Notes.-While It Is True That in Extrajudicial Foreclosure of

Notes.
—While it is true that in extrajudicial foreclosure of

mortgage, the mortgagee has the right to recover the deficiency from
the debtor, this presupposes that the foreclosure must first be valid.
(Development Bank of the Philippines vs. Licuanan, 516 SCRA 644
[2007])
A party to a contract is allowed to nullify a compromise
agreement on the ground of mistake, which has been defined as a
“misunderstanding of the meaning or implication of something” or
“a wrong action or statement proceeding from a faulty judgment.”
(Domingo Realty, Inc. vs. Court of Appeals, 513 SCRA 40 [2007])
——o0o——
G.R. No. 152048. April 7, 2009.*
FELIX B. PEREZ and AMANTE G. DORIA, petitioners, vs.

PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY and
JOSE LUIS SANTIAGO, respondents.
Labor Law; Termination of Employment; Loss of Trust and

Confidence; Unless duly proved or sufficiently substantiated otherwise,
impartial tribunals should not rely only on the statement of the employer
that it has lost confidence in its employee.—Without undermining the
importance of a shipping order or request, we find respondents’ evidence
insufficient to clearly and convincingly establish the facts from which the
loss of confidence resulted. Other than their bare allegations and the fact that
such documents came into petitioners’ hands at some point, respondents
should have provided evidence of petitioners’ functions, the extent of their
duties, the procedure in the handling and approval of shipping requests and
the fact that no personnel other than petitioners were involved. There was,
therefore, a patent paucity of proof connecting petitioners to the alleged
tampering of shipping documents. The alterations on the
_______________
* EN BANC.
111
VOL. 584, APRIL 7, 2009 111
Perez vs. Philippine Telegraph and Telephone Company
shipping documents could not reasonably be attributed to petitioners

because it was never proven that petitioners alone had control of or access to
these documents. Unless duly proved or sufficiently substantiated otherwise,
impartial tribunals should not rely only on the statement of the employer
that it has lost confidence in its employee.
Same; Same; Same; Willful breach by the employee of the trust reposed
in him by his employer or duly authorized representative is a just cause for
termination; Loss of confidence should not be simulated.—Willful breach by
the employee of the trust reposed in him by his employer or duly authorized
representative is a just cause for termination. However, in General Bank and
Trust Co. v. CA, 135 SCRA 569 (1985), we said: [L]oss of confidence
should not be simulated. It should not be used as a subterfuge for causes
which are improper, illegal or unjustified. Loss of confidence may not be
arbitrarily asserted in the face of overwhelming evidence to the contrary. It
must be genuine, not a mere afterthought to justify an earlier action taken in
bad faith.
Same; Same; Same; Two Notice Requirement for Terminating
Employees.—Respondents’ illegal act of dismissing petitioners was
aggravated by their failure to observe due process. To meet the requirements
of due process in the dismissal of an employee, an employer must furnish
the worker with two written notices: (1) a written notice specifying the
grounds for termination and giving to said employee a reasonable
opportunity to explain his side and (2) another written notice indicating that,
upon due consideration of all circumstances, grounds have been established
to justify the employer’s decision to dismiss the employee.
Same; Same; The opportunity to be heard afforded by law to the
employee is qualified by the word “ample” which ordinarily means
considerably more than adequate or sufficient.—Article 277(b) of the Labor
Code provides that, in cases of termination for a just cause, an employee
must be given “ample opportunity to be heard and to defend himself.” Thus,
the opportunity to be heard afforded by law to the employee is qualified by
the word “ample” which ordinarily means “considerably more than adequate
or sufficient.” In this regard, the phrase “ample opportunity to be heard” can
be reasonably interpreted as extensive enough to cover actual hearing or
confer-
112
112 SUPREME COURT REPORTS ANNOTATED
ence. To this extent, Section 2(d), Rule I of the Implementing Rules of Book
VI of the Labor Code is in conformity with Article 277(b).
Same; Same; Section 2(d), Rule I of the Implementing Rules of Book VI
of the Labor Code should not be taken to mean that holding an actual
hearing or conference is a condition sine qua non for compliance with the
due process requirement in termination of employment; The “ample
opportunity to be heard” standard is neither synonymous nor similar to a
formal hearing.—Section 2(d), Rule I of the Implementing Rules of Book
VI of the Labor Code should not be taken to mean that holding an actual
hearing or conference is a condition sine qua non for compliance with the
due process requirement in termination of employment. The test for the fair
procedure guaranteed under Article 277(b) cannot be whether there has been
a formal pretermination confrontation between the employer and the
employee. The “ample opportunity to be heard” standard is neither
synonymous nor similar to a formal hearing. To confine the employee’s
right to be heard to a solitary form narrows down that right. It deprives him
of other equally effective forms of adducing evidence in his defense.
Certainly, such an exclusivist and absolutist interpretation is overly
restrictive. The “very nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable situation.”
Same; Same; While a formal hearing or conference is ideal, it is not an
absolute, mandatory or exclusive avenue of due process.—Section 2(d),
Rule I of the Implementing Rules of Book VI of the Labor Code itself
provides that the so-called standards of due process outlined therein shall be
observed “substantially,” not strictly. This is a recognition that while a
formal hearing or conference is ideal, it is not an absolute, mandatory or
exclusive avenue of due process.
Same; Due Process; “To be heard” does not mean verbal
argumentation alone inasmuch as one may be heard just as effectively
through written explanations, submissions or pleadings.—A hearing means
that a party should be given a chance to adduce his evidence to support his
side of the case and that the evidence should be taken into account in the
adjudication of the controversy. “To be heard” does not mean verbal
argumentation alone inasmuch as one may be heard just as effectively
through written explanations, submissions or pleadings. Therefore, while
the phrase “ample opportunity to be
113
VOL. 584, APRIL 7, 2009 113
heard” may in fact include an actual hearing, it is not limited to a formal

hearing only. In other words, the existence of an actual, formal “trial-type”
hearing, although preferred, is not absolutely necessary to satisfy the
employee’s right to be heard.
Same; Same; Guiding Principles in Connection with the Hearing
Requirement in Dismissal Cases.—The following are the guiding principles
in connection with the hearing requirement in dismissal cases: (a) “ample
opportunity to be heard” means any meaningful opportunity (verbal or
written) given to the employee to answer the charges against him and submit
evidence in support of his defense, whether in a hearing, conference or some
other fair, just and reasonable way. (b) a formal hearing or conference
becomes mandatory only when requested by the employee in writing or
substantial evidentiary disputes exist or a company rule or practice requires
it, or when similar circumstances justify it. (c) the “ample opportunity to be
heard” standard in the Labor Code prevails over the “hearing or conference”
requirement in the implementing rules and regulations.
BRION, J., Concurring Opinion:
Labor Law; Termination of Employment; Employer must furnish the
worker to be dismissed with two written notices before termination of
employment can be effected.—Jurisprudence has expounded on the
guarantee and its implementation by reiterating that the employer must
furnish the worker to be dismissed with two written notices before
termination of employment can be effected: a first written notice that
informs the worker of the particular acts or omissions for which his or her
dismissal is sought, and a second written notice which informs the worker
of the employer’s decision to dismiss him. Between these two notices, the
worker must be afforded ample opportunity to be heard in the manner the
ponencia has very ably discussed.
Same; Same; A formal or trial type hearing is not at all times and in all
circumstances essential to due process, the requirements of which are
satisfied where the parties are afforded fair and reasonable opportunity to
explain their side in the controversy.—The “ample opportunity” required to
be provided by the employer is similar in character to the process required
in administrative proceedings where, as explained above, an actual hearing
is not an absolute
114
necessity. To be sure, it cannot refer to, or be compared with, the

requirements of a judicial proceeding whose strict demands necessarily
require a formal hearing. “Judicial declarations are rich to the effect that the
essence of due process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one’s side. A formal
or trial type hearing is not at all times and in all circumstances essential to
due process, the requirements of which are satisfied where the parties are
afforded fair and reasonable opportunity to explain their side in the
controversy.”
VELASCO, J., Separate Concurring and Dissenting Opinion:
Labor Law; Termination of Employment; Opportunity to be heard does
not exclude an actual or formal hearing since such requirement would grant
more than sufficient chance for an employee to be heard and adduce
evidence.—The aforequoted provision states that employees are to be given
“ample” opportunity to be heard and defend themselves. However, the word
“ample” is vague and not defined in the said provision. Since the meaning of
this word is unclear, then it should be given a liberal construction to favor
labor. “Ample” means “considerably more than adequate or sufficient.”
Ample opportunity can be construed to be broad enough to encompass an
actual hearing or conference. To be sure, opportunity to be heard does not
exclude an actual or formal hearing since such requirement would grant
more than sufficient chance for an employee to be heard and adduce
evidence. In this sense, I believe there is no discrepancy between Art. 277
and the Implementing Rule in question.
Same; Same; The fact that Art. 277 (b) does not expressly mention
actual hearing in Art. 277 (b) does not bar the Secretary of Labor from
issuing a rule (Sec. 2[d][ii], Rule I, Implementing Rules of Book VI of the
Labor Code) implementing the provision that what really is meant is an
actual hearing or conference.—The ponencia seems to underscore the
absence of any mention of an “actual hearing” in Art. 277(b). It is conceded
that there is no explicit mention of an actual hearing or conference in said
legal provision. As earlier discussed, the requisite hearing is captured in the
phrase “ample opportunity to be heard and to defend himself with the
assistance of his representative if he so desires.” Even if the phrase “actual
hearing” is not specified in Art. 277(b), the same thing is true with respect to
the second
115
VOL. 584, APRIL 7, 2009 115
written notice informing the employee of the employer’s decision which is

