In the case before us, the Court is unanimous in at least two findings: (1) petitioner’s dismissal was due to an authorized cause, redundancy; and (2) petitioner was notified of his dismissal only on the very day his employment was terminated. The contentious issue arising out of these two findings is as follows: What is the legal effect and the corresponding sanction for the failure of the employer to give the employee and the Department of Labor and Employment (DOLE) the 30-day notice of termination required under Article 283 of the Labor Code?

During the last ten (10) years, the Court has answered the foregoing question by ruling that the dismissal should be upheld although the employee should be given "indemnity or damages" ranging from P1,000 to P10,000 depending on the circumstances.

The present ponencia of Mr. Justice Mendoza holds that "the termination of his employment should be considered ineffectual and the [employee] should be paid back wages" from the time of his dismissal until the Court finds that the dismissal was for a just cause.

I am grateful that the Court has decided to reexamine our ten-year doctrine on this question and has at least, in the process, increased the monetary award that should go to the dismissed employee -- from a nominal sum in the concept "indemnity or damages" to "full back wages." Shortly after my assumption of office on October 10, 1995, I already questioned this practice of granting "indemnity only" to employees who were dismissed for cause but without due process.1 [See Panganiban, Battles in the Supreme Court, 1998 ed., p. 155 et seq.] I formally registered reservations on this rule in my ponencia in MGG Marine Services v. NLRC2 [259 SCRA 665, July 29, 1996.] and gave it full discussion in my Dissents in Better Buildings v. NLRC3 [283 SCRA 242, December 15, 1997. In that case, I proposed to grant separation pay in lieu of reinstatement because, by the employee’s acts, he had made reinstatement improper, a fact not present in the instant case.] and in Del Val v. NLRC.4 [296 SCRA 283, September 28, 1998.]

Without in any way diminishing my appreciation of this reexamination and of the more financially-generous treatment the Court has accorded labor, I write to take issue with the legal basis of my esteemed colleague, Mr. Justice Mendoza, in arriving at his legal conclusion that "the employer’s failure to comply with the notice requirement does not constitute a denial of due process but a mere failure to observe a procedure for the termination of employment which makes the termination of employment merely ineffectual." In short, he believes that (1) the 30-day notice requirement finds basis only in the Labor Code, and (2) the sanction for its violation is only "full back wages."

With due respect, I submit the following counter-arguments:

In short, when an employee is dismissed without notice and hearing, the effect is an illegal dismissal and the appropriate reliefs are reinstatement and full back wages. In ruling that the dismissal should be upheld, the Court majority has virtually rendered nugatory the employee’s right to due process as mandated by law and the Constitution. It implicitly allows the employer to simply ignore such right and to just pay the employee. While it increases the payment to "full back wages," it doctrinally denigrates his right to due process to a mere statutory right to notice.

Let me explain the foregoing by starting with a short background of our jurisprudence on the right to due process.

In the past, this Court has untiringly reiterated that there are two essential requisites for an employer's valid termination of an employee’s services: (1) a just5 [Art. 282 of the Labor Code provides:

(e) Other causes analogous to the foregoing."] or authorized6 [Arts. 283 & 284 provide:

ART. 284. Disease as a ground for termination. -- An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year."] cause and (2) due process.7 [Mapalo v. NLRC, 233 SCRA 266, June 17, 1994; Ala Mode Garments, Inc. v. NLRC, 268 SCRA 497, February 17, 1997; Pizza Hut/Progressive Development Corp. v. NLRC, 252 SCRA 531, January 29, 1996; MGG Marine Services, Inc. v. NLRC, 259 SCRA 664, July 29, 1996; Ranises v. NLRC, 262 SCRA 671, September 24, 1996.] During the last ten years, the Court has been quite firm in this doctrinal concept, but it has been less than consistent in declaring the illegality of a dismissal when due process has not been observed. This is particularly noticeable in the relief granted. Where there has been no just or authorized cause, the employee is awarded reinstatement or separation pay, and back wages.8 [Conti v. NLRC, 271 SCRA 114, April 10, 1997; Alhambra Industries, Inc. v. NLRC, 238 SCRA 232, November 18, 1994; JGB and Associates, Inc. v. NLRC, 254 SCRA 457, March 7, 1996; Samillano v. NLRC, 265 SCRA 788, December 23, 1996.] If only the second requisite (due process) has not been fulfilled, the employee, as earlier stated, is granted indemnity or damages amounting to a measly P1,000 up to P10,000.9 [Alhambra Industries, Inc. v. NLRC, ibid.; Segismundo v. NLRC, 239 SCRA 167, December 13, 1994; Sebuguero v. NLRC, 248 SCRA 532, September 27, 1995; Wenphil Corp. v. NLRC, 170 SCRA 69, February 8, 1989.]

I respectfully submit that illegal dismissal results not only from the absence of a legal cause (enumerated in Arts. 282 to 284 of the Labor Code), but likewise from the failure to observe due process. Indeed, many are the cases, labor or otherwise, in which acts violative of due process are unequivocally voided or declared illegal by the Supreme Court. In Pepsi-Cola Bottling Co. v. NLRC,10 [210 SCRA 277, 286, June 23, 1992, per Gutierrez Jr., J.] the Court categorically ruled that the failure of management to comply with the requirements of due process made its judgment of dismissal "void and non-existent."

This Court in People v. Bocar11 [138 SCRA 166, 170-171, August 16, 1985, per Makasiar, CJ.] emphatically made the following pronouncement, which has been reiterated in several cases:12 [Among those are Galman v. Sandiganbayan, 144 SCRA 43, 87, September 12, 1986; People v. Albano, 163 SCRA 511, July 26, 1988; Saldana v. Court of Appeals, 190 SCRA 396, 403, October 11, 1990; Paulin v. