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Prof. Joselito Guianan Chan's The Labor Code of the Philippines, Annotated Labor Standards & Social Legislation Volume I of a 3-Volume Series 2019 Edition (3rd Revised Edition)
 

 
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UNITED STATES SUPREME COURT JURISPRUDENCE
 

 
PHILIPPINE SUPREME COURT JURISPRUDENCE
 

   
July-1997 Jurisprudence                 

  • G.R. No. 96649-50 July 1, 1997 - PEOPLE OF THE PHIL. v. LYNDON V. MACOY

  • G.R. No. 109660 July 1, 1997 - PEOPLE OF THE PHIL. v. ROMEO NELL

  • G.R. No. 124914 July 2, 1997 - JESUS UGADDAN v. COURT OF APPEALS, ET AL.

  • G.R. No. 123074 July 4, 1997 - PEOPLE OF THE PHIL. v. FERNANDO M. FERNANDEZ

  • Adm. Matter No. MTJ-94-1017 July 7, 1997 - OSCAR B. LAMBINO v. AMADO A. DE VERA

  • Adm. Matter No. P-97-1245 July 7, 1997 - BENIGNO G. GAVIOLA v. NOEL NAVARETTE

  • G.R. No. 105760 July 7, 1997 - PNB v. COURT OF APPEALS, ET AL.

  • G.R. No. 107193 July 7, 1997 - EUGENIO TENEBRO v. COURT OF APPEALS, ET AL.

  • G.R. No. 112006 July 7, 1997 - PEOPLE OF THE PHIL. v. ROBERTO S. DE VERA

  • G.R. No. 114275 July 7, 1997 - IÑIGO F. CARLET v. COURT OF APPEALS, ET AL.

  • G.R. No. 116962 July 7, 1997 - MARIA SOCORRO CACA v. COURT OF APPEALS, ET AL.

  • G.R. Nos. 118940-41 & 119407 July 7, 1997 - PEOPLE OF THE PHIL. v. GREGORIO MEJIA, ET AL.

  • G.R. No. 119872 July 7, 1997 - REMEDIOS NAVOA RAMOS v. COURT OF APPEALS, ET AL.

  • G.R. No. 122206 July 7, 1997 - RAFAEL ARCEGA, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 105284 July 8, 1997 - PEOPLE OF THE PHIL. v. IGNACIO ZUMIL

  • G.R. No. 106099 July 8, 1997 - PEOPLE OF THE PHIL. v. AGUSTIN SOTTO, ET AL.

  • G.R. No. 109814 July 8, 1997 - PEOPLE OF THE PHIL. v. FERNANDO MAALAT

  • G.R. No. 112797 July 8, 1997 - PEOPLE OF THE PHIL. v. NIDA ALEGRO

  • G.R. No. 114265 July 8, 1997 - PEOPLE OF THE PHIL. v. GREGORIO MAGALLANES

  • G.R. No. 115307 July 8, 1997 - MANUEL LAO v. COURT OF APPEALS, ET AL.

  • G.R. No. 115703 July 8, 1997 - EPIFANIO L. CASOLITA, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 117501 July 8, 1997 - SOLID HOMES, INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 122308 July 8, 1997 - PURITA S. MAPA, ET AL. v. COURT OF APPEALS, ET AL.

  • Adm. Matter No. SC-96-1 July 10, 1997 - DAMASO S. FLORES v. BERNARDO P. ABESAMIS

  • Adm. Matter No. P-97-1236 July 11, 1997 - MADONNA MACALUA v. DOMINGO TIU, JR.

  • Adm. Matter No. P-97-1249 July 11, 1997 - PACITA SY TORRES v. FROILAN S. CABLING

  • G.R. No. 104865 July 11, 1997 - PEOPLE OF THE PHIL. v. VICTORIANO PONTILAR, JR.

  • G.R. Nos. 113511-12 July 11, 1997 - PEOPLE OF THE PHIL. v. DANILO SINOC

  • G.R. No. 115033 July 11, 1997 - PONCIANO T. MATANGUIHAN, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 123204 July 11, 1997 - NATIONWIDE SECURITY AND ALLIED SERVICES, INC. v. NLRC, ET AL.

  • Adm. Matter No. P-95-1158 July 14, 1997 - EUFEMIA BERCASIO v. HERBERTO BENITO, ET AL.

