SECOND
DIVISION
ABS-CBN
EMPLOYEES UNION and JOSE ENTRADICHO,
Petitioners,
G. R. No. 111211
July 24, 1997
-versus-
NATIONAL
LABOR RELATIONS COMMISSION
and ABS-CBN BROADCASTING CORPORATION,
Respondents.
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 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 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:
WHEREFORE, PREMISES CONSIDERED, judgment
is
hereby
rendered as follows:
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.
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.
The petition must
be dismissed.cralaw:red
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:
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 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.
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:
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.
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:
Sec. 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, and adequate remedy in
the
ordinary course of law, a person aggrieved thereby may file 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.
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:
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 [Emphasis
supplied].
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]
Rules 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. [Emphasis supplied]
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.[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
therefor.[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."
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.cralaw:red
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.cralaw:red
SO ORDERED.cralaw:red
Regalado, Puno
and Mendoza, JJ., concur.
Torres, Jr., J., is on leave.cralaw:red
________________________________
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, 1995.
[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. |