September 22, 2012 Recitation D. Procedural Requirements (Page23) Nos. 2-4 2.

Right to Counsel Article 277 (b), 1st Sentence Statutory Due Process 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 and 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. Overall, Art. 277 (b) enunciates the basic requirements of due process that should be observed in termination of employment for just or authorized causes. SALAW vs. NLRC, 202 SCRA 7 (1991) G.R. No. 90786 (2D) September 27, 1991 ESPERO SANTOS SAIAW vs. NLRC, ASSOCIATED BANK AND/ OR JOSE R. TENGCO, Chairman of the Board, ROLLIE TUAZON, Manager Petitioner, Espero Santos Saiaw, was employed by the private respondents in September 1967 as a credit investigatorappraiser which includes as duties, among others, identifying the company's foreclosed assets and verifying the genuineness and encumbrances of the titles of properties mortgaged to the respondents. Petitioner was terminated from his employment effective for alleged serious misconduct or willful disobedience and fraud or willful breach of the trust reposed on him by the private respondents. A year before his termination which was in 1984, the Criminal Investigation Service (CIS) of the Philippine Constabulary, NCR, extracted from the petitioner without the assistance of counsel a Sworn Statement which made it appear that the petitioner, in cahoots with a co-employee, Reynaldo Madrigal, a supervisor in charge of the acquired assets of respondent Associated Bank, sold 20 sewing machines and electric generators which had been foreclosed by the respondent bank from Worldwide Garment and L.P. Money Garment, for P60,000.00, and divided the proceeds thereof in equal shares of P30,000.00 between the two of them. Thereafter, petitioner was requested by private respondent Rollie Tuazon, the bank manager, to appear before the bank's Personnel Discipline and Investigation Committee (PDIC) which would be meeting the following day in connection with the Worldwide case. When petitioner signified his readiness to appear before the PDIC, the bank manager sent him a letter stating that his request to appear before the PDIC with regard to the Worldwide Case has been accepted so he must come on the date specified therein without counsel or representative. In Saiaws complaint for illegal dismissal, LA ruled in favor of Saiaw ordering his reinstatement and payment of his backwages from the date he was dismissed up to his actual reinstatement. But on respondents appeal, NLRC held for private respondents and denied petitioners MR. Hence, this recourse. ISSUE WON the dismissal of the petitioner was legally justified. HELD NO. Under the Labor Code, as amended, the requirements for the lawful dismissal of an employee by his employer are twofold: the substantive and the procedural. Not only must the dismissal be for a valid or authorized cause as provided by law (Articles 279, 281, 282-284, New Labor Code), but the rudimentary requirements of due process notice and hearing must also be observed before an employee may be dismissed. It is true that administrative and quasi-judicial bodies are not bound by the technical rules of procedure in the adjudication cases. However, the right to counsel, a very basic requirement of substantive due process, has to be observed. Indeed, rights to counsel and to due process of law are two of fundamental rights guaranteed by the 1987 Constitution to person under investigation, be the proceeding administrative, civil, or criminal. Thus, Section 12(1), Article III thereof specifically provides: "Any person under investigation for the commission of an offense shall have the right to have competent and independent counsel preferably of his own choice. If the person cannot afford the service of counsel, he must be provided with one. These rights cannot be waived except in writing in the presence of counsel." To underscore the inviolability this provision, the third paragraph of the same section explicitly states that, "any confession or admission obtained in violation of this or the preceding section shall be inadmissible evidence against him." In the case at bar, the investigation of petitioner Salaw by the respondent Bank [observed in respondents initial act in convening their Personnel Discipline and Investigation Committee (PDIC) to investigate complainant (after the CIS experience)]

violated his constitutional right to due process, in as much as he was not given a chance or ample opportunity to defend himself with the assistance of his representative or counsel as provided in Rule XIV, Section 5, Book V of the Implementing Rules and Regulations of the Labor Code, governing the dismissal of employees. Respondents dismissed the complainant on his supposed admission of the offense imputed to him by the CIS in its interrogation. Said admission was carried in a 3-page Sworn Statement signed by Saiaw. Aside from this Statement, other evidence was presented by the respondents to establish the culpability of herein petitioner in the fraudulent sale of respondents' foreclosed properties. Even the minutes of proceeding taken during the investigation conducted by respondents were not presented. Cardinal primary rights which must be respected even in proceedings of administrative character as enunciated by the SC: The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity. CONCLUSION Considering further that the admission by the petitioner which was extracted from him by the CIS without the assistance of counsel and which was made the sole basis for his dismissal, cannot be admitted in evidence against him, then, the finding of guilt of the PDIC, which was affirmed by the NLRC has no more leg to stand on. A decision with absolutely nothing to support it is a nullity. Petitioner was terminated without the benefit of due process of law. His dismissal was, therefore, illegal. DISPOSITION Appealed decision of NLRC; decision of LA reinstated. Normal consequences of a finding that an employee has been illegally dismissed: Petitioner Saiaw is entitled to reinstatement to his former position without loss of seniority rights and, has to be paid his backwages from the time he was illegally dismissed up to his actual reinstatement. 3. Twin Notice Requirement Art 277 (b), 1st Sentence 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 KINGS OF KINGS TRANSPORT vs. MAMAC, GR No 166208; June 29, 2007 FACTS o Respondent Mamac was hired as bus conductor of Don Mariano Transit Corporation (DMTC) in 1999 and became an employee of KKTI after the latter acquired new buses pending the holding of certification election in DMTC. Subsequently, petitioner was elected as president of KKTIs Kaisahan ng mga Kawani sa King of Kings (KKKK). o Respondent was required to accomplish a "Conductors Trip Report" and submit it to the company after each trip. Background: o o REPORT indicates ticket opening/closing for the particular day of duty After submission, the company audits the reports. Once an irregularity is discovered, the company issues an "Irregularity Report" against the employee, indicating the nature and details of the irregularity. Concerned employee is asked to explain the incident by making a written statement or counter-affidavit at the back of the same Irregularity Report. After considering the explanation of the employee, the company then makes a determination of whether to accept the explanation or impose upon the employee a penalty for committing an infraction. Decision shall be stated on said Irregularity Report and will be furnished to the employee.

Upon audit of the (28Oct2001) Conductors Report of respondent, KKTI noted an irregularity where it was discovered that respondent declared several sold tickets as returned tickets causing KKTI to lose an income of Php890. In his letter, respondent said that the erroneous declaration in that particular Trip Report was unintentional explaining that during that days trip, the windshield of the bus assigned to them was smashed; and they had to cut short the trip in order to immediately report the matter to the police. As a result of the incident, he got confused in making the trip report.

Subsequently, respondent was terminated; stated in the dismissal letter that the Oct2001 irregularity was an act of fraud against the company and included as one of the bases for said dismissal was the other offenses respondent allegedly committed since 1999. NLRC and the CA ruled that petitioners failed to comply with the required procedural due process prior to respondents termination. Hence, this petition.

ISSUE Whether petitioner KKTI complied with the due process requirements in terminating respondents employment as what only accords respondent Mamac was verbal appraisal of the charges against him. HELD: NO Art. 277 of the Labor Code provides the manner of termination of employment, thus: 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 DOLE. 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: I. For termination of employment based on just causes as defined in Article 282 of the Code: (a) A (first) written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain (written explanation subject to directives) his side. Reasonable opportunity 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. The notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. 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. (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. 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. (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. 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." but 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." CONCLUSION KKTI failed to comply with the due process requirements in terminating the employment of respondent. First, respondent was not issued a written notice charging him of committing an infraction. A verbal appraisal of the charges against an employee does not comply with the first notice requirement.

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 as the irregularity reports against respondent for his other offenses 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 termination letter indicating as grounds, not only the latest infraction, but also his previous ones.

DISPOSITION Petition is partially granted. Thus, for non-compliance with the due process requirements in the termination of respondents employment, petitioner KKTI is sanctioned to indemnify respondent with nominal damages.