences are not a substitute for the actual observance of notice and hearing.  Also, in Loadstar
Shipping Co., Inc. v. Mesano, the Court, sanctioning the employer for disregarding the due process
requirements, held that the employees written explanation did not excuse the fact that there was a
complete absence of the first notice.
 
Second, even assuming that petitioner KKTI was able to furnish respondent an Irregularity Report
notifying him of his offense, such would not comply with the requirements of the law.  We observe from
the irregularity reports against respondent for his other offenses that such contained merely a general
description of the charges against him. The reports did not even state a company rule or policy that the
employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of
employment under Art. 282 of the Labor Code. Thus, KKTIs standard charge sheet is not sufficient notice
to the employee.
 
Third,  no hearing was conducted. Regardless of respondents written explanation, a hearing was still
necessary in order for him to clarify and present evidence in support of his defense. Moreover,
respondent made the letter merely to explain the circumstances relating to the irregularity in
his October 28, 2001 Conductors Trip Report. He was unaware that a dismissal proceeding was already
being effected. Thus, he was surprised to receive the November 26, 2001 termination letter indicating as
grounds, not only his October 28, 2001 infraction, but also his previous infractions.
 
Article 277 of the Labor Code speaks of a written  notice containing a statement of the causes for
termination and shall afford the [employee] ample opportunity to be heard and defend himself with the
assistance of his representative. The Court, in the Metrobank (MBTC) case, gave such provision a myopic
and restrictive interpretation which appears off-tangent to the constitutional protection to labor. This
strict interpretation was discarded in King of Kings Transport for the following reasons:
 
1. The first written notice containing the charges does not encompass the 2 nd requisite of opportunity to
be heard. Note should be taken of the conjunctive and which means that the written notice should be
distinct from the opportunity to be heard. While it may be conceded that the first notice gives the
employee reasonable opportunity to explain his side, such does not cover the 2 nd requisite of ample
opportunity to be heard and defend himself with the assistance of his representative which will
necessitate the conduct of a hearing or conference to give the laborer the chance to respond to the
charge, present evidence or rebut the evidence presented against him. Ample means full and more than
adequate chances to be heard and defend himself against the charges leveled on him.  Without the
hearing or conference, the written reply or answer to the first notice is insufficient to fully explain and
support his defenses, present evidence in support of his defenses due to time constraints in the
preparation of the answer and rebut the evidence of the employer since the first notice does not usually
contain the evidence intended to support the charges. In addition, the employees counsel or
representative can better articulate his defenses in an actual hearing than by just merely relying on a
written reply or answer.
2. The Secretary of Labor is given the power to promulgate rules and regulations to implement the Labor
Code. Pursuant to such rule-making power, he approved the Omnibus Rules Implementing the Labor
Code which provides in part:
 
Sec. 2. Standards of due process, requirements of notice.
 
xxxx
 
I.
 
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(b) 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.[3]
 
Any rule or regulation in the implementation of a law issued by the rule-making authority has the force
and effect of law.[4]
 
3. The constitutional provisions on protection to labor and social justice dictate that a liberal
interpretation be accorded Article 277 of the Labor Code on the requirement giving an employee ample
opportunity to be heard and defend himself.
 
Thus, I submit that effective June 29, 2007 when the King of Kings Transport v. Mamac was
promulgated, the prevailing rule is that the hearing or conference is one of the vital requirements of
procedural due process in the dismissal of employees. Non-compliance therewith would be a ground for
the imposition of the indemnity of PhP 30,000.
 
PRESBITERO J. VELASCO, JR.

[1]
 Decision, p. 6.
[2]
 G.R. No. 166208, June 29, 2007, 526 SCRA 116, 123-127.
[3]
 OMNIBUS RULES IMPLEMENTING THE LABOR CODE, Book V, Rule XXIII.
[4]
 Commissioner of Internal Revenue v. Court of Appeals, G.R. No. 119761, August 29, 1996, 261 SCRA
236; De La Salle University Medical Center and College of Medicine v. Laguesma, G.R. No.102084, August
12, 1998, 294 SCRA 141.