likewise unclear in said provision. Thus, the fact that Art. 277(b) does not
expressly mention actual hearing in Art. 277(b) does not bar the Secretary of
Labor from issuing a rule (Sec. 2[d][ii], Rule I, Implementing Rules of Book
VI of the Labor Code) implementing the provision that what really is meant
is an actual hearing or conference. It should be noted that the Secretary of
Labor also issued a rule on the need for a second written notice on the
decision rendered in the illegal dismissal proceedings despite the silence of
Art. 277(b) on the need for a written notice of the employer’s decision.
Same; Same; The right to a hearing is one of the cardinal primary
rights which must be respected even in cases of administrative character.—
The hearing or conference requirement in termination cases finds support in
the long standing jurisprudence in Ang Tibay v. Court of Industrial
Relations, wherein we declared that the right to a hearing is one of the
cardinal primary rights which must be respected even in cases of
administrative character. We held: There are cardinal rights which must be
respected even in proceedings of this character. The first of these rights is
the right to a hearing, which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof. Not
only must the party be given an opportunity to present his case and to
adduce evidence tending to establish the rights which he asserts but the
tribunal must consider the evidence presented.
PETITION for review on certiorari of a decision of the Court of

Appeals.
The facts are stated in the opinion of the Court.
Domingo G. Foronda for petitioners.
Melchor, Ella, Ancheta Law Firm for respondents.
CORONA, J.:
Petitioners Felix B. Perez and Amante G. Doria were employed
by respondent Philippine Telegraph and Telephone Company
(PT&T) as shipping clerk and supervisor, respectively, in PT&T’s
Shipping Section, Materials Management Group.
116

Acting on an alleged unsigned letter regarding anomalous

transactions at the Shipping Section, respondents formed a special
audit team to investigate the matter. It was discovered that the
Shipping Section jacked up the value of the freight costs for goods
shipped and that the duplicates of the shipping documents allegedly
showed traces of tampering, alteration and superimposition.
On September 3, 1993, petitioners were placed on preventive
suspension for 30 days for their alleged involvement in the
anomaly.1 Their suspension was extended for 15 days twice: first on
October 3, 19932 and second on October 18, 1993.3
On October 29, 1993, a memorandum with the following tenor
was issued by respondents:
“In line with the recommendation of the AVP-Audit as presented in his

report of October 15, 1993 (copy attached) and the subsequent filing of
criminal charges against the parties mentioned therein, [Mr. Felix Perez and
Mr. Amante Doria are] hereby dismissed from the service for having
falsified company documents.”4 (emphasis supplied)
On November 9, 1993, petitioners filed a complaint for illegal

suspension and illegal dismissal.5 They alleged that they were
dismissed on November 8, 1993, the date they received the above-
mentioned memorandum.
The labor arbiter found that the 30-day extension of petitioners’
suspension and their subsequent dismissal were both illegal. He
ordered respondents to pay petitioners their salaries during their 30-
day illegal suspension, as well as to reinstate them with backwages
and 13th month pay.
_______________
1 Records, pp. 70-71.

2 Id., pp. 72-73.
3 Id., pp. 74-75.
4 Id., p. 76.
5 Id., p. 39.
117
VOL. 584, APRIL 7, 2009 117

The National Labor Relations Commission (NLRC) reversed the

decision of the labor arbiter. It ruled that petitioners were dismissed
for just cause, that they were accorded due process and that they
were illegally suspended for only 15 days (without stating the reason
for the reduction of the period of petitioners’ illegal suspension).6
Petitioners appealed to the Court of Appeals (CA). In its January
29, 2002 decision,7 the CA affirmed the NLRC decision insofar as
petitioners’ illegal suspension for 15 days and dismissal for just
cause were concerned. However, it found that petitioners were
dismissed without due process.
Petitioners now seek a reversal of the CA decision. They contend
that there was no just cause for their dismissal, that they were not
accorded due process and that they were illegally suspended for 30
days.
We rule in favor of petitioners.
Respondents Failed to Prove Just
Cause and to Observe Due Process
The CA, in upholding the NLRC’s decision, reasoned that there
was sufficient basis for respondents to lose their confidence in
petitioners8 for allegedly tampering with the shipping documents.
Respondents emphasized the importance of a shipping order or
request, as it was the basis of their liability to a cargo forwarder.9
_______________
6 Decision penned by Commissioner Ireneo B. Bernardo, and concurred in by

Presiding Commissioner Lourdes C. Javier and Commissioner Joaquin A. Tanodra.
7 Decision of the Court of Appeals, penned by Associate Justice (now retired
Associate Justice of the Supreme Court) Ruben T. Reyes, and concurred in by
Associate Justices Renato C. Dacudao and Mariano C. del Castillo of the Ninth
Division of the Court of Appeals.
8 Rollo, p. 34.
9 Records, p. 107.
118
We disagree.
Without undermining the importance of a shipping order or
request, we find respondents’ evidence insufficient to clearly and
convincingly establish the facts from which the loss of confidence
resulted.10 Other than their bare allegations and the fact that such
documents came into petitioners’ hands at some point, respondents
should have provided evidence of petitioners’ functions, the extent
of their duties, the procedure in the handling and approval of
shipping requests and the fact that no personnel other than
petitioners were involved. There was, therefore, a patent paucity of
proof connecting petitioners to the alleged tampering of shipping
documents.
The alterations on the shipping documents could not reasonably
be attributed to petitioners because it was never proven that
petitioners alone had control of or access to these documents. Unless
duly proved or sufficiently substantiated otherwise, impartial
tribunals should not rely only on the statement of the employer that
it has lost confidence in its employee.11
Willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative is a just cause for
termination.12 However, in General Bank and Trust Co. v. CA,13 we
said:
“[L]oss of confidence should not be simulated. It should not be used as a

subterfuge for causes which are improper, illegal or unjustified. Loss of
confidence may not be arbitrarily asserted in the face of
_______________
10 Commercial Motors Corporation v. Commissioners, et al., G.R. No. 14762, 10 December

1990, 192 SCRA 191, 197.
11 Santos v. National Labor Relations Commission, G.R. No. L-76991, October 28, 1988,
166 SCRA 759, 765, De Leon v. National Labor Relations Commission, G.R. No. 52056,
October 30, 1980, 100 SCRA 691, 700.
12 LABOR CODE, BOOK VI, Title 1, Art. 282 (c).
13 G.R. No. L-42724, 9 April 1985, 135 SCRA 569, 578.
119
VOL. 584, APRIL 7, 2009 119

overwhelming evidence to the contrary. It must be genuine, not a mere

afterthought to justify an earlier action taken in bad faith.”
The burden of proof rests on the employer to establish that the

dismissal is for cause in view of the security of tenure that
employees enjoy under the Constitution and the Labor Code. The
employer’s evidence must clearly and convincingly show the facts
on which the loss of confidence in the employee may be fairly made
to rest.14 It must be adequately proven by substantial evidence.15
Respondents failed to discharge this burden.
Respondents’ illegal act of dismissing petitioners was aggravated
by their failure to observe due process. To meet the requirements of
due process in the dismissal of an employee, an employer must
furnish the worker with two written notices: (1) a written notice
specifying the grounds for termination and giving to said employee a
reasonable opportunity to explain his side and (2) another written
notice indicating that, upon due consideration of all circumstances,
grounds have been established to justify the employer’s decision to
dismiss the employee.16
Petitioners were neither apprised of the charges against them nor
given a chance to defend themselves. They were simply and
arbitrarily separated from work and served notices of termination in
total disregard of their rights to due process and security of tenure.
The labor arbiter and the CA correctly found that respondents failed
to comply with the two-notice requirement for terminating
employees.
_______________
14 Imperial Textile Mills, Inc. v. National Labor Relations Commission, G.R. No.
101527, 19 January 1993, 217 SCRA 237, 244-245.
15 Starlite Plastic Industrial Corp. v. National Labor Relations Commission, G.R.
No. 78491, 16 March 1989, 171 SCRA 315, 324.
16 Omnibus Rules Implementing the Labor Code, Book VI, Rule 1, Sec. 2 (a) and
(c).
120

Petitioners likewise contended that due process was not observed
in the absence of a hearing in which they could have explained their
side and refuted the evidence against them.
There is no need for a hearing or conference. We note a marked
difference in the standards of due process to be followed as
prescribed in the Labor Code and its implementing rules. The Labor
Code, on one hand, provides that an employer must provide the
employee ample opportunity to be heard and to defend himself with
the assistance of his representative if he so desires:
“ART. 277. Miscellaneous provisions.—x x x
(b) Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for a
just and 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 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.” (emphasis supplied)
The omnibus rules implementing the Labor Code, on the other

hand, require a hearing and conference during which the employee
concerned is given the opportunity to respond to
121
VOL. 584, APRIL 7, 2009 121

the charge, present his evidence or rebut the evidence presented

against him:17
“Section 2. Security of Tenure.—x x x
(d) In all cases of termination of employment, the following
standards of due process shall be substantially observed:
For termination of employment based on just causes as defined in
Article 282 of the Labor Code:
(i) A written notice served on the employee specifying the
ground or grounds for termination, and giving said employee
reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee
concerned, with the assistance of counsel if he so desires, is given
opportunity to respond to the charge, present his evidence or
rebut the evidence presented against him.
(iii) A written notice of termination served on the employee,
indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination.” (emphasis
supplied)
Which one should be followed? Is a hearing (or conference)

mandatory in cases involving the dismissal of an employee? Can the
apparent conflict between the law and its IRR be reconciled?
At the outset, we reaffirm the time-honored doctrine that, in case of
conflict, the law prevails over the administrative regulations
implementing it.18 The authority to promulgate implementing rules
proceeds from the law itself. To be valid, a rule or regulation must
conform to and be consistent with
_______________
17 Section 2(d), Rule I, Implementing Rules of Book VI of the LABOR CODE.

18 See Conte v. Commission on Audit, 332 Phil. 20; 264 SCRA 19 (1996), citing
Kilusang Mayo Uno Labor Center v. Garcia, Jr., G.R. No. 115381, 23 December
1994, 239 SCRA 386.
122

the provisions of the enabling statute.19 As such, it cannot amend the

law either by abridging or expanding its scope.20
Article 277(b) of the Labor Code provides that, in cases of
termination for a just cause, an employee must be given “ample
opportunity to be heard and to defend himself.” Thus, the
opportunity to be heard afforded by law to the employee is qualified
by the word “ample” which ordinarily means “considerably more
than adequate or sufficient.”21 In this regard, the phrase “ample
opportunity to be heard” can be reasonably interpreted as extensive
enough to cover actual hearing or conference. To this extent, Section
2(d), Rule I of the Implementing Rules of Book VI of the Labor
Code is in conformity with Article 277(b).
Nonetheless, Section 2(d), Rule I of the Implementing Rules of
Book VI of the Labor Code should not be taken to mean that holding
an actual hearing or conference is a condition sine qua non for
compliance with the due process requirement in termination of
employment. The test for the fair procedure guaranteed under
Article 277(b) cannot be whether there has been a formal
pretermination confrontation between the employer and the
employee. The “ample opportunity to be heard” standard is neither
synonymous nor similar to a formal hearing. To confine the
employee’s right to be heard to a solitary form narrows down that
right. It deprives him of other equally effective forms of adducing
evidence in his defense. Certainly, such an exclusivist and absolutist
interpretation is overly restrictive. The “very nature of due
_______________
19 Id., citing Lina Jr. v. Cariño, G.R. No. 100127, 23 April 1993, 221 SCRA 515.
20 Implementing rules and regulations may not enlarge, alter or restrict the
provisions of the law they seek to implement; they cannot engraft additional
requirements not contemplated by the legislature (Pilipinas Kao, Inc. v. Court of
Appeals, 423 Phil. 834; 372 SCRA 548 [2001]).
21 Webster’s Third New Collegiate International Dictionary Of The English
Language Unabridged, p. 74, 1993 edition.
123
VOL. 584, APRIL 7, 2009 123

process negates any concept of inflexible procedures universally

applicable to every imaginable situation.”22
The standard for the hearing requirement, ample opportunity, is
couched in general language revealing the legislative intent to give
some degree of flexibility or adaptability to meet the peculiarities of
a given situation. To confine it to a single rigid proceeding such as a
formal hearing will defeat its spirit.
Significantly, Section 2(d), Rule I of the Implementing Rules of
Book VI of the Labor Code itself provides that the so-called
standards of due process outlined therein shall be observed
“substantially,” not strictly. This is a recognition that while a formal
hearing or conference is ideal, it is not an absolute, mandatory or
exclusive avenue of due process.
An employee’s right to be heard in termination cases under
Article 277(b) as implemented by Section 2(d), Rule I of the
Implementing Rules of Book VI of the Labor Code should be
interpreted in broad strokes. It is satisfied not only by a formal face
to face confrontation but by any meaningful opportunity to
controvert the charges against him and to submit evidence in support
thereof.
A hearing means that a party should be given a chance to adduce
his evidence to support his side of the case and that the evidence
should be taken into account in the adjudication of the controversy.23
“To be heard” does not mean verbal ar-
_______________
22 Cafeteria Workers v. McElroy, 367 U.S. 886 (1961).

23 Gonzales v. Commission on Elections, G.R. No. 52789, 19 December 1980, 101
SCRA 752.
In the landmark case on administrative due process, Ang Tibay v. Court of
Industrial Relations (69 Phil. 635 [1940]), this Court laid down seven cardinal
primary rights:
(1) The first of these rights is the right to a hearing, which includes the
right of the party interested or affected to present his own case and
submit evidence in support thereof. x x x (2) Not only must the party be
given an opportunity to present his case and to adduce evidence tending
124

gumentation alone inasmuch as one may be heard just as effectively

through written explanations, submissions or pleadings.24 Therefore,
while the phrase “ample opportunity to be heard” may in fact
include an actual hearing, it is not limited to a formal hearing only.
In other words, the existence of an actual, formal “trial-type”
hearing, although preferred, is not absolutely necessary to satisfy the
employee’s right to be heard.
This Court has consistently ruled that the due process
requirement in cases of termination of employment does not require
an actual or formal hearing. Thus, we categorically declared in
Skipper’s United Pacific, Inc. v. Maguad:25
The Labor Code does not, of course, require a formal or trial type
proceeding before an erring employee may be dismissed. (emphasis
supplied)
In Autobus Workers’ Union v. NLRC,26 we ruled:
“The twin requirements of notice and hearing constitute the essential

elements of due process. Due process of law simply means giving
opportunity to be heard before judgment is rendered. In fact, there is no
violation of due process even if no hearing was conducted, where the
party was given a chance to explain his side of the controversy. What is
frowned upon is the denial of the opportunity to be heard.
x x x x x x x x x
A formal trial-type hearing is not even essential to due process. It is
enough that the parties are given a fair and reasonable opportunity to
explain their respective sides of the controversy and to present
supporting evidence on which a fair decision can be based. This type of
hearing is not even
_______________
to establish the rights which he asserts but the tribunal must consider the evidence
presented. x x x
24 Rizal Commercial Banking Corporation v. Commissioner of Internal Revenue, G.R. No.

168498, 16 June 2006, 491 SCRA 213.
25 G.R. No. 166363, 15 August 2006, 498 SCRA 639.
26 353 Phil. 419; 291 SCRA 219 (1998).
125
VOL. 584, APRIL 7, 2009 125

mandatory in cases of complaints lodged before the Labor Arbiter.”

(emphasis supplied)
In Solid Development Corporation Workers Association v. Solid

Development Corporation,27 we had the occasion to state:
“[W]ell-settled is the dictum that the twin requirements of notice and

hearing constitute the essential elements of due process in the dismissal of
employees. It is a cardinal rule in our jurisdiction that the employer must
furnish the employee with two written notices before the termination of
employment can be effected: (1) the first apprises the employee of the
particular acts or omissions for which his dismissal is sought; and (2) the
second informs the employee of the employer’s decision to dismiss him.
The requirement of a hearing, on the other hand, is complied with as
long as there was an opportunity to be heard, and not necessarily that
an actual hearing was conducted.
In separate infraction reports, petitioners were both apprised of the
particular acts or omissions constituting the charges against them. They
were also required to submit their written explanation within 12 hours from
receipt of the reports. Yet, neither of them complied. Had they found the 12-
hour period too short, they should have requested for an extension of time.
Further, notices of termination were also sent to them informing them of the
basis of their dismissal. In fine, petitioners were given due process before
they were dismissed. Even if no hearing was conducted, the requirement
of due process had been met since they were accorded a chance to explain
their side of the controversy.” (emphasis supplied)
Our holding in National Semiconductor HK Distribution, Ltd. v.

