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separate opinion

VITUG, J.:

I opine thusly:

I.

A. Just cause and due process are essential in order to make the dismissal of an employee valid and legal.

B. Where there is no just cause, the reinstatement of the employee and the payment of back salaries would be warranted and should be ordered. If the dismissal is attended by bad faith or if the employer acted in wanton or oppressive manner, moral and exemplary damages might additionally be awarded.

"ART. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith.

"xxx xxx xxx.

"ART. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." (Civil Code).

Separation pay can substitute for reinstatement if such reinstatement is not feasible, such as in case of a clearly strained employer-employee relationship (limited to managerial positions and contracts of employment predicated on trust and confidence) or when the work or position formerly held by the dismissed employee simply no longer exists.

C. Where there is just cause for dismissal but due process has not been properly observed by an employer, it would not be right to order either the reinstatement of the dismissed employee or the payment of backwages to him. In failing, however, to comply with the procedure prescribed by law in terminating the services of the employee, the employer must be deemed to have opted or, in any case, should be made liable, for the payment of separation pay. It might be pointed out that the notice to be given and the hearing to be conducted generally constitute the two-part due process requirement of law to be accorded to the employee by the employer. Nevertheless, peculiar circumstances might obtain in certain situations where to undertake the above steps would be no more than a useless formality and where, accordingly, it would not be imprudent to apply the res ipsa loquitur rule and award, in lieu of separation pay, nominal damages to the employee. The pertinent provisions of the Civil Code on nominal damages provide:

"ART. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which 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.

"ART. 2222. The court may award nominal damages in every obligation arising from any source enumerated in article 1157, or in every case where any property right has been invaded.

"ART. 2223. The adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns."

II.

In the case before us, I perceive no grave abuse of discretion on the part of either the Labor Arbiter or the National Labor Relations Commission in their assessment of the facts, as well as in their conclusions, including particularly the order for the payment of separation pay, in lieu of reinstatement, due to strained relationship considering private respondents high position in the company as "comptroller and over-all supervisor" concurrently as its "financial officer."

ALL TAKEN, I vote to dismiss the petition.