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DISSENTING OPINION

PUNO, J.:

The rule of audi alteram partem - - - hear the other side, is the essence of procedural due process. That a "party is not to suffer in person or in purse without an opportunity of being heard" is the oldest established principle in administrative law.¹ Today, the majority is ruling that the all important right of an employee to be notified before he is dismissed for a just or authorized cause is not a requirement of due process. This is a blow on the breadbasket of our lowly employees, a considerable erosion of their constitutional right to security of tenure, hence this humble dissenting opinion.

A review of our law on dismissal is in order.

I. DISMISSAL DUE TO JUST CAUSE

The law allowing dismissal of an employee due to a just cause is provided in Article 282 of the Labor Code:

"ART. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

(a)......Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b)......Gross and habitual neglect by the employee of his duties;

(c)......Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d)......Commission of the crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and

(e)......Other causes analogous to the foregoing."

The long established jurisprudence² is that to justify dismissal of an employee for a just cause, he must be given two kinds of notice by his employer, viz: (1) notice to apprise the employee of the particular acts or omissions for which the dismissal is sought, and (2) subsequent notice to inform him of the employers decision to dismiss him. Similarly, deeply ingrained is our ruling that these pre and post notice requirements are not mere technicalities but are requirements of due process.³cräläwvirtualibräry

Then came the case of Wenphil Corporation vs. NLRC and Mallare in 1989.⁴It is the majority view that Wenphil reversed the long standing policy of this Court on dismissal. This is too broad a reading of Wenphil. A careful statement of the facts of Wenphil and the ruling of this Court is thus proper.

First, the facts. The private respondent Roberto Mallare is the assistant head of the backroom department of petitioner Wenphil Corporation. At about 2:30 pm on May 20, 1985, Mallare had an altercation with his co-employee, Job Barrameda, about tending the Salad Bar. He slapped Barramedas cap, stepped on his foot, picked up an ice scooper and brandished it against the latter. He refused to be pacified by another employee who reported the incident to Delilah Hermosura, assistant manager. Hermosura summoned Mallare but the latter refused to see the former. It took a security guard to bring Mallare to Hermosura. Instead of making an explanation, Mallare shouted profane words against Hermosura. He declared that their altercation should only be settled by him and Barrameda.

The following morning, Mallare was suspended. In the afternoon, he was dismissed from the service. He received an official notice of his dismissal four (4) days later.

Mallare filed with the Labor Arbiter a complaint for illegal suspension, illegal dismissal and unfair labor practice. No hearing was conducted in view of the repeated absence of the counsel of Mallare. The parties submitted their respective position papers. On December 3, 1986, the Arbiter denied the complaint as he found Mallare guilty of grave misconduct and insubordination, which are just causes for dismissal. The Arbiter also ruled that Mallare was not denied due process. On appeal, the NLRC reversed. It held that Mallare was denied due process before he was dismissed. It ordered Mallares reinstatement and the payment of his one (1) year backwages.

On certiorari to this Court, we reversed the NLRC and reinstated the decision of the Arbiter with the modification that petitioner should pay to Mallare an indemnity of P1,000.00 for dismissing Mallare without any notice and hearing. We held:

"Petitioner insists that private respondent was afforded due process but he refused to avail of his right to the same; that when the matter was brought to the labor arbiter he was able to submit his position paper although the hearing cannot proceed due to the non-appearance of his counsel; and that the private respondent is guilty of serious misconduct in threatening or coercing a co-employee which is a ground for dismissal under Article 283 of the Labor Code.

The failure of petitioner to give private respondent the benefit of a hearing before he was dismissed constitutes an infringement of his constitutional right to due process of law and equal protection of the laws. The standards of due process in judicial as well as administrative proceedings have long been established. In its bare minimum due process of law simply means giving notice and opportunity to be heard before judgment is rendered.

The claim of petitioner that a formal investigation was not necessary because the incident, which gave rise to the termination of private respondent, was witnessed by his co-employees and supervisors, is without merit. The basic requirement of due process is that which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.

However, it is a matter of fact that when the private respondent filed a complaint against petitioner, he was afforded the right to an investigation by the labor arbiter. He presented his position paper as did the petitioner. If no hearing was had, it was the fault of private respondent as his counsel failed to appear at the scheduled hearings. The labor arbiter concluded that the dismissal of private respondent was for just cause. He was found guilty of grave misconduct and insubordination. This is borne by the sworn statements of witnesses. The Court is bound by this finding of the labor arbiter.

By the same token, the conclusion of the public respondent NLRC on appeal that private respondent was not afforded due process before he was dismissed is binding on this Court. Indeed, it is well taken and supported by the records. However, it can not justify a ruling that private respondent should be reinstated with back wages as the public respondent NLRC so decreed. Although belatedly, private respondent was afforded due process before the labor arbiter wherein the just cause of his dismissal had been established. With such finding, it would be arbitrary and unfair to order his reinstatement with back wages."

Three members of the Court filed concurring and dissenting opinions. Madam Justice Herrera opined that: (a) Mallare was dismissed for cause, hence, he is not entitled to reinstatement and backwages; (b) he was not denied due process; and (c) he has no right to any indemnity but to separation pay to cushion the impact of his loss of employment Mr. Justice Padilla took the view that: (1) Mallare was not entitled to reinstatement and backwages as he was guilty of grave misconduct and insubordination; (2) he was denied administrative due process; and (3) for making such denial, Wenphil should pay "separation pay (instead of indemnity) in the sum of P1,000.00." Madam Justice Cortes held that: (1) Mallare was not illegally dismissed; (2) he was not denied due process; (3) he was not entitled to indemnity; and (4) if P1,000.00 was to be imposed on Wenphil as an administrative sanction, it should form part of the public fund of the government.

I shall discuss later that Wenphil did not change our ruling that violation of the pre-dismissal notice requirement is an infringement of due process.

II. DISMISSAL DUE TO AUTHORIZED CAUSE

The applicable law on dismissal due to authorized cause is Article 283 of the Labor Code which provides:

ART. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the [Department] of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year."

In Sebuguero v. NLRC,⁵ we held thru our esteemed Chief Justice Davide that "the requirement of notice to both the employees concerned and the Department of Labor and Employment (DOLE) is mandatory and must be written and given at least one month before the intended date of retrenchment." We explained that the "notice to the DOLE is essential because the right to retrench is not an absolute prerogative of an employer but is subject to the requirement of law that retrenchment be proved to prevent losses. The DOLE is the agency that will determine whether the planned retrenchment is justified and adequately supported by fact."⁶Nonetheless, we ruled:

"The lack of written notice to the petitioners and to the DOLE does not, however, make the petitioners retrenchment illegal such that they are entitled to the payment of back wages and separation pay in lieu of reinstatement as they contend. Their retrenchment, for not having been effected with the required notices, is merely defective. In those cases where we found the retrenchment to be illegal and ordered the employees reinstatement and the payment of backwages, the validity of the cause for retrenchment, that is the existence of imminent or actual serious or substantial losses, was not proven. But here, such a cause is present as found by both the Labor Arbiter and the NLRC. There is only a violation by GTI of the procedure prescribed in Article 283 of the Labor Code in effecting the retrenchment of the petitioners.

It is now settled that where the dismissal of an employee is in fact for a just and valid cause and is so proven to be but he is not accorded his right to due process, i.e., he was not furnished the twin requirements of notice and the opportunity to be heard, the dismissal shall be upheld but the employer must be sanctioned for non-compliance with the requirements of or for failure to observe due process. The sanction, in the nature of indemnification or penalty, depends on the facts of each case and the gravity of the omission committed by the employer and has ranged from P1,000.00 as in the cases of Wenphil vs. National Labor Relations Commission, Seahorse Maritime Corp. v. National Labor Relations Commission, Shoemart, Inc. vs. National Labor Relations Commission, Rubberworld (Phils.) Inc. vs. National Labor Relations Commission, Pacific Mills, Inc. vs. Alonzo, and Aurelio vs. National Labor Relations Commission to P10,000.00 in Reta vs. National Labor Relations Commission and Alhambra Industries, Inc. vs. National Labor Relations Commission. More recently, in Worldwide Papermills, Inc. vs. National Labor Relations Commission, the sum of P5,000.00 was awarded to the employee as indemnification for the employers failure to comply with the requirements of procedural due process.

Accordingly, we affirm the deletion by the NLRC of the award of back wages. But because the required notices of the petitioners retrenchment were not served upon the petitioners and the DOLE, GTI must be sanctioned for such failure and thereby required to indemnify each of the petitioners the sum of P20,000.00 which we find to be just and reasonable under the circumstances of this case."

III. RE-EXAMINATION OF THE WENPHIL DOCTRINE:
FROM BAD TO WORSE

The minority of the Court has asked for a re-examination of Wenphil because as the majority correctly observed, "the number of cases involving dismissals without the requisite notice to the employee although effected for just or authorized causes suggests that the imposition of fine for violation of the notice requirement has not been effective in deterring violations of the notice requirement."

We must immediately set Wenphil in its proper perspective as it is a very exceptional case. Its doctrine must be limited to its distinct facts. Its facts therefore ought to be carefully examined again. In Wenphil, it was clearly established that the employee had a violent temper, caused trouble during office hours and even defied his superiors as they tried to pacify him. The employee was working for a fast food chain that served the public and where violence has no place. These facts were established only in the proceedings before the Labor Arbiter after the employee filed a complaint for illegal dismissal. There were no formal investigation proceedings before the employer as the employee was dismissed without any notice by the employer. Given these facts, we ruled that the pre-dismissal notice requirement was part of due process; nonetheless, we held that the employee was given due process as he was heard by the Labor Arbiter; we found that the proceedings before the Labor Arbiter proved that the employee was guilty of grave misconduct and insubordination; we concluded with the rule that it would be highly prejudicial to the interest of the employer to reinstate the employee, but the employer must indemnify the employee the amount of P1,000.00 for dismissing him without notice. We further held that "the measure of this award depends on the facts of each case and the gravity of the omission committed by the employer."⁷cräläwvirtualibräry

At the outset, I wish to emphasize that Wenphil itself held, and repeatedly held that "the failure of petitioner to give private respondent the benefit of a hearing before he was dismissed, constitutes an infringement of his constitutional right to due process of law and equal protection of the laws. The standards of due process of law in judicial as well as administrative proceedings have long been established. In its bare minimum due process of law simply means giving notice and opportunity to be heard before judgment is rendered."⁸ The Court then satisfied itself with this bare minimum when it held that the post dismissal hearing before the Labor Arbiter was enough compliance with the demands of due process and refused to reinstate an eminently undesirable employee. Heretofore, the Court was far from satisfied with this bare minimum as it strictly imposed on an employer compliance with the requirement of pre-dismissal notice, violation of which resulted in orders of reinstatement of the dismissed employee. This is the only wrinkle wrought by Wenphil in our jurisprudence on dismissal. Nonetheless, it should be stressed that the Court still punished Wenphils violation of the pre-dismissal notice requirement as it was ordered to pay an indemnity of P1,000.00 to the employee. The indemnity was based on the iterated and reiterated rule that "the dismissal of an employee must be for just or authorized cause and after due process."⁹cräläwvirtualibräry

Our ten (10) years experience with Wenphil is not a happy one. Unscrupulous employers have abused the Wenphil ruling. They have dismissed without notice employees including those who are not as eminently undesirable as the Wenphil employee. They dismissed employees without notice as a general rule when it should be the exception. The purpose of the pre-dismissal notice requirement was entirely defeated by employers who were just too willing to pay an indemnity for its violation. The result, as the majority concedes, is that the indemnity we imposed has not been effective to prevent unjust dismissals of employees. To be sure, this is even a supreme understatement. The ugly truth is that Wenphil is the mother of many unjust and unauthorized dismissals of employees who are too weak to challenge their powerful employees.

As the Wenphil indemnity doctrine has proved to be highly inimical to the interest of our employees, I humbly submit a return to the pre-Wenphil rule where a reasonless violation of the pre-dismissal notice requirement makes the dismissal of an employee illegal and results in his reinstatement. In fine, we should strike down as illegal the dismissal of an employee even if it is for a justified end if it is done thru unjustified means for we cannot be disciples of the Machiavellian doctrine of the end justifies the means. With due respect, the majority decision comes too near this mischievous doctrine by giving emphasis on the end and not the means of dismissal of employees. What grates is that the majority today espouses a doctrine more pernicious than Wenphil for now it announces that a violation of the pre-dismissal notice requirement does not even concern due process. The reasons relied upon by the majority for this new ruling against the job security of employees cannot inspire assent.

FIRST. I would like to emphasize that one undesirable effect of Wenphil is to compel employees to seek relief against illegal dismissals with the DOLE whereas before, a remedy can be sought before the employer. In shifting this burden, an employees uneven fight against his employer has become more uneven. Now, an illegally dismissed employee often goes to the DOLE without an exact knowledge of the cause of his dismissal. As a matter of strategy, some employers today dismiss employees without notice. They know that it is more advantageous for them to litigate with an employee who has no knowledge of the cause of dismissal. The probability is that said employee will fail to prove the illegality of his dismissal. All that he can prove is that he was dismissed without notice and the penalty for the omission is a mere fine, a pittance.

The case at bar demonstrates how disastrous Wenphil has been to our helpless employees. In holding that the petitioner failed to prove his cause of action, the majority held ". . . we have only the bare assertion of petitioner that, in abolishing the security section, private respondents real purpose was to avoid payment to the security checkers of the wage increases provided in the collective bargaining agreement approved in 1990." The bare assertion of the petitioner is understandable. The notice given to him spoke of a general ground - - - retrenchment. No details were given about the employers sudden retrenchment program. Indeed, the employee was dismissed on the day he received the notice in violation of the 30-day requirement. He was given no time, no opportunity to ascertain and verify the real cause of his dismissal. Thus, he filed with the DOLE a complaint for illegal dismissal with a hazy knowledge of its real cause. Heretofore, it is the employer whom we blame and penalize if he does not notify his employee of the cause of his dismissal. Today, the majority puts the blame on the employee for not knowing why he was dismissed when he was not given any notice of dismissal. In truth, the suspicion of the petitioner in the case at bar that he was dismissed to avoid payment of their wage increases is not without basis. The DOLE itself found that petitioner has unpaid wages which were ordered to be paid by the employer. The majority itself affirmed this finding.

What hurts is that while the majority was strict with the petitioner-employee, it was not so with the employer ISETANN. Immediately, it validated the finding of the NLRC that petitioner was dismissed due to the redundancy of his position. This is inconsistent with the finding of the Labor Arbiter that the employer failed to prove retrenchment, the ground it used to dismiss the petitioner. A perusal of the records will show that Ms. Cristina Ramos, Personnel Administration Manager of the employer ISETANN testified on the cause of dismissal of the petitioner. She declared that petitioner was retrenched due to the installation of a labor saving device. Allegedly, the labor saving device was the hiring of an independent security agency, thus:¹⁰cräläwvirtualibräry

"x x x

Atty. Perdigon:

......You said that your company decided to phase out the position of security checkers x x x

Ms. Ramos:

......Yes Sir.

Q:......And instead hired the services of a security agency?

A:......Yes, sir.

............x x x

Q:......Did you not retrench the position of security checkers?

A:......We installed a labor saving device.

Q:......So you did not retrench?

A:......No. sir.

Q:......How about the position of Section Head of Security Department?

A:......It was abolished in 1991.

............x x x

Q:......Are you aware of the retrenchment program of the company as stated in this letter?

A:......Actually its not a retrenchment program. Its an installation of a labor saving device.

Q:......So you are telling this Court now that there was no retrenchment program?

A:......It was actually an installation of a labor saving device (emphasis supplied).

............x x x

Q:......x x x What (is) this labor saving device that you are referring to?

A:......The labor saving device is that the services of a security agency were contracted to handle the services of the security checkers of our company.

Q:......Are you sure of what labor saving means, Madam witness?

A:......Yes, sir.

Q:......You said you installed a labor saving device, and you installed a security agency as a labor saving device?

A:......We hired the services of a security agency.

Q:......So according to you x x x a security agency is a labor saving device?

Atty. Salonga:

......Already answered, your Honor."

Obviously, Ms. Ramos could not even distinguish between retrenchment and redundancy. The Labor Arbiter thus ruled that petitioners dismissal was illegal. The NLRC, however, reversed. The majority affirmed the NLRC ruling that ISETANNs phase out of its security employees is a legitimate business decision, one that is necessary to obtain reasonable return from its investment. To use the phrase of the majority, this is a "bare assertion." Nothing in the majority decision shows how the return of ISETANNs investment has been threatened to justify its so-called business decision as legitimate.

SECOND. The majority holds that "the need is for a rule which, while recognizing the employees right to notice before he is dismissed or laid off, at the same time acknowledges the right of the employer to dismiss for any of the just causes enumerated in Art. 282 or to terminate employment for any of the authorized causes mentioned in Arts. 283-284. If the Wenphil rule imposing a fine on an employer who is found to have dismissed an employee for cause without prior notice is deemed ineffective in deterring employer violations of the notice requirement, the remedy is not to declare the dismissal void if there are just or valid grounds for such dismissal or if the termination is for an authorized cause. That would be to uphold the right of the employee but deny the right of the employer to dismiss for cause. Rather, the remedy is to consider the dismissal or termination to be simply ineffectual for failure of the employer to comply with the procedure for dismissal or termination."

With due respect, I find it most difficult to follow the logic of the majority. Before Wenphil, we protected employees with the ruling that dismissals without prior notice are illegal and the illegally dismissed employee must be reinstated with backwages. Wenphil diluted that rule when it held that due process is satisfied if the employee is given the opportunity to be heard by the Labor Arbiter. It further held that an employee cannot be reinstated if it is established in the hearing that his dismissal is for a just cause. The failure of the employer to give a pre-dismissal notice is only to be penalized by payment of an indemnity. The dilution of the rule has been abused by unscrupulous employers who then followed the "dismiss now, pay later" strategy. This evil practice of employers was what I expected the majority to address in re-examining the Wenphil doctrine. At the very least, I thought that the majority would restore the balance of rights between an employee and an employer by giving back the employees mandatory right to notice before dismissal. It is disquieting, however, that the majority re-arranged this balance of right by tilting it more in favor of the employers right to dismiss. Thus, instead of weakening a bit the right to dismiss of employers, the majority further strengthens it by insisting that a dismissal without prior notice is merely "ineffectual" and not illegal.

The stubborn refusal of the majority to appreciate the importance of pre-dismissal notice is difficult to understand. It is the linchpin of an employees right against an illegal dismissal. The notice tells him the cause of his dismissal. It gives him a better chance to contest his dismissal in an appropriate proceeding as laid down in the parties collective bargaining agreement or the rules of employment established by the employer, as the case may be. In addition, it gives to both the employee and employer more cooling time to settle their differences amicably. In fine, the prior notice requirement and the hearing before the employer give an employee a distinct, different and effective first level of remedy to protect his job. In the event the employee is dismissed, he can still file a complaint with the DOLE with better knowledge of the cause of his dismissal, with longer time to prepare his case, and with greater opportunity to take care of the financial needs of his family pendente lite. The majority has taken away from employees this effective remedy. This is not to say that the pre-dismissal notice requirement equalizes the fight between an employee and an employer for the fight will remain unequal. This notice requirement merely gives an employee a fighting chance but that fighting chance is now gone.

It is equally puzzling why the majority believes that restoring the employees right to pre-dismissal notice will negate the right of an employer to dismiss for cause. The pre-Wenphil rule simply requires that before the right of the employer to dismiss can be exercised, he must give prior notice to the employee of its cause. There is nothing strange nor difficult about this requirement. It is no burden to an employer. He is bereft of reason not to give the simple notice. If he fails to give notice, he can only curse himself. He forfeits his right to dismiss by failing to follow the procedure for the exercise of his right. Employees in the public sector cannot be dismissed without prior notice. Equal protection of law demands similar treatment of employees in the private sector.

THIRD. The case at bar specifically involves Article 283 of the Labor Code which lays down four (4) authorized causes for termination of employment.¹¹These authorized causes are: (1) installation of labor-saving devices; (2) redundancy; (3) retrenchment to prevent losses; and (4) closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the law. It also provides that prior to the dismissal of an employee for an authorized cause, the employer must send two written notices at least one month before the intended dismissal -- one notice to the employee and another notice to the Department of Labor and Employment (DOLE). We have ruled that the right to dismiss on authorized causes is not an absolute prerogative of an employer.¹² We explained that the notice to the DOLE is necessary to enable it to ascertain the truth of the cause of termination.¹³ The DOLE is equipped with men and machines to determine whether the planned closure or cessation of business or retrenchment or redundancy or installation of labor saving device is justified by economic facts.¹⁴ For this reason too, we have held that notice to the employee is required to enable him to contest the factual bases of the management decision or good faith of the retrenchment or redundancy before the DOLE.¹⁵ In addition, this notice requirement gives an employee a little time to adjust to his joblessness.¹⁶cräläwvirtualibräry

The majority insists that if an employee is laid off for an authorized cause under Article 283 in violation of the prior notice requirement, his dismissal should not be considered void but only ineffectual. He shall not be reinstated but paid separation pay and some backwages. I respectfully submit that an employee under Article 283 has a stronger claim to the right to a pre-dismissal notice and hearing. To begin with, he is an innocent party for he has not violated any term or condition of his employment. Moreover, an employee in an Article 283 situation may lose his job simply because of his employers desire for more profit. Thus, the installation of a labor saving device is an authorized cause to terminate employment even if its non-installation need not necessarily result in an over-all loss to an employer possessed by his possessions. In an Article 283 situation, it is easy to see that there is a greater need to scrutinize the allegations of the employer that he is dismissing an employee for an authorized cause. The acts involved here are unilateral acts of the employer. Their nature requires that they should be proved by the employer himself. The need for a labor saving device, the reason for redundancy, the cause for retrenchment, the necessity for closing or cessation of business are all within the knowledge of the employer and the employer alone. They involve a constellation of economic facts and factors usually beyond the ken of knowledge of an ordinary employee. Thus, the burden should be on the employer to establish and justify these authorized causes. Due to their complexity, the law correctly directs that notice should be given to the DOLE for it is the DOLE more than the lowly employee that has the expertise to validate the alleged cause in an appropriate hearing. In fine, the DOLE provides the equalizer to the powers of the employer in an Article 283 situation. Without the equalizing influence of DOLE, the employee can be abused by his employer.

Further, I venture the view that the employees right to security of tenure guaranteed in our Constitution calls for a pre-dismissal notice and hearing rather than a post facto dismissal hearing. The need for an employee to be heard before he can be dismissed cannot be overemphasized. As aforestated, in the case at bar, petitioner was a regular employee of ISETANN. He had the right to continue with his employment. The burden to establish that this right has ceased is with ISETANN, as petitioners employer. In fine, ISETANN must be the one to first show that the alleged authorized cause for dismissing petitioner is real. And on this factual issue, petitioner must be heard. Before the validity of the alleged authorized cause is established by ISETANN, the petitioner cannot be separated from employment. This is the simple meaning of security of tenure. With due respect, the majority opinion will reduce this right of our employees to a mere illusion. It will allow the employer to dismiss an employee for a cause that is yet to be established. It tells the employee that if he wants to be heard, he can file a case with the labor arbiter, then the NLRC, and then this Court. Thus, it unreasonably shifts the burden to the employee to prove that his dismissal is for an unauthorized cause.

The pernicious effects of the majority stance are self-evident in the case at bar. For one, petitioner found himself immediately jobless and without means to support his family. For another, petitioner was denied the right to rely on the power of DOLE to inquire whether his dismissal was for a genuine authorized cause. This is a valuable right for all too often, a lowly employee can only rely on DOLEs vast powers to check employer abuses on illegal dismissals. Without DOLE, poor employees are preys to the claws of powerful employers. Last but not the least, it was the petitioner who was forced to file a complaint for illegal dismissal. To a jobless employee, filing a complaint is an unbearable burden due to its economic cost. He has to hire a lawyer and defray the other expenses of litigation while already in a state of penury. At this point, the hapless employee is in a no win position to fight for his right. To use a local adage, "aanhin pa ang damo kung patay na ang kabayo."

In the case at bar, the job of the petitioner could have been saved if DOLE was given notice of his dismissal. The records show that petitioner worked in ISETANN as security checker for six (6) years. He served ISETANN faithfully and well. Nonetheless, in a desire for more profits, and not because of losses, ISETANN contracted out the security work of the company. There was no effort whatsoever on the part of ISETANN to accommodate petitioner in an equivalent position. Yet, there was the position of Safety and Security Supervisor where petitioner fitted like a perfect T. Despite petitioners long and loyal service, he was treated like an outsider, made to apply for the job, and given a stringent examination which he failed. Petitioner was booted out and given no chance to contest his dismissal. Neither was the DOLE given the chance to check whether the dismissal of petitioner was really for an authorized cause. All these because ISETANN did not follow the notice and hearing requirement of due process.

FOURTH. The majority has inflicted a most serious cut on the job security of employees. The majority did nothing to restore the pre-Wenphil right of employees but even expanded the right to dismiss of employer by holding that the pre-dismissal notice requirement is not even a function of due process. This seismic shift in our jurisprudence ought not to pass.

The key to the new majority ruling is that the "due process clause of the Constitution is a limitation on governmental powers. It does not apply to the exercise of private power such as the termination of employment under the Labor Code." The main reason alleged is that "only the State has authority to take the life, liberty, or property of the individual. The purpose of the Due Process Clause is to ensure that the exercise of this power is consistent with settled usage of civilized society."

There can be no room for disagreement on the proposition that the due process clause found in the Bill of Rights of the Constitution is a limitation on governmental powers. Nor can there be any debate that acts of government violative of due process are null and void. Thus, former Chief Justice Roberto Concepcion emphasized in Cuaycong v. Senbengco¹⁷ that "x x x acts of Congress as well as those of the Executive, can deny due process only under pain of nullity, and judicial proceedings suffering from the same flaw are subject to the same sanction, any statutory provision to the contrary notwithstanding." With due respect to the majority, however, I part ways with the majority in its new ruling that the due process requirement does not apply to the exercise of private power. This overly restrictive majority opinion will sap the due process right of employees of its remaining utility. Indeed, the new majority opinion limiting violations of due process to government action alone is a throwback to a regime of law long discarded by more progressive countries. Today, private due process is a settled norm in administrative law. Perhwartz, a known authority in the field, viz:¹⁸cräläwvirtualibräry

"Private Due Process

As already stressed, procedural due process has proved of an increasingly encroaching nature. Since Goldberg v. Kelly, the right to be heard has been extended to an ever-widening area, covering virtually all aspects of agency action, including those previously excluded under the privilege concept. The expansion of due process has not been limited to the traditional areas of administrative law. We saw how procedural rights have expanded into the newer field of social welfare, as well as that of education. But due process expansion has not been limited to these fields. The courts have extended procedural protections to cases involving prisoners and parolees, as well as the use of established adjudicatory procedures. Important Supreme Court decisions go further and invalidate prejudgment wage garnishments and seizures of property under replevin statutes where no provision is made for notice and hearing. But the Court has not gone so far as to lay down an inflexible rule that due process requires an adversary hearing when an individual may be deprived of any possessory interest, however brief the dispossession and however slight the monetary interest in the property. Due process is not violated where state law requires, as a precondition to invoking the states aid to sequester property of a defaulting debtor, that the creditor furnish adequate security and make a specific showing of probable cause before a judge.

In addition, there has been an extension of procedural due process requirements from governmental to private action. In Section 5.16 we saw that Goldberg v. Kelly has been extended to the eviction of a tenant from a public housing project. The courts have not limited the right to be heard to tenants who have governmental agencies as landlords. Due process requirements also govern acts by "private" landlords where there is sufficient governmental involvement in the rented premises. Such an involvement exists in the case of housing aided by Federal Housing Administration financing and tax advantages. A tenant may not be summarily evicted from a building operated by a "private" corporation where the corporation enjoyed substantial tax exemption and had obtained an FHA-insured mortgage, with governmental subsidies to reduce interest payments. The "private" corporation was so saturated with governmental incidents as to be limited in its practices by constitutional due process. Hence, it could not terminate tenancies without notice and an opportunity to be heard."

But we need not rely on foreign jurisprudence to repudiate the new majority ruling that due process restricts government alone and not private employers like ISETANN. This Court has always protected employees whenever they are dismissed for an unjust cause by private employers. We have consistently held that before dismissing an employee for a just cause, he must be given notice and hearing by his private employer. In Kingsize Manufacturing Corporation vs. NLRC,¹⁹ this Court, thru Mr. Justice Mendoza, categorically ruled:

"x x x (P)etitioners failure to give notice with warning to the private respondents before their services were terminated puts in grave doubt petitioners claim that dismissal was for a just cause. Section 2 Rule XIV of the Rules implementing the Labor Code provides:

"An employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omission constituting the ground for dismissal. In case of abandonment of work, the notice shall be served on the workers last known address.

"The notice required, xxx, actually consists of two parts to be separately served on the employee, to wit: (1) notice to apprise the employee of the particular acts or omissions for which the dismissal is sought; and (2) subsequent notice to inform him of the employers decision to dismiss him.

"This requirement is not a mere technicality but a requirement of due process to which every employee is entitled to insure that the employers prerogative to dismiss or lay off is not abused or exercised in an arbitrary manner. This rule is clear and unequivocal xxx."²⁰cräläwvirtualibräry

In other words, we have long adopted in our decisions the doctrine of private due process. This is as it ought to be. The 1987 Constitution guarantees the rights of workers, especially the right to security of tenure in a separate article - - - section 3 of Article XIII entitled Social Justice and Human Rights. Thus, a 20-20 vision of the Constitution will show that the more specific rights of labor are not in the Bill of Rights which is historically directed against government acts alone. Needless to state, the constitutional rights of labor should be safeguarded against assaults from both government and private parties. The majority should not reverse our settled rulings outlawing violations of due process by employers in just causes cases.

To prop up its new ruling against our employees, the majority relates the evolution of our law on dismissal starting from Article 302 of the Spanish Code of Commerce, to the New Civil Code of 1950, to R.A. No. 1052 (Termination Pay Law), then to RA No. 1787. To complete the picture, let me add that on May 1, 1974, the Labor Code (PD 442) was signed into law by former President Marcos. It took effect on May 1, 1974 or six months after its promulgation. The right of the employer to terminate the employment was embodied in Articles 283,²¹ 284,²² and 285.²³ Batas Pambansa Blg. 130 which was enacted on August 21, 1981 amended Articles 283 and 284, which today are cited as Arts. 282 and 283 of the Labor Code.²⁴cräläwvirtualibräry

On March 2, 1989, Republic Act No. 6715 was approved which amended, among others, Article 277 of the Labor Code. Presently, Article 277 (b) reads:

"Art. 277. Miscellaneous provisions. (a) xxx.

"(b)......Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just or 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 the 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. x x x."

Previous to the amendment, Article 277 (b) read:

"Article 277. Miscellaneous provisions. (a) xxx.

"(b) With or without a collective agreement, no employer may shut down his establishment or dismiss or terminate the employment of employees with at least one year of service during the last two years, whether such service is continuous or broken, without prior written authority issued in accordance with the rules and regulations as the Secretary may promulgate."

Rule XIV, Book V of the 1997 Omnibus Rules Implementing the Labor Code provides:

"Termination of Employment

"Sec. 1. Security of tenure and due process. No worker shall be dismissed except for a just or authorized cause provided by law and after due process.

"Sec. 2. 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. xxx

x x x

"Sec. 5. Answer and hearing. The worker may answer the allegations stated against him in the notice of dismissal within a reasonable period from receipt of such notice. The employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires."

These laws, rules and regulations should be related to our decisions interpreting them. Let me therefore emphasize our rulings holding that the pre-dismissal notice requirement is part of due process. In Batangas Laguna Tayabas Bus Co. vs. Court of Appeals,²⁵ which was decided under the provisions of RA No. 1052 as amended by RA No. 1787, this Court ruled that "the failure of the employer to give the [employee] the benefit of a hearing before he was dismissed constitute an infringement on his constitutional right to due process of law and not to be denied the equal protection of the laws. xxx. Since the right of [an employee] to his labor is in itself a property and that the labor agreement between him and [his employer] is the law between the parties, his summary and arbitrary dismissal amounted to deprivation of his property without due process." Since then, we have consistently held that before dismissing an employee for a just cause, he must be given notice and hearing by his private employer as a matter of due process.

I respectfully submit that these rulings are more in accord with the need to protect the right of employees against illegal dismissals. Indeed, our laws and our present Constitution are more protective of the rights and interests of employees than their American counterpart. For one, to justify private due process, we need not look for the factors of "sufficient governmental involvement" as American courts do. Article 1700 of our Civil Code explicitly provides:

"Art. 1700. The relation between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects."

Nor do we have to strain on the distinction made by American courts between property and privilege and follow their ruling that due process will not apply if what is affected is a mere privilege. It is our hoary ruling that labor is property within the contemplation of the due process clause of the Constitution. Thus, in Philippine Movie Pictures Workers Association vs. Premiere Productions, Inc.,²⁶ private respondent-employer filed with the Court of Industrial Relations (CIR) a petition seeking authority to lay off forty-four of its employees. On the date of the hearing of the petition, at the request of the counsel of the private respondent, the judge of the CIR conducted an ocular inspection in the premises of the employer. He interrogated fifteen laborers. On the basis of the ocular inspection, the judge concluded that the petition for lay off was justified. We did not agree and we ruled that "the right of a person to his labor is deemed to be property within the meaning of constitutional guarantees. That is his means of livelihood. He can not be deprived of his labor or work without due process of law. xxx (T)here are certain cardinal primary rights which the Court of Industrial Relations must respect in the trial of every labor case. One of them is the right to a hearing which includes the right of the party interested to present his own case and to submit evidence in support thereof."

I wish also to stress that the 1999 Rules and Regulations implementing the Labor Code categorically characterize this pre-dismissal notice requirement as a requirement of due process. Rule XXIII provides:

"Section 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 written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and

(c) A written notice of termination served on the employee indicating that upon due consideration of all the circumstance, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employees last known address.

II.......For termination of employment as based on authorized causes defined in Article 283 of the Code, the requirements of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department at least thirty (30) days before the effectivity of the termination, specifying the ground or grounds for termination.

The new ruling of the majority is not in consonance with this Rule XXIII.

If we are really zealous of protecting the rights of labor as called for by the Constitution, we should guard against every violation of their rights regardless of whether the government or a private party is the culprit. Section 3 of Article XIII of the Constitution requires the State to give full protection to labor. We cannot be faithful to this duty if we give no protection to labor when the violator of its rights happens to be private parties like private employers. A private person does not have a better right than the government to violate an employees right to due process. To be sure, violation of the particular right of employees to security of tenure comes almost always from their private employers. To suggest that we take mere geriatric steps when it comes to protecting the rights of labor from infringement by private parties is farthest from the intent of the Constitution. We trivialize the right of the employee if we adopt the rule allowing the employer to dismiss an employee without any prior hearing and say let him be heard later on. To a dismissed employee that remedy is too little and too late. The new majority ruling is doubly to be regretted because it comes at a time when deregulation and privatization are buzzwords in the world being globalized. In such a setting, the new gods will not be governments but non-governmental corporations. The greater need of the day therefore is protection from illegal dismissals sans due process by these non-governmental corporations.

The majority also holds that the "third reason why the notice requirement under Art. 283 is not a requirement of due process is that the employer cannot really be expected to be entirely an impartial judge of his own cause. This is also the case in termination of employment for a just cause under Art. 282." Again, with due respect, I beg to disagree. In an Article 283 situation, dismissal due to an authorized cause, the employer is not called upon to act as an impartial judge. The employer is given the duty to serve a written notice on the worker and the DOLE at least one month before the intended date of lay-off. It is the DOLE, an impartial agency that will judge whether or not the employee is being laid off for an authorized caused.²⁷ It is not the employer who will adjudge whether the alleged authorized cause for dismissing the employee is fact or fiction. On the other hand, in an Article 282 situation, dismissal for a just cause, it is also incorrect to hold that an employer cannot be an impartial judge. Today, the procedure on discipline and dismissal of employees is usually defined in the parties collective bargaining agreement or in its absence, on the rules and regulations made by the employer himself. This procedure is carefully designed to be bias free for it is to the interest of both the employee and the employer that only a guilty employee is disciplined or dismissed. Hence, where the charge against an employee is serious, it is standard practice to include in the investigating committee an employee representative to assure the integrity of the process. In addition, it is usual practice to give the aggrieved employee an appellate body to review an unfavorable decision. Stated otherwise, the investigators are mandated to act impartially for to do otherwise can bring havoc less to the employee but more to the employer. For one, if the integrity of the grievance procedure becomes suspect, the employees may shun it and instead resort to coercive measures like picketing and strikes that can financially bleed employers. For another, a wrong, especially a biased judgment can always be challenged in the DOLE and the courts and can result in awards of huge damages against the company. Indeed, the majority ruling that an employer cannot act as an impartial judge has no empirical evidence to support itself. Statistics in the DOLE will prove the many cases won by employees before the grievance committees manned by impartial judges of the company.