  • G.R. No. 106153 July 14, 1997 - FLORENCIO G. BERNARDO v. COURT OF APPEALS, ET AL.

  • G.R. No. 108838 July 14, 1997 - PAGCOR v. COURT OF APPEALS, ET AL.

  • G.R. Nos. 116528-31 July 14, 1997 - PEOPLE OF THE PHIL. v. MARIETO ADORA

  • G.R. No. 108492 July 15, 1997 - PEOPLE OF THE PHIL. v. NOEL BANIEL, ET AL.

  • G.R. No. 118078 July 15, 1997 - PEOPLE OF THE PHIL. v. OSCAR VILLANUEVA

  • G.R. No. 123379 July 15, 1997 - BAROTAC SUGAR MILLS, INC. v. COURT OF APPEALS, ET AL.

  • G.R. Nos. 115439-41 July 16, 1997 - PEOPLE OF THE PHIL. v. SANDIGANBAYAN, ET AL.

  • G.R. Nos. 120437-41 July 16, 1997 - PEOPLE OF THE PHIL. v. ARMANDO ALVARIO

  • Adm. Matter No. RTJ-97-1382 July 17, 1997 - REXEL M. PACURIBOT v. RODRIGO F. LIM, JR.

  • G.R. No. 105002 July 17, 1997 - PEOPLE OF THE PHIL. v. DIARANGAN DANSAL

  • G.R. No. 108634 July 17, 1997 - ANTONIO P. TAN v. COURT OF APPEALS, ET AL.

  • G.R. No. 111165 July 17, 1997 - PEOPLE OF THE PHIL. v. ROGELIO MERCADO, ET AL.

  • G.R. No. 113257 July 17, 1997 - PEOPLE OF THE PHIL. v. JOHNNY LASCOTA

  • G.R. No. 114742 July 17, 1997 - CARLITOS E. SILVA v. COURT OF APPEALS, ET AL.

  • G.R. No. 118860 July 17, 1997 - ROLINDA B. PONO v. NLRC, ET AL.

  • G.R. No. 120262 July 17, 1997 - PAL, INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 125195 July 17, 1997 - SAMAHAN NG MGA MANGGAGAWA SA BANDOLINO, ET AL. v. NLRC, ET AL.

  • Adm. Matter No. RTJ-96-1362 July 18, 1997 - DSWD, ET AL. v. ANTONIO M. BELEN, ET AL.

  • Adm. Matter No. RTJ-95-1283 July 21, 1997 - DAVID C. NAVAL, ET AL. v. JOSE R. PANDAY, ET AL.

  • G.R. No. 108488 July 21, 1997 - PEOPLE OF THE PHIL. v. RODENCIO NARCA, ET AL.

  • G.R. No. 111002 July 21, 1997 - PACIFIC MARITIME SERVICES, INC., ET AL. v. NICANOR RANAY, ET AL.

  • G.R. No. 117402 July 21, 1997 - PEOPLE OF THE PHIL. v. ROLLIE L. ALVARADO

  • G.R. No. 119184 July 21, 1997 - HEIRS OF FELICIDAD CANQUE v. COURT OF APPEALS, ET AL.

  • G.R. No. 121768 July 21, 1997 - PEOPLE OF THE PHIL. v. DOMINGO CASTILLO, JR.

  • G.R. Nos. 122250 & 122258 July 21, 1997 - EDGARDO C. NOLASCO v. COMELEC, ET AL.

  • G.R. No. 124347 July 21, 1997 - CMS STOCK BROKERAGE, INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 125510 July 21, 1997 - PEOPLE OF THE PHIL. v. RENATO LISING

  • G.R. No. 111933 July 23, 1997 - PLDT v. NLRC, ET AL.

  • G.R. Nos. 112429-30 July 23, 1997 - PEOPLE OF THE PHIL. v. RODOLFO P. CAYETANO

  • G.R. Nos. 118736-37 July 23, 1997 - PEOPLE OF THE PHIL. v. TANG WAI LAN

  • Adm. Matter No. P-96-1205 July 24, 1997 - OSCAR P. DE LOS REYES v. ESTEBAN H. ERISPE, JR.

  • Adm. Matter No. RTJ-97-1383 July 24, 1997 - JOSE LAGATIC v. JOSE PEÑAS, JR., ET AL.

