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[ G.R. No. 144281. October 11, 2000]

FAB-ASIA, INC. vs. GERARDO RASCO

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 11 2000.

G.R. No. 144281 (FAB-ASIA, Inc. vs. Gerardo Rasco.)

Petitioner assails the decision of the Court of Appeals reversing the decision of the NLRC which in turn reversed that of the labor arbiter, consequently reinstating the latter decision declaring thusly:

WHEREFORE . . . judgment is hereby rendered finding the dismissal of complainant illegal and ordering the respondents to pay complainant his separation pay at one month for every year of service and backwages for two (2) years.

Private respondent filed an action for illegal dismissal for alleged gross and willful insubordination against petitioner after he was terminated from his employment as a "finisher." The labor arbiter decided in favor of private respondent but upon appeal, the NLRC reversed, set aside said decision, and dismissed the case for lack of merit. Aggrieved, private respondent elevated the case to the Court of Appeals which reinstated the decision of the labor arbiter.

Thus, the instant petition which must necessarily fail.

Initially, the Court notes that the instant petition lacks the required duplicate original or certified true copy of the assailed decision, and the statement of material dates is incomplete, which lapses are sufficient in themselves to cause the outright dismissal of the petition.

But over and above these technical flaws is the fact that the Court finds no reversible error was committed by the Court of Appeals in rendering the assailed decision. The law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected: (1) notice which apprises the employee of the particular acts of omissions on which his dismissal is based; and (2) the subsequent notice which informs the employee of the employer's decision to dismiss him. Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory; in the absence of which any judgment reached by management is void and inexistent (Pepsi Cola Bottling Co. vs. NLRC, 210 SCRA 277 [1992]).

In the case at bar, petitioner was asked to go to petitioner's personnel department and to explain the incident relative to private respondent's alleged insubordination but there was no charge. There was no written notice of any specific charge against him. The only written notice given was the Notice of Termination. Clearly, petitioner failed to comply with Section 2 of Rule XIV, Book V of the Rules and Regulations Implementing the Labor Code which explicitly provides:

Sec. 2 Notice of dismissal. - Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular acts or omission constituting the grounds for his dismissal. In cases of abandonment of work the notice shall be served at the worker's last known address.

Whenever there is failure to observe the twin requirements of notice and hearing which are the essential elements of due process, termination from employment becomes malicious, whimsical, and without just cause (Molato vs. National Labor Relations Commission, 266 SCRA 42 [1997]).

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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