NLRC28 is of similar import:
“That the investigations conducted by petitioner may not be considered

formal or recorded hearings or investigations is immaterial. A formal or
trial type hearing is not at all times and in all instances essential to due
process, the re-
_______________
27 G.R. No. 165995, 14 August 2007, 530 SCRA 132.

28 353 Phil. 551; 291 SCRA 348 (1998).
126

quirements of which are satisfied where the parties are afforded fair and
reasonable opportunity to explain their side of the controversy. It is deemed
sufficient for the employer to follow the natural sequence of notice, hearing
and judgment.”
The above rulings are a clear recognition that the employer may
provide an employee with ample opportunity to be heard and defend
himself with the assistance of a representative or counsel in ways
other than a formal hearing. The employee can be fully afforded a
chance to respond to the charges against him, adduce his evidence or
rebut the evidence against him through a wide array of methods,
verbal or written.
After receiving the first notice apprising him of the charges
against him, the employee may submit a written explanation (which
may be in the form of a letter, memorandum, affidavit or position
paper) and offer evidence in support thereof, like relevant company
records (such as his 201 file and daily time records) and the sworn
statements of his witnesses. For this purpose, he may prepare his
explanation personally or with the assistance of a representative or
counsel. He may also ask the employer to provide him copy of
records material to his defense. His written explanation may also
include a request that a formal hearing or conference be held. In
such a case, the conduct of a formal hearing or conference becomes
mandatory, just as it is where there exist substantial evidentiary
disputes29 or where company rules or practice requires an actual
hearing as part of employment pretermination procedure. To this
extent, we refine the decisions we have rendered so far on this point
of law.
This interpretation of Section 2(d), Rule I of the Implementing
Rules of Book VI of the Labor Code reasonably im-
_______________
29 See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)
(Brennan J., concurring in part and dissenting in part), citing Arnett v. Kennedy, 416
U.S. 134 (1974) (Marshall J., dissenting).
127
VOL. 584, APRIL 7, 2009 127

plements the “ample opportunity to be heard” standard under Article

277(b) of the Labor Code without unduly restricting the language of
the law or excessively burdening the employer. This not only
respects the power vested in the Secretary of Labor and Employment
to promulgate rules and regulations that will lay down the guidelines
for the implementation of Article 277(b). More importantly, this is
faithful to the mandate of Article 4 of the Labor Code that “[a]ll
doubts in the implementation and interpretation of the provisions of
[the Labor Code], including its implementing rules and regulations
shall be resolved in favor of labor.”
In sum, the following are the guiding principles in connection
with the hearing requirement in dismissal cases:
(a) “ample opportunity to be heard” means any
meaningful opportunity (verbal or written) given to the
employee to answer the charges against him and submit
evidence in support of his defense, whether in a hearing,
conference or some other fair, just and reasonable way.
(b) a formal hearing or conference becomes mandatory
only when requested by the employee in writing or substantial
evidentiary disputes exist or a company rule or practice
requires it, or when similar circumstances justify it.
(c) the “ample opportunity to be heard” standard in the
Labor Code prevails over the “hearing or conference”
requirement in the implementing rules and regulations.
Petitioners Were Illegally
Suspended for 30 Days
An employee may be validly suspended by the employer for just
cause provided by law. Such suspension shall only be for
128

a period of 30 days, after which the employee shall either be

reinstated or paid his wages during the extended period.30
In this case, petitioners contended that they were not paid during
the two 15-day extensions, or a total of 30 days, of their preventive
suspension. Respondents failed to adduce evidence to the contrary.
Thus, we uphold the ruling of the labor arbiter on this point.
Where the dismissal was without just or authorized cause and
there was no due process, Article 279 of the Labor Code, as
amended, mandates that the employee is entitled to reinstatement
without loss of seniority rights and other privileges and full
backwages, inclusive of allowances, and other benefits or their
monetary equivalent computed from the time the compensation was
not paid up to the time of actual reinstatement.31 In this case,
however, reinstatement is no longer possible because of the length of
time that has passed from the date of the incident to final
resolution.32 Fourteen years have transpired from the time
petitioners were wrongfully dismissed. To order reinstatement at this
juncture will no longer serve any prudent or practical purpose.33
WHEREFORE, the petition is hereby GRANTED. The decision
of the Court of Appeals dated January 29, 2002 in CA-G.R. SP No.
50536 finding that petitioners Felix B. Perez and Amante G. Doria
were not illegally dismissed but were not accorded due process and
were illegally suspended for 15 days, is SET ASIDE. The decision
of the labor arbiter dated December 27, 1995 in NLRC NCR CN.
11-06930-93 is hereby
_______________
30 Omnibus Rules Implementing the Labor Code, Book V, Rule XXIII, Sec. 9, as
amended by Department of Labor and Employment Order No. 9 (1997).
31 Agabon v. National Labor Relations Commission, G.R. No. 158693, 17
November 2004, 442 SCRA 573, 610.
32 Panday v. National Labor Relations Commission, G.R. No. 67664, 20 May
1992, 209 SCRA 122, 126-127.
33 Sealand Service, Inc. v. National Labor Relations Commission, G.R. No.
90500, 5 October 1990, 190 SCRA 347, 355.
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VOL. 584, APRIL 7, 2009 129

AFFIRMED with the MODIFICATION that petitioners should be

paid their separation pay in lieu of reinstatement.
SO ORDERED.
Puno (C.J.), Quisumbing, Ynares-Santiago, Carpio,

Carpio-Morales, Tinga, Chico-Nazario, Nachura, Leonardo-
De Castro and Peralta, JJ., concur.
Austria-Martinez, J., I certify that J. Martinez voted for the
ponencia of J. Corona.
Velasco, Jr., J., Please see Separate Concurring and Dissenting
Opinion.
Brion, J., With Concurring Opinion.
CONCURRING OPINION
BRION, J.:
I fully concur with the ponencia of my esteemed colleague,
Associate Justice Renato C. Corona. I add these views on the
specific issue of whether actual hearing is a mandatory requirement
in a termination of employment situation.
The petitioners’ position that a formal hearing should be an
absolute requirement whose absence signifies the non-observance of
procedural due process is an unduly strict view and is not at all what
procedural due process requires. This is not the intent behind the
Labor Code whose pertinent provision reads:
“ART. 277.
x x x
(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 workers whose
employment is sought to be terminated a written notice containing a
statement of the causes for ter-
130

mination and shall afford the latter ample opportunity to be heard and
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.
The Secretary of Labor and Employment may suspend the effects

of the termination pending resolution of the dispute in the event of
prima facie finding by the appropriate official of the Department of
Labor and Employment before whom such dispute is pending that
the termination may cause a serious labor dispute or is in
implementation of a mass layoff. (as amended by Republic Act No.
6715)”
Historical Roots
At its most basic, procedural due process is about fairness in the
mode of procedure to be followed. It is not a novel concept, but one
that traces its roots in the common law principle of natural justice.
Natural justice connotes the requirement that administrative
tribunals, when reaching a decision, must do so with procedural
fairness. If they err, the superior courts will step in to quash the
decision by certiorari or prevent the error by a writ of prohibition.1
The requirement was initially applied in a purely judicial context,
but was subsequently extended to executive regulatory fact-finding,
as the administrative powers of the English justices of the peace
were transferred to administrative bodies that were required to adopt
some of the procedures reminiscent of those used in a courtroom.
Natural justice was comprised of two main sub-rules: audi alteram
_______________
1 See: Jones, D.P. and De Villars A., Principles of Administrative Law (1985 ed.),
pp. 148-149.
131
VOL. 584, APRIL 7, 2009 131

partem 2—that a person must know the case against him and be
given an opportunity to answer it; and nemo judex in sua cause debe
esse3—the rule against bias. Still much later, the natural justice
principle gave rise to the duty to be fair to cover governmental
decisions which cannot be characterized as judicial or quasi-judicial
in nature.4
While the audi alteram partem rule provided for the right to be
notified of the case against him, the right to bring evidence, and to
make argument—whether in the traditional judicial or the
administrative setting—common law maintained a distinction
between the two settings. “An administrative tribunal had a duty to
act in good faith and to listen fairly to both sides, but not to treat the
question as if it were a trial. There would be no need to examine
under oath, nor even to examine witnesses at all. Any other
procedure could be utilized which would obtain the information
required, as long as the parties had an opportunity to know and to
contradict anything which might be prejudicial to their case.”5
In the U.S., the due process clause of the U.S.
Constitution6provides the guarantee for procedural due process, and
has used a general balancing formula to identify the procedural
guarantees appropriate to a particular context.7 In Mathews v.
Eldridge,8 Justice Powell articulated this approach when he said:
“In recent years this Court increasingly has had occasion to consider the
extent to which due process requires an evidentiary hearing prior to the
deprivation of some type of property interest
_______________
2 Literally, “let the other side be heard.”

3 “No one can be the judge in his own cause.”
4 Supra note 1, pp. 157-160, citing Ridge v. Baldwin, [1963] 2 All E.R. 66 (H.L.)
5 Supra note 1, p. 200.
6 United States Constitution, 14th Amendment.
7 See: Gunther, Constitutional Law, (11th ed.), pp. 583-585.
8 425 U.S. 319 (1976).
132

even if such hearing is provided thereafter. In only one case, Goldberg v.

Kelly, has the Court ruled that a hearing closely approximating a judicial
trial is necessary. In other cases requiring some type of pretermination
hearing as a matter of constitutional right, the Court has spoken sparingly
about the requisite procedures. [Our] decisions underscore the truism that
“[d]ue process, unlike some legal rules, is not a technical conception with a
fixed content, unrelated to time, place and circumstances. [Due process] is
flexible and calls for such procedural protections as the particular situation
demands.” Accordingly, the resolution of the issue whether the
administrative procedures provided here are constitutionally sufficient
requires analysis of the governmental and private interests that are affected.
More precisely, our prior decisions indicate that identification of the specific
dictates of due process generally requires consideration of three distinct
factors: first, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.”
Thus, the U.S. approach is to calibrate the procedural processes to be

observed in administrative cases based on specifically defined
parameters.
Significantly in the U.S., the same common law root that gave
rise to the concept of natural justice and the duty to be fair, branched
out into the doctrine of fair procedure applicable to specific private
sector actors due to their overwhelming economic power within
certain fields (e.g., professional associations, unions, hospitals, and
insurance companies). The doctrine requires notice and hearing,9 but
to an extent slightly less than procedural due process; thus, when an
association has clearly given a person the benefit of far more
procedural protections than he would have been entitled to from a
government entity, he has received the benefit of fair procedure
_______________

9 See: Potvin v. Metropolitan Life Insurance Co., 22 Cal. 4th 1060 (2000).
133
VOL. 584, APRIL 7, 2009 133

and has no cause of action for the mildly adverse action that
resulted.10
Philippine Due Process Requirement
Article III, Section 1 of the Philippine Constitution contains the
constitutional guarantee against denial of due process,11 and is a
direct transplant from an American root—the Bill of Rights of the
American Constitution.12 As in the U.S., our jurisprudence has
distinguished between the constitutional guarantee of due process
that applies to state action, and the statutory due process guarantee
under the Labor Code that applies to private employers.13 The Labor
Code provision, quoted above, is implemented under the Rules
Implementing the Labor Code which provides that—
(d) In all cases of termination of employment, the following standards of

due process shall be substantially observed:
For termination of employment based on just causes as defined in Article
282 of the Labor Code:
(i) A written notice served on the employee specifying the ground
or grounds for termination, and giving said employee reasonable
opportunity within which to explain his side.
(ii) A hearing or conference during which the employee concerned,
with the assistance of counsel, if he so desires, is given opportunity
to respond to the charge, present his evidence, or rebut the evidence
presented against him.
_______________
10 Dougherty v. Haag, 165 Cal. App. 4th 315 (2008).

11 No person shall be denied the right to life, liberty or property without due process of law,
nor shall any person be denied the equal protection of the laws.
12 Supra note 6.
13 Serrano v. National Labor Relations Commission, G.R. No. 117040, January 27, 2000,
323 SCRA 44; Agabon v. National Labor Relations Commission, G.R. No. 158693, November
17, 2004, 442 SCRA 573.
134


indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination
For termination of employment as defined in Article 283 of the Labor Code,
the requirement 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 of Labor and Employment at least thirty days before
effectivity of the termination, specifying the ground or grounds for
termination.
If the termination is brought about by the completion of a contract or phase
thereof, or by failure of an employee to meet the standards of the employer
in the case of probationary employment, it shall be sufficient that a written
notice is served the employee within a reasonable time from the effective
date of termination.14
Jurisprudence has expounded on the guarantee and its

implementation by reiterating that the employer must furnish the
worker to be dismissed with two written notices before termination
of employment can be effected: a first written notice that informs
the worker of the particular acts or omissions for which his or her
dismissal is sought, and a second written notice which informs the
worker of the employer’s decision to dismiss him.15 Between these
two notices, the worker must be afforded ample opportunity to be
heard in the manner the ponencia has very ably discussed.
The Confusion and Submission
Apparently, confusion has resulted in construing what “ample
opportunity to be heard” requires because the implementing rules of
the Labor Code themselves require
_______________
14 Implementing Rules of Book VI of the Labor Code, Rule 1, Section 2, as

amended by Department Order No. 10, series of 1997.
15 Tiu v. National Labor Relations Commission, G.R. No. 83433, November 12,
1992, 215 SCRA 540; see also: Serrano and Agabon cases, supra note 13.
135
VOL. 584, APRIL 7, 2009 135

that there be an actual hearing despite the clear text of the Labor
Code that only requires ample opportunity to be heard.
I submit that in the absence of a clear legislative intent that what
is intended is an actual hearing, the Court cannot construe the
statutory procedural due process guaranty as an absolute
requirement for an actual hearing in the way that at least two cases,
namely King of Kings of Transport, Inc. v. Mamac16 and R.B.
Michael Press v. Galit17 now require.
a. Historical Reason.
Procedural due process cannot be read completely dissociated
from its roots. While the concept of procedural fairness that it
embodies originated as a requirement in judicial proceedings, the
concept has been extended to procedures that were not strictly
judicial as regulatory factfinding was devolved and delegated to
administrative tribunals. The devolution was driven by need; it was
beyond the capability of the courts to attend to the ever-increasing
demands of regulation as society became increasingly complex. As
discussed above, a trial-type procedure is not an absolute necessity
in administrative due process. In fact, in the U.S., not every
administrative decision-making requires a hearing.18 As the U.S.
Supreme Court stated in the Mathews ruling we quoted above:
“[d]ue process, unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances.
[Due process] is flexible and calls for such procedural protections
as the particular situation demands.”19 [Italics supplied]
_______________
16 G.R. No. 166208, June 29, 2007, 526 SCRA 116.

17 G.R. No. 153510, February 13, 2008, 545 SCRA 23.
18 Supra note 7.
19 Supra note 8.
136

b. Philippine Procedural Due Process Developments.

Our Constitution does not expressly define the principles that
embody due process, as it is a concept intended to counterbalance a
flexible power of state—police power. Early on, jurisprudence has
recognized distinctions between procedural due process in judicial
proceedings and in administrative proceedings.
In a long line of cases starting with Banco Espanol v. Palanca,20 the
requirements of procedural due process in judicial proceedings have
been defined.21 In these proceedings, the quantum of evidence that
the prosecution must meet in criminal cases is proof beyond
reasonable doubt,22 while in civil cases the standard has been
described as “preponderance of evidence.”23 The requirements of
procedural due process
in administrative proceedings have been similarly defined in the
early case of Ang Tibay v. CIR.24 The proof required in
_______________
20 37 Phil. 921 (1918).

21 The requirements of due process in judicial proceedings are as follows: 1) an
impartial court or tribunal clothed with judicial power to hear and determine the
matter before it; 2) jurisdiction lawfully acquired over the person of the defendant and
over the property which is the subject matter of the proceeding; 3) an opportunity to
be heard afforded to the defendant; and 4) judgment rendered upon lawful hearing.
22 People v. Berroya, G.R. No. 122487, December 12, 1997, 283 SCRA 111.
23 Supreme Transliner, Incorporated v. Court of Appeals, G.R. No. 125356,
November 21, 2001, 370 SCRA 41.
24 69 Phil. 635 (1940); the observance of due process in administrative
proceedings requires the following: (1) the right to a hearing, which includes the right
of the party interested to present his own case and submit evidence in support thereof;
(2) the tribunal must consider the evidence presented; (3) the decision must be
supported by evidence; (4) the evidence must be substantial; (5) the decision must be
rendered on the evidence present at the hearing, or at least contained in the record and
disclosed to the parties affected; (6) the administrative body or any of its judges must
act on its or his own
137
VOL. 584, APRIL 7, 2009 137

these proceedings is the lower standard of “substantial evidence.”25

The quantum of evidence required in these proceedings impacts
on their hearing requirements. While both judicial and
administrative proceedings require a hearing and the opportunity to
be heard, they differ with respect to the hearing required before a
decision can be made. In criminal cases where a constitutional
presumption of innocence exists, procedural judicial due process
requires that judgment be rendered upon lawful hearing where
factual issues are tested through direct and cross-examination of
witnesses to arrive at proof beyond reasonable doubt. In civil cases,
evidentiary hearings are likewise a must to establish the required
preponderance of evidence.26 Administrative due process, on the
other hand, requires that the decision be rendered on the evidence
presented at the hearing, or at least contained in the record and
disclosed to the parties concerned.27 Thus, substantial reasons
justify the variance in the hearing requirements for these
proceedings.
_______________
independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate; and (7) the administrative body should, in all
controversial questions, render its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the reasons for the decisions
rendered.
25 Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. See Domasig v. National Labor Relations
Commission, G.R. No. 118101, September 16, 1996, 261 SCRA 779.
26 See People v. Dapitan, G.R. No. 90625, May 23, 1991, 197 SCRA 378, citing
People v. Castillo, 76 Phil. 72 (1946); Banco Español de Filipino v. Palanca, supra at
note 20; Macabingkil v. Yatco, 21 SCRA 150 (1967); Apurillo v. Garciano, 28 SCRA
1054 (1969); Shell Company of the Philippines, Ltd. v. Enage, 49 SCRA 416 (1973);
Lorenzana v. Cayetano, 68 SCRA 485 (1975).
27 Cuenca v. Atas, G.R. No. 146214, October 5, 2007, 535 SCRA 48; Alliance of
Democratic Free Labor Organization v. Laguesma, G.R. No. 108625, March 11,
1996, 254 SCRA 565.
138

c. Due Process in the Private Employment Setting.

Separately from the requirement of due process when State
action is involved, the Constitution also guarantees security of
tenure to labor,28 which the Labor Code implements by requiring
that there be a just or authorized cause before an employer can
terminate the services of a worker.29 This is the equivalent of and
what would have satisfied substantive due process had a State
action been involved. The equivalent of procedural due process is
detailed under Article 277 of the Labor Code, heretofore quoted,
which requires notice and ample opportunity to be heard, both of
which are fleshed out in the Implementing Rules of Book VI and in
Rule XXIII of Department Order No. 9, Series of 1997, of the
Department of Labor.
Thus, from the concept of due process being a limitation on state
action, the concept has been applied by statute in implementing the
guarantee of security of tenure in the private sector. In Serrano v.
NLRC,30 we had the occasion to draw the fine distinction between
constitutional due process that applies to governmental action, and
the due process requirement imposed by a statute as a limitation on
the exercise of private power. Noting the distinctions between
constitutional due process and the statutory duty imposed by the
Labor Code, the Court thus decided in Agabon v. NLRC31 to treat the
effects of failure to comply differently.
d. No Actual Hearing Requirement in the Labor Code.
That an actual hearing in every case is not intended by the Labor
Code in dismissal situations is supported by its express
_______________
28 Constitution, Article XIII, Section 3, par. 2.

29 Labor Code, Article 279.
30 Supra note 13.
31 G.R. No. 158693, November 17, 2004, 442 SCRA 573.
139
VOL. 584, APRIL 7, 2009 139

wording that only requires an “ample opportunity to be heard,” not

the “hearing or conference” that its implementing rules require.
The “ample opportunity” required to be provided by the
employer is similar in character to the process required in
administrative proceedings where, as explained above, an actual
hearing is not an absolute necessity. To be sure, it cannot refer to, or
be compared with, the requirements of a judicial proceeding whose
strict demands necessarily require a formal hearing.
“Judicial declarations are rich to the effect that the essence of due
process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one’s side. A
formal or trial type hearing is not at all times and in all
circumstances essential to due process, the requirements of which
are satisfied where the parties are afforded fair and reasonable
opportunity to explain their side in the controversy.”32 In Arboleda v.
NLRC,33 we held that:
“The requirement of notice and hearing in termination cases does not

connote full adversarial proceedings as elucidated in numerous cases
decided by this Court. Actual adversarial proceedings become necessary
only for clarification or when there is a need to propound searching
questions to witnesses who give vague testimonies. This is a procedural
right that the employee must ask for since it is not an inherent right, and
summary proceedings may be conducted thereon.”
To the same effect is the following statement of Mr. Chief Justice

Reynato S. Puno, albeit in a dissenting opinion, in Agabon: “[t]his
is not to hold that a trial-type proceeding is required to be conducted
by employers. Hearings before the employers prior to the dismissal
are in the nature of and akin to administrative due process which is
free from the rigidity of
_______________
32 Neeco III v. National Labor Relations Commission, G.R. No. 157603, June 23,
2005, 461 SCRA 169.
140

certain procedural requirements,” citing Mr. Justice Laurel’s dictum

in the landmark Ang Tibay v. Court of Industrial Relations. We have
even held in China Banking Corporation v. Borromeo34 that no
formal administrative investigation is necessary in the process of
dismissing an employee where the employee expressly admitted his
infraction. All that is needed is to inform the employee of the
findings of management.
The identity of the actor should not also be lost on us in
considering the “ample opportunity” requirement. Judicial and
quasi-judicial processes are undertaken by the state, while the
dismissal action the Labor Code regulates is undertaken by a private
sector employer. A distinction between these actors ought to be
recognized and given a proper valuation in considering the processes
required from each. Due process in the private realm does not
address an all-powerful State clothed with police power and the
powers of taxation and eminent domain; it merely addresses a
private sector-employer who, constitutionally, shares the same
responsibility with the worker for industrial peace, and who is also
entitled to reasonable returns on investments and to expansion and
growth.35 Proportionality with the power sought to be limited
dictates that due process in its flexible signification be applied to a
private sector dismissal situation, ensuring only that there is fairness
at all times so that the constitutional guarantee of security of tenure
is not defeated. Thus, the required processes in a private sector
dismissal situation should, at the most, be equivalent to those
required in administrative proceedings; whether an actual hearing
would be required should depend on the circumstances of each case.
Last but not the least, reasonableness and practicality dictate
against an actual hearing requirement in every case of dismissal.
There are simply too many variables to consider in the private sector
dismissal situation—ranging from the cir-
_______________
34 G.R. No. 156515, October 19, 2004, 440 SCRA 621.

35 Constitution, Article XIII, Section 3, pars. 3 and 4.
141
VOL. 584, APRIL 7, 2009 141

cumstances of the employer, those of the employee, the presence of
a union, and the attendant circumstances of the dismissal itself—so
that a hard and fast actual hearing requirement may already be
unreasonable for being way beyond what the statutory procedural
due process requirement demands. Such a requirement can also
substantially tie-up management operations and defeat the
efficiency, growth and the profits that management and employees
mutually need.
To recapitulate, the “ample opportunity to be heard” the Labor
Code expressly requires does not mean an actual hearing in every
dismissal action by the employer; whether an actual hearing would
be required depends on the circumstances of each case as each
particular situation demands. Thus, the identical rulings in King of
Kings of Transport, Inc. vs. Mamac36 and R.B. Michael Press vs.
Galit37 that an actual hearing is a mandatory requirement in
employee dismissal should now be read with our present ruling in
mind. The Department of Labor and Employment should as well be
on notice that this ruling is the legally correct interpretation of Rule
I, Section (2)(d)(ii) of Book VI of the Rules to Implement the Labor
Code.
SEPARATE CONCURRING
AND DISSENTING OPINION
VELASCO, JR., J.:
I concur in my esteemed colleague’s well-written ponencia,
except in one issue, to which I hereby register my dissent.
In gist, the facts as contained in the ponencia show that Felix B.
Perez and Amante G. Doria were dismissed by the Philippine
Telegraph and Telephone Company without a hearing or conference
for a series of allegedly anomalous transactions.
_______________
36 Supra note 16.

37 Supra note 17.
142

The only issue covered by my dissent is, are Perez and Doria
entitled to a hearing or conference as mandated by Section 2(b),
Rule XXIII, Implementing Rules of Book V of the Labor Code?
The ponencia resolved this in the negative and held that Sec.
2(b), Rule XXIII, Implementing Rules of Book V,1 by requiring a
hearing, went beyond the terms and provisions of the Labor Code,
particularly Article 277(b) thereof that merely requires the employer
to provide employees with ample opportunity to be heard and to
defend themselves with the assistance of their representatives if they
so desire. The ponencia, however, conceded that a formal hearing or
conference becomes mandatory only when requested by the
employee in writing or substantial evidentiary disputes exist or a
company rule or practice requires it or when similar circumstances
justify. I submit that the actual hearing or conference is mandatory in
ALL dismissal cases for the following reasons:
(1) Art. 277(b) of the Labor Code provides that:
“(b) Subject to the constitutional right of workers to security of tenure

and their right to be protected against dismissal except for a just and
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 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
_______________
1 Now only Sec. 2(d)(ii), Rule I, Implementing Rules of Book VI of the Labor Code
remains, as amended by Department Order No. 40-03, Series of 2003.
143
VOL. 584, APRIL 7, 2009 143

the termination was for a valid or authorized cause shall rest on the
employer.” (Emphasis supplied.)
The aforequoted provision states that employees are to be given

“ample” opportunity to be heard and defend themselves. However,
the word “ample” is vague and not defined in the said provision.
Since the meaning of this word is unclear, then it should be given a
liberal construction to favor labor. “Ample” means “considerably
more than adequate or sufficient.”2 Ample opportunity can be
construed to be broad enough to encompass an actual hearing or
conference. To be sure, opportunity to be heard does not exclude an
actual or formal hearing since such requirement would grant more
than sufficient chance for an employee to be heard and adduce
evidence. In this sense, I believe there is no discrepancy between
Art. 277 and the Implementing Rule in question.
The Implementing Rules thus makes available for employees a
considerably or generously sufficient opportunity to defend
themselves through a hearing or conference. In Tanala v. NLRC, we
said that:
“With respect to the issue of whether petitioner was denied due process
in the administrative procedure entailed in his dismissal, we agree with the
labor arbiter that petitioner was indeed denied procedural due process
therein. His dismissal was not preceded by any notice of the charges against
him and a hearing thereon. The twin requirements of notice and hearing
constitute the essential elements of due process in cases of dismissal of
employees. The purpose of the first requirement is obviously to enable the
employee to defend himself against the charge preferred against him by
presenting and substantiating his version of the facts.
Contrary to the findings of the NLRC, the notice of preventive
suspension cannot be considered as an adequate notice. Even the fact that
petitioner submitted a written explanation after the receipt of the order
of suspension is not the “ample opportunity to be heard” contemplated
by law. Ample opportu-
_______________
2 Webster’s Third New International Dictionary of the English Language Unabridged 74

(1993).
144

nity to be heard is especially accorded to the employee sought to be

dismissed after he is informed of the charges in order to give him an
opportunity to refute such accusations levelled against him.
Furthermore, this Court has repeatedly held that to meet the requirements
of due process, the law requires that an employer must furnish the worker
sought to be dismissed with two written notices before termination of
employment can be legally effected, that is, (1) a notice which apprises the
employee of the particular acts or omissions for which his dismissal is
sought; and (2) the subsequent notice, after due hearing, which informs the
employee of the employer’s decision to dismiss him.”3 (Emphasis supplied.)
(2) The ponencia seems to underscore the absence of any

mention of an “actual hearing” in Art. 277(b). It is conceded that
there is no explicit mention of an actual hearing or conference in
said legal provision. As earlier discussed, the requisite hearing is
captured in the phrase “ample opportunity to be heard and to defend
himself with the assistance of his representative if he so desires.”
Even if the phrase “actual hearing” is not specified in Art. 277(b),
the same thing is true with respect to the second written notice
informing the employee of the employer’s decision which is
likewise unclear in said provision. Thus, the fact that Art. 277(b)
does not expressly mention actual hearing in Art. 277(b) does not
bar the Secretary of Labor from issuing a rule (Sec. 2[d][ii], Rule I,
Implementing Rules of Book VI of the Labor Code) implementing
the provision that what really is meant is an actual hearing or
conference. It should be noted that the Secretary of Labor also
issued a rule on the need for a second written notice on the decision
rendered in the illegal dismissal proceedings despite the silence of
Art. 277(b) on the need for a written notice of the employer’s
decision.
(3) The majority opinion cites the rule in statutory construction
that in case of discrepancy between the basic law
_______________
3 G.R. No. 116588, January 24, 1996, 252 SCRA 314, 320-321.
145
VOL. 584, APRIL 7, 2009 145

and its implementing rules, the basic law prevails. In the case at bar,
said principle does not apply because precisely there is no clear-cut
discrepancy between Art. 277(b) of the Labor Code and Sec. 2(b),
Rule XXIII, Implementing Rules of Book V of the Labor Code. To
the extent of being repetitive the phrase “ample opportunity to be
heard” can be construed to cover an actual hearing. This way, Sec.
2(b), Rule XXIII does not conflict with nor contravene Art. 277(b).
(4) Art. 4 of the Labor Code states that “all doubts in the
implementation and interpretation of the provisions of [the Labor
Code], including its implementing rules and regulations, shall be
resolved in favor of labor.” Since the law itself invests the
Department of Labor and Employment (DOLE) the power to
promulgate rules and regulations to set the standard guidelines for
the realization of the provision, then the Implementing Rules should
be liberally construed to favor labor. The Implementing Rules, being
a product of such rule-making power, has the force and effect of law.
Art. 277 of the Labor Code granted the DOLE the authority to
develop the guidelines to enforce the process. In accordance with the
mandate of the law, the DOLE developed Rule I, Sec. 2(d) of the
Implementing Rules of Book VI of the Labor Code which provides
that:
“(d) In all cases of termination of employment, the following standards

of due process shall be substantially observed:
For termination of employment based on just causes defined in Article
282 of the Labor Code:
(i) A written notice served on the employee specifying the
ground or grounds for termination, and giving said employee
reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee
concerned, with the assistance of counsel if he so desires is given
opportunity to respond to the charge, present his evidence, or rebut
the evidence presented against him.
indicating that upon due consideration of all the circ-
146

umstances, grounds have been established to justify his termination.”
In any case, the standards of due process contained in Sec. 2(b),

Rule XXIII, Implementing Rules of Book V of the Labor Code, and
now in Sec. 2(d)(ii), Rule I, Implementing Rules of Books VI of the
Labor Code, do not go beyond the terms and provisions of the Labor
Code. The Implementing Rules merely encapsulates a vague concept
into a concrete idea. In what forum can an employer provide
employees with an ample opportunity to be heard and defend
themselves with the assistance of a representative? This situation
can only take place in a formal hearing or conference which the
Implementing Rules provides. The employees may only be fully
afforded a chance to respond to the charges made against them,
present their evidence, or rebut the evidence presented against them
in a formal hearing or conference. Therefore, in my humble opinion,
there is no discrepancy between the law and the rules implementing
the Labor Code.
(5) In addition, the hearing or conference requirement in
termination cases finds support in the long standing jurisprudence in
Ang Tibay v. Court of Industrial Relations, wherein we declared that
the right to a hearing is one of the cardinal primary rights4 which
must be respected even in cases of administrative character. We
held:
“There are cardinal rights which must be respected even in proceedings

of this character. The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to present his own case
and submit evidence in support thereof. Not only must the party be given an
opportunity to present his case and to adduce evidence tending to establish
the rights which he asserts but the tribunal must consider the evidence
presented.”
This Court has recognized even the right of students to a

summary proceeding, in which (a) the students must be
_______________
4 69 Phil. 635, 641-644 (1940).
147
VOL. 584, APRIL 7, 2009 147

informed in writing of the nature and cause of any accusation

against them; (b) they shall have the right to answer the charges
against them, with the assistance of counsel, if they so desire; (c)
they shall be informed of the evidence against them; (d) they shall
have the right to adduce evidence in their own behalf; and (e) the
evidence must be duly considered by the investigating committee or
official designated by the school authorities to hear and decide the
case.5
If administrative cases recognized that the right to a hearing is a
“cardinal primary right” and students are afforded the opportunity to
defend themselves by allowing them to answer the charges through
their counsel and by adducing their evidence to rebut the charges,
what more for employees or laborers in the private sector who are
specifically protected by the Constitution’s social justice provision?
It would be unjust to the laborers if they are not afforded the same
chance given to students or even to employees in administrative
cases.
(6) Removing the right of employees to a hearing prior to
termination would deprive them the opportunity to adduce their
evidence. Notice can be taken of the limited opportunity given to the
employees by the directive in the first written notice that embodies
the charges. More often than not, the directive is only for the
employees to explain their side without affording them the right to
present evidence. Furthermore, a hearing gives employees the
chance to hire the services of counsel whose presence is beneficial to
employees during hearings because the counsel knows the
intricacies of the law and the strategies to defend the client––
something with which a lay person is most assuredly not familiar. A
mere first notice is not sufficient enough for employees to assemble
evidence for their defense. Most often, the first notice merely serves
as or is limited to a general notice which cites the company rules
that were allegedly violated by the
_______________
5 Guzman v. National University, No. L-68288, July 11, 1986, 142 SCRA 699,
706-707.
148

employees without explaining in detail the facts and circumstances

pertinent to the charges and without attaching the pieces of evidence
supporting the same. Lastly, the holding of an actual hearing will
prevent the railroading of dismissal of employees as the employers
are obliged to present convincing evidence to support the charges.
All in all, the advantages far outweigh the disadvantages in holding
an actual hearing.
(7) The indispensability of a hearing is advantageous to both
the employer and the employee because they are given the
opportunity to settle the dispute or resort to the use of alternative
dispute resolution to deflect the filing of cases with the NLRC and
later the courts. It is important that a hearing is prescribed by the law
since this is the best time that the possibility of a compromise
agreement or a settlement can be exhaustively discussed and entered
into. During this hearing, the relations of the parties may not be that
strained and, therefore, they are more likely receptive to a
compromise. Once dismissal is ordered by the employer, the
deteriorated relationship renders the possibility of an amicable
settlement almost nil. Thus, a hearing can help the parties come up
with a settlement that will benefit them and encourage an out-of-
court settlement which would be less expensive, creating a “win-
win” situation for them. Of course the compromise agreement, as a
product of the settlement, should be subscribed and sworn to before
the labor official or arbiter.
(8) Recent holdings of this Court have explained the propriety
and necessity of an actual hearing or conference before an employee
is dismissed. In King of Kings Transport, Inc. v. Mamac,6 reiterated
in R.B. Michael Press v. Galit,7 we explained that the requirement of
a hearing or conference is a necessary and indispensable element of
procedural due process in the termination of employees, thus:
_______________
6 G.R. No. 166208, June 29, 2007, 526 SCRA 116.

149
VOL. 584, APRIL 7, 2009 149

“To clarify, the following should be considered in terminating the

services of employees:
(1) The first written notice to be served on the employees should
contain the specific causes or grounds for termination against them, and a
directive that the employees are given the opportunity to submit their
written explanation within a reasonable period. “Reasonable opportunity”
under the Omnibus Rules means every kind of assistance that management
must accord to the employees to enable them to prepare adequately for their
defense. This should be construed as a period of at least five (5) calendar
days from receipt of the notice to give the employees an opportunity to
study the accusation against them, consult a union official or lawyer, gather
data and evidence, and decide on the defenses they will raise against the
complaint. Moreover, in order to enable the employees to intelligently
prepare their explanation and defenses, the notice should contain a detailed
narration of the facts and circumstances that will serve as basis for the
charge against the employees. A general description of the charge will not
suffice. Lastly, the notice should specifically mention which company rules,
if any, are violated and/or which among the grounds under Art. 282 is being
charged against the employees.
(2) After serving the first notice, the employers should schedule and
conduct a hearing or conference wherein the employees will be given the
opportunity to: (1) explain and clarify their defenses to the charge against
them; (2) present evidence in support of their defenses; and (3) rebut the
evidence presented against them by the management. During the hearing or
conference, the employees are given the chance to defend themselves
personally, with the assistance of a representative or counsel of their choice.
Moreover, this conference or hearing could be used by the parties as an
opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the
employers shall serve the employees a written notice of termination
indicating that: (1) all circumstances involving the charge against the
employees have been considered; and (2) grounds have been established to
justify the severance of their employment.”8
_______________
8 King of Kings Transport, Inc., supra at pp. 125-126.
150

(9) Lastly, a liberal interpretation of Art. 277(b) of the Labor

Code would be in keeping with Art. XIII of the Constitution which
dictates the promotion of social justice and ordains full protection to
labor. The basic tenet of social justice is that “those who have less in
life must have more in law.” Social justice commands the protection
by the State of the needy and the less fortunate members of society.
This command becomes all the more firm in labor cases where
security of tenure is also an issue. In Rance v. NLRC, we declared
that:
“It is the policy of the state to assure the right of workers to “security of
tenure” (Article XIII, Sec. 3 of the New Constitution, Section 9, Article II of
the 1973 Constitution). The guarantee is an act of social justice. When a
person has no property, his job may possibly be his only possession or
means of livelihood. Therefore, he should be protected against any arbitrary
deprivation of his job. Article 280 of the Labor Code has construed security
of tenure as meaning that “the employer shall not terminate the services of
an employee except for a just cause or when authorized by” the code
(Bundoc v. People’s Bank and Trust Company, 103 SCRA 599 [1981]).
Dismissal is not justified for being arbitrary where the workers were denied
due process (Reyes v. Philippine Duplicators, Inc., 109 SCRA 489 [1981])
and a clear denial of due process, or constitutional right must be safeguarded
against at all times, (De Leon v. National Labor Relations Commission, 100
SCRA 691 [1980]).”9
Between an employer and an employee, the latter is oftentimes

on the losing or inferior position. Without the mandatory
requirement of a hearing, employees may be unjustly terminated
from their work, effectively losing their means of livelihood. The
right of persons to their work is considered a property right which is
well within the meaning of the constitutional guarantee.10 Depriving
employees their job without
_______________

9 No. L-68147, June 30, 1988, 163 SCRA 279, 284-285.
10 Batangas Laguna Tayabas Bus Co. v. Court of Appeals, No. L-38482, June 18,
1976, 71 SCRA 470, 480.
151
VOL. 584, APRIL 7, 2009 151

due process essentially amounts to a deprivation of property without

due process.
We have applied social justice even to cases of just dismissal to
grant equitable relief to laborers who were validly dismissed. We
also termed social justice as “compassionate” justice.11 Thus, the
State should always show compassion and afford protection to those
who are in most need––the laborers. Knowing that poverty and gross
inequality are among the major problems of our country, then laws
and procedures which have the aim of alleviating those problems
should be liberally construed and interpreted in favor of the
underprivileged. Thus, social legislations, such as the Labor Code,
should be liberally construed to attain its laudable objectives.12
Petition granted, judgment set aside. That of Labor Arbiter

affirmed with modification.
Note.—The Labor Code presents no textually demonstrable

commitment to invalidate a dismissal for just cause due to the
absence of notice or hearing. (Agabon vs. National Labor Relations
Commission, 442 SCRA 573 [2004])
——o0o——
_______________
11 Tanala, supra note 3, at p. 320.

12 Manahan v. Employees’ Compensation Commission, No. L-44899, April 22,
1981, 104 SCRA 198, 202.
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G.R. No. 152048. April 7, 2009.*

FELIX B. PEREZ and AMANTE G. DORIA, petitioners, vs.

Labor Law; Termination of Employment; Loss of Trust and

VOL. 584, APRIL 7, 2009 111

Perez vs. Philippine Telegraph and Telephone Company

shipping documents could not reasonably be attributed to petitioners

112 SUPREME COURT REPORTS ANNOTATED

Perez vs. Philippine Telegraph and Telephone Company

VOL. 584, APRIL 7, 2009 113

Perez vs. Philippine Telegraph and Telephone Company

heard” may in fact include an actual hearing, it is not limited to a formal

114 SUPREME COURT REPORTS ANNOTATED

Perez vs. Philippine Telegraph and Telephone Company

necessity. To be sure, it cannot refer to, or be compared with, the

VOL. 584, APRIL 7, 2009 115

Perez vs. Philippine Telegraph and Telephone Company

written notice informing the employee of the employer’s decision which is

PETITION for review on certiorari of a decision of the Court of

116 SUPREME COURT REPORTS ANNOTATED

Acting on an alleged unsigned letter regarding anomalous

“In line with the recommendation of the AVP-Audit as presented in his

On November 9, 1993, petitioners ﬁled a complaint for illegal

1 Records, pp. 70-71.

VOL. 584, APRIL 7, 2009 117

The National Labor Relations Commission (NLRC) reversed the

6 Decision penned by Commissioner Ireneo B. Bernardo, and concurred in by

“[L]oss of conﬁdence should not be simulated. It should not be used as a

10 Commercial Motors Corporation v. Commissioners, et al., G.R. No. 14762, 10 December

VOL. 584, APRIL 7, 2009 119

overwhelming evidence to the contrary. It must be genuine, not a mere

The burden of proof rests on the employer to establish that the

120 SUPREME COURT REPORTS ANNOTATED

The omnibus rules implementing the Labor Code, on the other

VOL. 584, APRIL 7, 2009 121

the charge, present his evidence or rebut the evidence presented

Which one should be followed? Is a hearing (or conference)

17 Section 2(d), Rule I, Implementing Rules of Book VI of the LABOR CODE.

122 SUPREME COURT REPORTS ANNOTATED

the provisions of the enabling statute.19 As such, it cannot amend the

VOL. 584, APRIL 7, 2009 123

process negates any concept of inﬂexible procedures universally

22 Cafeteria Workers v. McElroy, 367 U.S. 886 (1961).

124 SUPREME COURT REPORTS ANNOTATED

gumentation alone inasmuch as one may be heard just as effectively

In Autobus Workers’ Union v. NLRC,26 we ruled:

“The twin requirements of notice and hearing constitute the essential

24 Rizal Commercial Banking Corporation v. Commissioner of Internal Revenue, G.R. No.

VOL. 584, APRIL 7, 2009 125

mandatory in cases of complaints lodged before the Labor Arbiter.”

In Solid Development Corporation Workers Association v. Solid

“[W]ell-settled is the dictum that the twin requirements of notice and

Our holding in National Semiconductor HK Distribution, Ltd. v.

“That the investigations conducted by petitioner may not be considered

27 G.R. No. 165995, 14 August 2007, 530 SCRA 132.

126 SUPREME COURT REPORTS ANNOTATED

VOL. 584, APRIL 7, 2009 127

plements the “ample opportunity to be heard” standard under Article