  • G.R. No. 104663 July 24, 1997 - PEOPLE OF THE PHIL. v. DAVID SALVATIERRA

  • G.R. No. 105004 July 24, 1997 - PEOPLE OF THE PHIL. v. DIONISIO MAROLLANO

  • G.R. No. 107723 July 24, 1997 - EMS MANPOWER & PLACEMENT SERVICES v. NLRC, ET AL.

  • G.R. No. 111211 July 24, 1997 - ABS-CBN EMPLOYEES UNION, ET AL., v. NLRC, ET AL.

  • G.R. No. 113235 July 24, 1997 - VICTORINA MEDINA, ET AL. v. CITY SHERIFF, MANILA, ET AL.

  • G.R. Nos. 113366-68 July 24, 1997 - GREGORIO ISABELO, ET AL. v. NLRC, ET AL.

  • G.R. No. 116635 July 24, 1997 - CONCHITA NOOL, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 116736 July 24, 1997 - PEOPLE OF THE PHIL. v. BENJAMIN ORTEGA, ET AL.

  • G.R. No. 118458 July 24, 1997 - PEOPLE OF THE PHIL. v. RICKY DELA CRUZ

  • G.R. No. 120276 July 24, 1997 - SINGA SHIP MANAGEMENT PHILS., INC. v. NLRC, ET AL.

  • G.R. No. 121075 July 24, 1997 - DELTA MOTORS CORP. v. COURT OF APPEALS, ET AL.

  • G.R. No. 121867 July 24, 1997 - SMITH KLINE & FRENCH LAB., LTD. v. COURT OF APPEALS, ET AL.

  • G.R. No. 127262 July 24, 1997 - HUBERT WEBB, ET AL. v. PEOPLE OF THE PHIL., ET AL.

  • Adm. Matter Nos. 95-6-55-MTC & P-96-1173 July 28, 1997 - REPORT ON AUDIT IN THE MTC OF PEÑARANDA, NUEVA ECIJA

  • G.R. No. 102858 July 28, 1997 - DIRECTOR OF LANDS v. COURT OF APPEALS, ET AL.

  • G.R. No. 103209 July 28, 1997 - APOLONIO BONDOC, ET AL. v. NLRC, ET AL.

  • G.R. No. 110823 July 28, 1997 - PEOPLE OF THE PHIL. v. ROCHEL TRAVERO

  • G.R. No. 112323 July 28, 1997 - HELPMATE, INC. v. NLRC, ET AL.

  • G.R. No. 113344 July 28, 1997 - PEOPLE OF THE PHIL. v. ATANACIO LUTO

  • G.R. No. 116668 July 28, 1997 - ERLINDA A. AGAPAY v. CARLINA V. PALANG, ET AL.

  • G.R. No. 116726 July 28, 1997 - PEOPLE OF THE PHIL. v. LEONARDO P. DE LA CRUZ

  • G.R. No. 118822 July 28, 1997 - G.O.A.L., INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 119000 July 28, 1997 - ROSA UY v. COURT OF APPEALS, ET AL.

  • G.R. No. 119649 July 28, 1997 - RICKY GALICIA, ET AL. v. NLRC, ET AL.

  • G.R. No. 119868 July 28, 1997 - PAL, INC. v. NLRC, ET AL.

  • G.R. No. 120072 July 28, 1997 - PEOPLE OF THE PHIL. v. FLORENTINO I. MESA

  • G.R. No. 123361 July 28, 1997 - TEOFILO CACHO v. COURT OF APPEALS, ET AL.

  • G.R. No. 126556 July 28, 1997 - NELSON C. DAVID v. COURT OF APPEALS, ET AL.

  • G.R. No. 117742 July 29, 1997 - GEORGE M. TABERRAH v. NLRC, ET AL.

  • SBC Case No. 519 July 31, 1997 - PATRICIA FIGUEROA v. SIMEON BARRANCO, JR.

  • G.R. No. 97369 July 31, 1997 - P.I. MANPOWER PLACEMENTS, INC. v. NLRC, ET AL.

  • G.R. No. 99030 July 31, 1997 - PLDT v. NLRC, ET AL.

  • G.R. No. 106582 July 31, 1997 - PEOPLE OF THE PHIL. v. RUPERTO BALDERAS

  • G.R. No. 107802 July 31, 1997 - PEOPLE OF THE PHIL. v. JASON NAREDO

  • G.R. No. 108399 July 31, 1997 - RAFAEL M. ALUNAN III, ET AL. v. ROBERT MIRASOL, ET AL.