Next, the majority holds that "the requirement to hear an employee before he is dismissed should be considered simply as an application of the Justinian precept, embodied in the Civil Code, to act with justice, give everyone his due, and observe honesty and good faith toward ones fellowmen." It then rules that violation of this norm will render the employer liable for damages but will not render his act of dismissal void. Again, I cannot join the majority stance. The faultline of this ruling lies in the refusal to recognize that employer-employee relationship is governed by special labor laws and not by the Civil Code. The majority has disregarded the precept that relations between capital and labor are impressed with public interest. For this reason, we have the Labor Code that specially regulates the relationship between employer-employee including dismissals of employees. Thus, Article 279 of the Labor Code specifically provides that "in cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement." This provision of the Labor Code clearly gives the remedies that an unjustly dismissed employee deserves. It is not the Civil Code that is the source of his remedies.

The majority also holds that lack of notice in an Article 283 situation merely makes an employee dismissal "ineffectual" but not illegal. Again, the ruling is sought to be justified by analogy and our attention is called to Article 1592, in relation to Article 1191 of the Civil Code. It is contended that "under these provisions, while the power to rescind is implied in reciprocal obligations, nonetheless, in cases involving the sale of immovable property, the vendor cannot rescind the contract even though the vendee defaults in the payment of the price, except by bringing an action in court or giving notice of rescission by means of a notarial demand." The analogy of the majority cannot be allowed both in law and in logic. The legal relationship of an employer to his employee is not similar to that of a vendor and a vendee. An employee suffers from a distinct disadvantage in his relationship with an employer, hence, the Constitution and our laws give him extra protection. In contrast, a vendor and a vendee in a sale of immovable property are at economic par with each other. To consider an employer-employee relationship as similar to a sale of commodity is an archaic abomination. An employer-employee relationship involves the common good and labor cannot be treated as a mere commodity. As well-stated by former Governor General Leonard Wood in his inaugural message before the 6th Philippine Legislature on October 27, 1922, "it is opportune that we strive to impress upon all the people that labor is neither a chattel nor a commodity, but human and must be dealt with from the standpoint of human interests."

Next, the majority holds that under the Labor Code, only the absence of a just cause for the termination of employment can make the dismissal of an employee illegal. Quoting Article 279 which provides:

"Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement."

it is then rationalized that "to hold that the employers failure to give notice before dismissing an employee xxx results in the nullity of the dismissal would, in effect, be to amend Article 279 by adding another ground, for considering a dismissal illegal." With due respect, the majority has misread Article 279. To start with, the article is entitled "Security of Tenure" and therefore protects an employee against dismissal not only for an unjust cause but also for an unauthorized cause. Thus, the phrase "unjustly dismissed" refers to employees who are dismissed without just cause and to employees who are laid off without any authorized cause. As heretofore shown, we have interpreted dismissals without prior notice as illegal for violating the right to due process of the employee. These rulings form part of the law of the land and Congress was aware of them when it enacted the Labor Code and when its implementing rules and regulations were promulgated especially the rule ordering employers to follow due process when dismissing employees. Needless to state, it is incorrect for the majority to urge that we are in effect amending Article 279.

In further explication of its ruling, the majority contends "what is more, it would ignore the fact that under Art. 285, if it is the employee who fails to give a written notice to the employer that he is leaving the service of the latter, at least one month in advance, his failure to comply with the legal requirement does not result in making his resignation void but only in making him liable for damages." Article 285(a) states: "An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages."

In effect, the majority view is that its new ruling puts at par both the employer and the employee - - - under Article 285, the failure of an employee to pre-notify in writing his employer that he is terminating their relationship does not make his walk-out void; under its new ruling, the failure of an employer to pre-notify an employee before his dismissal does not also render the dismissal void. By this new ruling, the majority in a short stroke has rewritten the law on dismissal and tampered its pro-employee philosophy. Undoubtedly, Article 285 favors the employee as it does not consider void his act of terminating his employment relationship before giving the required notice. But this favor given to an employee just like the other favors in the Labor Code and the Constitution are precisely designed to level the playing field between the employer and the employee. It cannot be gainsaid that employees are the special subject of solicitous laws because they have been and they continue to be exploited by unscrupulous employers. Their exploitation has resulted in labor warfare that has broken industrial peace and slowed down economic progress. In the exercise of their wisdom, the founding fathers of our 1935, 1973 and 1987 Constitutions as well as the members our past and present Congresses, have decided to give more legal protection and better legal treatment to our employees in their relationship with their employer. Expressive of this policy is President Magsaysays call that "he who has less in life should have more in law." I respectfully submit that the majority cannot revise our laws nor shun the social justice thrust of our Constitution in the guise of interpretation especially when its result is to favor employers and disfavor employees. The majority talks of high nobility but the highest nobility it to stoop down to reach the poor.

IV. NO UNJUST RESULTS OF CONSIDERING DISMISSALS
WITHOUT PRIOR NOTICE AS ILLEGAL

The majority further justifies its new ruling by holding:

"The refusal to look beyond the validity of the initial action taken by the employer to terminate employment either for an authorized or just cause can result in an injustice to the employer. For not having been given notice and hearing before dismissing an employee, who is otherwise guilty of, say, theft, or even of an attempt against the life of the employer, an employer will be forced to keep in his employ such guilty employee. This is unjust.

It is true the Constitution regards labor as "a primary social economic force." But so does it declare that it "recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investment." The Constitution bids the State to "afford full protection to labor." But it is equally true that "the law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer." And it is oppression to compel the employer to continue in employment one who is guilty or to force the employer to remain in operation when it is not economically in his interest to do so."

With due respect, I cannot understand this total turnaround of the majority on the issue of the unjustness of lack of pre-dismissal notice to an employee. Heretofore, we have always considered this lack of notice as unjust to the employee. Even under Article 302 of the Spanish Code of Commerce of 1882 as related by the majority, an employer who opts to dismiss an employee without any notice has to pay a mesada equivalent to his salary for one month because of its unjustness. This policy was modified by our legislators in favor of a more liberal treatment of labor as our country came under the influence of the United States whose major labor laws became the matrix of our own laws like R.A. 875, otherwise known as the Industrial Peace Act. In accord with these laws, and as aforediscussed, we laid down the case law that dismissals without prior notice offend due process. This is the case law when the Labor Code was enacted on May 1, 1974 and until now despite its amendments. The 1935 and the 1973 Constitutions did not change this case law. So with the 1987 Constitution which even strengthened the rights of employees, especially their right to security of tenure. Mr. Justice Laurel in his usual inimitable prose expressed this shift in social policy in favor of employees as follows:

"It should be observed at the outset that our Constitution was adopted in the midst of surging unrest and dissatisfaction resulting from economic and social distress which was threatening the stability of governments the world over. Alive to the social and economic forces at work, the framers of our Constitution boldly met the problems and difficulties which faced them and endeavored to crystallize, with more or less fidelity, the political, social and economic propositions of their age, and this they did, with the consciousness that the political and philosophical aphorism of their generation will, in the language of a great jurist, `be doubted by the next and perhaps entirely discarded by the third. (Chief Justice Winslow in Gorgnis v. Falk Co., 147 Wis., 327; 133 N. W., 209). Embodying the spirit of the present epoch, general provisions were inserted in the Constitution which are intended to bring about the needed social and economic equilibrium between component elements of society through the application of what may be termed as the justitia communis advocated by Grotius and Leibnitz many years ago to be secured through the counter-balancing of economic and social forces and employers or landlords, and employees or tenants, respectively; and by prescribing penalties for the violation of the orders and later, Commonwealth Act No. 213, entitled `An Act to define and regulate legitimate labor organizations."²⁸cräläwvirtualibräry

This ingrained social philosophy favoring employees has now been weakened by the new ruling of the majority. For while this Court has always considered lack of pre-dismissal notice as unjust to employees, the new ruling of the majority now declares it is unjust to employers as if employers are the ones exploited by employees. In truth, there is nothing unjust to employers by requiring them to give notice to their employees before denying them their jobs. There is nothing unjust to the duty to give notice for the duty is a reasonable duty. If the duty is reasonable, then it is also reasonable to demand its compliance before the right to dismiss on the part of an employer can be exercised. If it is reasonable for an employer to comply with the duty, then it can never be unjust if non-compliance therewith is penalized by denying said employer his right to dismiss. In fine, if the employers right to dismiss an employee is forfeited for his failure to comply with this simple, reasonable duty to pre-notify his employee, he has nothing to blame but himself. If the employer is estopped from litigating the issue of whether or not he is dismissing his employee for a just or an authorized cause, he brought the consequence on to himself. The new ruling of the majority, however, inexplicably considers this consequence as unjust to the employer and it merely winks at his failure to give notice.

V. A LAST WORD

The new ruling of the majority erodes the sanctity of the most important right of an employee, his constitutional right to security of tenure. This right will never be respected by the employer if we merely honor the right with a price tag. The policy of "dismiss now and pay later" favors monied employers and is a mockery of the right of employees to social justice. There is no way to justify this pro-employer stance when the 1987 Constitution is undeniably more pro-employee than our previous fundamental laws. Section 18 of Article II (State Policies) provides that "the State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare." Section 1, Article XIII (Social Justice and Human Rights) calls for the reduction of economic inequalities. Section 3, Article XIII (Labor) directs the State to accord full protection to labor and to guaranty security of tenure. These are constitutional polestars and not mere works of cosmetology. Our odes to the poor will be meaningless mouthfuls if we cannot protect the employees right to due process against the power of the peso of employers.

To an employee, a job is everything. Its loss involves terrible repercussions - - - stoppage of the schooling of children, ejectment from leased premises, hunger to the family, a life without any safety net. Indeed, to many employees, dismissal is their lethal injection. Mere payment of money by way of separation pay and backwages will not secure food on the mouths of employees who do not even have the right to choose what they will chew.

I vote to grant the petition.

¹hwartz, Administrative Law, 1991 ed., p. 224 citing Painter v. Liverpool Gas Co., 3 Ad. & E I. 433, 449, 11 Eng. Rep. 478 (K. B. 1836)

² Kingsize Manufacturing Corp. v. NLRC, 238 SCRA 349 (1994)

³ Ibid.

⁴ 170 SCRA 69.

⁵ 248 SCRA 532, 545 (1995)

⁶ Ibid., p. 546.

⁷ Op cit., p. 76.

⁸ Op cit., pp. 74-75.

⁹ Op cit., p. 76.

¹⁰ TSN, August 4, 1992, pp. 30, 37-38, 42-49.

¹¹ A fifth authorized cause is "disease of the employee" provided in Article 284 of the Code.

¹² Sebuguero, supra.

¹³ International Hardware, Inc. v. National Labor Relations Commission, 176 SCRA 256, 259 (1989)

¹⁴ Sebuguero v. NLRC, supra.

¹⁵ Wiltshire File Co. v. NLRC, 193 SCRA 665, 676 (1991)

¹⁶ Balbalec v. NLRC, 251 SCRA 398, 406 (1995)

¹⁷ 110 Phil 113 (1960)

¹⁸hwartz, op cit., pp. 273-274.

¹⁹ Supra.

²⁰ See also JGB and Associates, Inc. v. NLRC, 254 SCRA 457 (1996); Philippine Savings Bank v. NLRC, 261 SCRA 409 (1996); Pasudeco Inc. v. NLRC, 272 SCRA 737 (1997); P.I. Manpower, Inc. v. NLRC, 267 SCRA 451 (1997); Canura v. NLRC, 279 SCRA 45 (1997); International Pharmaceuticals, Inc. v. NLRC, 287 SCRA 213 (1998); Mabuhay Development Industries v. NLRC, 288 SCRA 1 (1998), all ponencias of Mr. Justice Mendoza.

²¹ Art. 283. Termination by employer. An employer may terminate an employment without a definite period for any of the following just causes:

(a)......The closing or cessation of operation of the establishment or enterprise, or where the employer has to reduce his work force by more then one-half (1/2) due to serious business reverses, unless the closing is for the purpose of circumventing the provisions of this chapter;

(b)......Serious misconduct or willful disobedience by the employee of the orders of his employer or representative in connection with his work;

(c)......Gross and habitual neglect by the employee of his duties;

(d)......Fraud or willful breach by the employee of the trust reposed in him by his employer or representative;

(e)......Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or representative; and chanrobles virtual law library

(f)......Other causes analogous to the foregoing.

²² Art. 284. Reduction of personnel. The termination of employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses, and other similar causes, shall entitle the employee affected thereby to separation pay xxx.

²³ Art. 285. Disease as a ground for termination. An employer may terminate the services of an employee who have been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees xxx.

²⁴ The adjustment of the numbering of the Articles is due to the fact that there are two (2) Article 238.

²⁵ 71 SCRA 470 (1976)

²⁶ 92 Phil. 843 (1953)

²⁷ International Hardware, Inc. v. NLRC, 176 SCRA 256 (1989); Sebuguero v. NLRC, supra.

²⁸ Concurring opinion in Ang Tibay et al. vs. Court of Industrial Relations, et al., 69 Phil. 635 (1940)