  • G.R. No. 108619 July 31, 1997 - EPIFANIO LALICAN v. FILOMENO A. VERGARA, ET AL.

  • G.R. No. 113689 July 31, 1997 - PEOPLE OF THE PHIL. v. FELIPE SANGIL, SR.

  • G.R. No. 113958 July 31, 1997 - BANANA GROWERS COLLECTIVE, ET AL. v. NLRC, ET AL.

  • G.R. No. 116060 July 31, 1997 - PEOPLE OF THE PHIL. v. CLEMENTE DE LA PEÑA

  • G.R. No. 116292 July 31, 1997 - PEOPLE OF THE PHIL. v. JIMMY PEÑERO

  • G.R. No. 119068 July 31, 1997 - PEOPLE OF THE PHIL. v. DANTE CASTRO, ET AL.

  • G.R. No. 121027 July 31, 1997 - CORAZON DEZOLLER TISON, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 121157 July 31, 1997 - HEIRS OF SEGUNDA MANINGDING, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 123561 July 31, 1997 - DELIA R. NERVES v. CSC, ET AL.

  • G.R. No. 124678 July 31, 1997 - DELIA BANGALISAN, ET AL. v. COURT OF APPEALS, ET AL.

  •  





     
     

    G.R. No. 111211   July 24, 1997 - ABS-CBN EMPLOYEES UNION, ET AL., v. NLRC, ET AL.

     
    PHILIPPINE SUPREME COURT DECISIONS

    SECOND DIVISION

    [G.R. No. 111211. July 24, 1997.]

    ABS-CBN EMPLOYEES UNION and JOSE ENTRADICHO, Petitioners, v. NATIONAL LABOR RELATIONS COMMISSION and ABS-CBN BROADCASTING CORPORATION, Respondents.

    Ricardo C. Balmonte, for Petitioners.

    Makalintal Barrot Torres & Ibarra for Private Respondents.

    SYNOPSIS


    Petitioner Jose Entradicho, a cameraman of ABS-CBN, was dismissed from employment for acts of disloyalty for having deserted his assignment with ABS-CBN for the production of "Kris at 18" in favor of his stint at People’s Television 4 (PTV-4) for the production of "Supermodels." The taping of the production was thus allegedly delayed, mishandled and haphazardly done to the damage and prejudice of ABS-CBN. He denied deserting his assignment at ABS-CBN in favor of the production of "Supermodels." He, however, admitted that he was forced to accept the job with PTV-4 due to an urgent financial need to defray the medical expenses of his sick child.

    Petitioner filed a complaint for illegal dismissal against ABS-CBN. The Labor Arbiter ruled that petitioner was illegally dismissed and ordered his immediate reinstatement with full back wages. On appeal, the NLRC set aside said decision and dismissed the case. It, however, ordered ABS-CBN to indemnify petitioner in the amount of P1,000.00 for its non-observance of due process in the termination of his services.

    In affirming the NLRC decision, the Supreme Court ruled that by rendering services to a business rival, PTV-4, the petitioner was not only guilty of acts of disloyalty, but also of serious misconduct and willful breach of trust which are valid grounds for the termination of an employment. The dismissal, however, must not only be for a valid or substantial cause, but the employer must also observe the procedural aspect of due process by giving the employee proper notice and the opportunity to be heard and to defend himself. The award of P1,000.00 in favor of the employee as penalty for non-observance of due process was sustained.

    NLRC decision affirmed.


    SYLLABUS


    1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; THE PETITION IS PROCEDURALLY DEFECTIVE FOR FAILURE OF PETITIONER TO FILE A MOTION FOR RECONSIDERATION WITH THE NLRC. — The instant petition is procedurally defective for failure of petitioner to file a motion for reconsideration with the NLRC before availing of the special civil action of certiorari. In the case of Building Care Corporation v. NLRC, the Court declared that this premature action constitutes a fatal infirmity thus: ". . . The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against the acts of public Respondent. In the instant case, the plain and adequate remedy expressly provided by law was a motion for reconsideration of the assailed decision, based on palpable or patent errors, to be made under oath and filed within ten (10) days from receipt of the questioned decision. (T)he filing of such a motion is intended to afford public respondent an opportunity to correct any actual or fancied error attributed to it by way of a re-examination of the legal and factual aspects of the case. Petitioner’s inaction or negligence under the circumstances is tantamount to a deprivation of the right and opportunity of the respondent Commission to cleanse itself of an error unwittingly committed or to vindicate itself of an act unfairly imputed. . . . And for failure to avail of the correct remedy expressly provided by law, petitioner has permitted the subject Resolution to become final and executory after the lapse of the ten day period within which to file such motion for reconsideration.

    2. ID.; ID.; ID.; MOTION FOR RECONSIDERATION; INDISPENSABLE; PURPOSE THEREOF. — A motion for reconsideration is indispensable for it affords the NLRC an opportunity to rectify errors or mistakes it might have committed before resort to the courts can be had. We had an occasion to stress this significant matter in Zapata v. NLRC, where we ruled in this wise: "Petitioner cannot, on its bare and self-serving representation that reconsideration is unnecessary, unilaterally disregard what the law requires and deny respondent NLRC its right to review its pronouncements before being haled to court to account therefor. On policy considerations, such prerequisite would provide an expeditious termination to labor disputes and assist in the decongestion of court dockets by obviating improvident and unnecessary recourse to judicial proceedings. The present case exemplifies the very contingency sought to be, and which could have been, avoided by the observance of said rules."cralaw virtua1aw library

    3. LABOR AND SOCIAL LEGISLATION; NLRC RULES OF PROCEDURE; SECTION 14, RULE VII THEREOF; A JURISDICTIONAL PROCEDURE; IF NOT COMPLIED WITH, A PETITION FOR CERTIORARI UNDER RULE 65 OF THE RULES OF COURT WILL NOT PROSPER. — Rule VII, Section 14 of the NLRC Rules of Procedure provides that motions for reconsideration must be filed within ten (10) calendar days from receipt of the order, resolution, or decision of the NLRC, a procedure which is jurisdictional. Hence certiorari, as in this case, will not prosper. In the absence of a motion for reconsideration filed within the ten-day reglementary period, the assailed order, resolution, or decision of the NLRC becomes final and executory after ten calendar days from receipt thereof.

    4. ID.; TERMINATION OF EMPLOYMENT; BY RENDERING HIS SERVICES TO A BUSINESS RIVAL, PETITIONER WAS NOT ONLY GUILTY OF ACTS OF DISLOYALTY BUT ALSO OF SERIOUS MISCONDUCT AND WILLFUL BREACH OF TRUST. — It must be noted that under Article XIII, Section 1, paragraph 10 of the ABS-CBN collective bargaining agreement: "The COMPANY and UNION agree that in order to render efficient, competent and competitive service to the public, the COMPANY must maintain a high standard of operation. For this reason, the COMPANY and the UNION agree that the following acts of an employee are subject to disciplinary measures and shall warrant dismissal. . . . (1) Gross inefficiency and acts of disloyalty . . .." The NLRC correctly declared that by rendering his services to a business rival, petitioner was not only guilty of acts of disloyalty but also of serious misconduct and willful breach of trust which under the Labor Code, as amended, are valid and just grounds for the termination of an employment.

    5. ID.; ID.; REQUIREMENT OF DUE PROCESS IN THE DISMISSAL OF AN EMPLOYEE; A MEMORANDUM THAT HINGES ONLY ON ALLEGATIONS AND STATEMENTS SUPPOSEDLY PREJUDICIAL TO PETITIONER, WITHOUT, HOWEVER, INDICATING EXPLICITLY THE CIRCUMSTANCES SURROUNDING THE SAME, IS NOT A SUFFICIENT COMPLIANCE THEREOF. — A dismissal, however, must not only be for a valid or substantial cause; the employer must also observe the procedural aspect of due process by giving the employee proper notice and the opportunity to be heard and to defend himself. Rule XIV, Section 2 of the Implementing Rules and Regulations of the Labor Code provides that: "Notice of Dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omissions constituting the grounds for his dismissal. . ." Hermilindo P. Ocampo’s memorandum to petitioner was worded in this wise: "You are hereby required to report to the undersigned to answer certain allegations and statements presented to the attention of Personnel in connection with your absence last Saturday, July 15, 1989." We adopt the ruling of the Labor Arbiter on this point. The memorandum hinges only on "allegations and statements" supposedly prejudicial to petitioner, without, however, indicating explicitly the circumstances surrounding the same, thus violating the aforementioned rule and regulations of the Labor Code. The Labor Code requires the employer to furnish the employee with a written notice containing a statement of the CAUSE for termination and to afford said employee ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires. Moreover, the employer is also required to notify the worker in writing of the decision to dismiss him, stating clearly the reasons therefor. As to the consequence of the failure to observe the requirement of due process in the dismissal of an employee, we ruled in Aurelio v. NLRC, that in cases where there was a valid ground to dismiss an employee but there was non-observance of due process, this Court held that only a sanction must be imposed upon the employer for failure to give formal notice and to conduct an investigation required by law before dismissing the employee in consonance with the ruling in Wenphil v. NLRC, 170 SCRA 69 (1989); Shoemart, Inc. v. NLRC , supra; and in Pacific Mills, Inc., v. Zenaida Alonzo, 199 SCRA 617 (1991). . . In the Pacific Mills, Inc. and Wenphil cases, this Court awarded P1,000.00 as penalty for non-observance of due process." In the recent case of MGG Marine Services, Inc., Et. Al. v. NLRC, we held that the failure to show due process taints the dismissal. This does not mean however that the private respondent would be entitled to back wages or reinstatement or even separation pay. Under prevailing jurisprudence, one is entitled only to indemnity or damages, the amount of which depends on the peculiar circumstances of each case.


    D E C I S I O N


    ROMERO, J.:


    This petition for certiorari assails the July 12, 1993, decision of the National Labor Relations Commission (NLRC) reversing the judgment of Labor Arbiter Oswald B. Lorenzo dated August 31, 1990, but ordering private respondent to pay petitioner the amount of P1,000.00 as indemnity.

    Petitioner Jose Entradicho was employed by respondent ABS-CBN Broadcasting Corporation (ABS-CBN) as cameraman on September 7, 1987 until his dismissal on August 4, 1989.

    It is undisputed that on July 15, 1989, petitioner did not report for the taping of an ABS-CBN production entitled "Kris at 18." The taping thereof was allegedly delayed, mishandled and haphazardly done to the damage and prejudice of ABS-CBN. The latter’s TV Engineering Director, Fernando Morales, directed petitioner to explain within 48 hours why no action should be taken against him for his absence on said date. He retorted that he brought his sick daughter to the hospital for immediate medical attention and borrowed from relatives the necessary funds to answer for the expenses which may be incurred. Morales accepted his explanation with a stern warning that a repetition of a similar offense would be meted a corresponding disciplinary action.

    On July 16, 1989, however, ABS-CBN’s Personnel Manager, Hermilindo 1 P. Ocampo, saw the name of the petitioner in the closing credits of the program "Supermodels" aired on People’s Television 4 (PTV 4), 2 a fact later confirmed by Engr. Tony Lidua of said station.

    With this discovery, Ocampo, required petitioner to report to him the circumstances regarding the July 15, 1989, incident. Petitioner denied deserting his assignment with ABS-CBN in favor of the production of "Supermodels." He admitted, however, that his fleeting stint with PTV 4 started only late in the afternoon of July 15, 1989, a job he was "forced to accept" because of an urgent financial need "to defray the medical expenses of his sick child." 3

    On August 2, 1989, petitioner was terminated from his employment on the ground of acts constituting disloyalty.

    In a complaint for illegal dismissal filed by petitioner against ABS-CBN, Labor Arbiter Oswald B. Lorenzo rendered a decision, the dispositive portion of which reads thus:jgc:chanrobles.com.ph

    "WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered as follows:chanrob1es virtual 1aw library

    1. Declaring the dismissal of complainant JOSE ENTRADICHO by respondent firm as having been illegally effected;

    2. Ordering respondent firm to immediately reinstate herein complainant to his former or substantially equivalent position without loss of seniority rights and benefits previously enjoyed;

    3. Ordering respondent to pay complainant his full back wages from 04 August 1989 up to 31 August 1990 or a total of FORTY-SIX THOUSAND NINETY-TWO PESOS AND TWENTY-FOUR CENTAVOS (P46,092.24), or a period of 12.97 months times P3,556.50 per month;

    4. Ordering the respondent to pay complainant the amount of ONE THOUSAND SEVEN HUNDRED SEVENTY EIGHT PESOS AND TWENTY-FIVE CENTAVOS (P1,778.25), representing his fifteen (15) days suspension or the equivalent one-half month pay;

    5. Ordering respondent to pay complainant for and as attorney’s fees the amount of FOUR THOUSAND SEVEN HUNDRED EIGHTY SEVEN AND FOUR CENTAVOS (P4,787.04), representing ten (10) per cent of the total award in this case.

    Finally respondent firm is hereby ordered to show compliance of the immediate reinstatement of complainant ENTRADICHO, either physically or merely in the payroll at the option of the former within five (5) days from receipt of this decision."cralaw virtua1aw library

    On appeal, the NLRC set aside said decision and dismissed the case for lack of merit, but ABS-CBN was ordered to indemnify petitioner in the amount of P1,000.00 for its non-observance of due process in the termination of his services. Without filing any motion for reconsideration of the NLRC’s decision, petitioner filed the instant special civil action.chanroblesvirtuallawlibrary

    The petition must be dismissed.

    At the outset, the instant petition is procedurally defective for failure of petitioner to file a motion for reconsideration with the NLRC before availing of the special civil action of certiorari. In the case of Building Care Corporation v. NLRC, 4 the Court declared that this premature action constitutes a fatal infirmity thus:jgc:chanrobles.com.ph

    ". . . The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against the acts of public Respondent. In the instant case, the plain and adequate remedy expressly provided by the law was a motion for reconsideration of the assailed decision, based on palpable or patent errors, to be made under oath and filed within ten (10) days from receipt of the questioned decision.

    (T)he filing of such a motion is intended to afford public respondent an opportunity to correct any actual or fancied error attributed to it by way of a re-examination of the legal and factual aspects of the case. Petitioner’s inaction or negligence under the circumstances is tantamount to a deprivation of the right and opportunity of the respondent Commission to cleanse itself of an error unwillingly committed or to vindicate itself of an act unfairly imputed. . . .

    . . . And for failure to avail of the correct remedy expressly provided by law, petitioner has permitted the subject Resolution to become final and executory after the lapse of the ten day period within which to file such motion for reconsideration."cralaw virtua1aw library

    A motion for reconsideration is indispensable for it affords the NLRC an opportunity to rectify errors or mistakes it might have committed before resort to the courts can be had. 5 We had an occasion to stress this significant matter in Zapata v. NLRC, 6 where we ruled in this wise:jgc:chanrobles.com.ph

    "Petitioner cannot, on its bare and self-serving representation that reconsideration is unnecessary, unilaterally disregard what the law requires and deny respondent NLRC its right to review its pronouncements before being haled to court to account therefor. On policy considerations, such prerequisite would provide an expeditious termination to labor disputes and assist in the decongestion of court dockets by obviating improvident and unnecessary recourse to judicial proceedings. The present case exemplifies the very contingency sought to be, and which could have been, avoided by the observance of said rules."cralaw virtua1aw library

    Rule VII, Section 14 of the NLRC Rules of Procedure provides that motions for reconsideration must be filed within ten (10) calendar days from receipt of the order, resolution, or decision of the NLRC, 7 a procedure which is jurisdictional. Hence certiorari, as in this case, will not prosper. 8 Section 1, Rule 65 of the 1997 Rules of Civil Procedure clearly provides that:jgc:chanrobles.com.ph

    "Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, an adequate remedy in the ordinary course of law, a person aggrieved thereby may file a a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

    x       x       x"

    In the absence of a motion for reconsideration filed within the ten-day reglementary period, the assailed order, resolution, or decision of the NLRC becomes final and executory after ten calendar days from receipt thereof. 9

    On the merits, we find no persuasive reason to depart from the NLRC’s decision.

    It must be noted that under Article XIII, Section 1, paragraph 10 of the ABS-CBN collective bargaining agreement:jgc:chanrobles.com.ph

    "The COMPANY and UNION agree that in order to render efficient, competent and competitive service to the public, the COMPANY must maintain a high standard of operation. For this reason, the COMPANY and the UNION agree that the following acts of an employee are subject to disciplinary measures and shall warrant dismissal.

    x       x       x


    (1) Gross inefficiency and acts of disloyalty

    . . . (Emphasis supplied)."cralaw virtua1aw library

    The NLRC correctly declared that by rendering his services to a business rival, petitioner was not only guilty of acts of disloyalty but also of serious misconduct and willful breach of trust which under the Labor Code, as amended, are valid and just grounds for the termination of an employment.

    A dismissal, however, must not only be for a valid or substantial cause; the employer must also observe the procedural aspect of due process by giving the employee proper notice and the opportunity to be heard and to defend himself. 10 Rule XIV, Section 2 of the Implementing Rules and Regulations of the Labor Code provides that:jgc:chanrobles.com.ph

    "Notice of Dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omissions constituting the grounds for his dismissal (Emphasis supplied)

    x       x       x"

    Hermilindo P. Ocampo’s memorandum to petitioner was worded in this wise:jgc:chanrobles.com.ph

    "You are hereby required to report to the undersigned to answer certain allegations and statements presented to the attention of Personnel in connection with your absence last Saturday, July 15, 1989. "11

    We adopt the ruling of the Labor Arbiter on this point. The memorandum hinges only on "allegations and statements" supposedly prejudicial to petitioner, without, however, indicating explicitly the circumstances surrounding the same, thus violating the aforementioned rule and regulations of the Labor Code. The Labor Code requires the employer to furnish the employee with a written notice containing a statement of the cause for termination and to afford said employee ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires. Moreover, the employer is also required to notify the worker in writing of the decision to dismiss him stating clearly the reasons therefore. 12

    As to the consequence of the failure to observe the requirement of due process in the dismissal of an employee, we ruled in Aurelio v. NLRC, 13 that in cases where there was a valid ground to dismiss an employee but there was non-observance of due process, this Court held that only a sanction must be imposed upon the employer for failure to give formal notice and to conduct an investigation required by law before dismissing the employee in consonance with the ruling in Wenphil v. NLRC, 170 SCRA 69 (1989); Shoemart, Inc. v. NLRC, supra; and in Pacific Mills, Inc. v. Zenaida Alonzo, 199 SCRA 617 (1991). . . . In the Pacific Mills, Inc., and Wenphil cases, this Court awarded P1,000.00 as penalty for non-observance of due process."cralaw virtua1aw library

    In the recent case of MGG Marine Services, Inc. et. al. v. NLRC, 14 we held that the failure to show due process taints the dismissal. This does not mean however that the private respondent would be entitled to back wages or reinstatement or even separation pay. Under prevailing jurisprudence, one is entitled only to indemnity or damages, the amount of which depends on the peculiar circumstances of each case.

    WHEREFORE, the instant petition is DISMISSED. The decision of the National Labor Relations Commission dated July 12, 1993, is accordingly AFFIRMED in toto. No pronouncement as to costs.

    SO ORDERED.

    Regalado, Puno, and Mendoza, JJ., concur.

    Torres, Jr., J., is on leave.

    Endnotes:



    1. Sometimes referred to as Herminigildo and Hermelindo.

    2. Rollo, p. 52.

    3. Ibid, pp. 54-55.

    4. G.R. No. 94237, February 26, 1997, citing Interorient Maritime Enterprises, Inc., et al v. NLRC (G.R. No. 115497, September 16, 1996; Restituto C. Palomado v. National Labor Relations Commission, G.R. No. 96520, June 28, 1996; Pure Foods Corporation v. NLRC, 171 SCRA 415, 425, March 21, 1989; Philippine National Construction Corporation (PNCC) v. National Labor Relations Commission, 245 SCRA 668, 674-675, July 7, 1995).

    5. Gonpu Services Corporation v. NLRC, G.R. No. 111897, January 27, 1997.

    6. 175 SCRA 56 (1989).

    7. Flores v. NLRC, 256 SCRA 735 (1996).

    8. P.S. Aviles Placement Services/Surety and Insurance Company v. NLRC, G.R. No. 120990, October 9, 1996.

    9. Orient Express Placement Philippines and Dominador Batonga, Jr. v. NLRC, G.R. No. 124766, January 30, 1997.

    10. Labor v. NLRC, 248 SCRA 183 (1995).

    11. Rollo, pp. 55-56.

    12. Mirano, Et. Al. v. NLRC, G.R. No. 121112, March 19, 1997.

    13. 221 SCRA 432 (1993).

    14. G.R. No. 114313, July 29, 1996.

    G.R. No. 111211   July 24, 1997 - ABS-CBN EMPLOYEES UNION, ET AL., v. NLRC, ET AL.


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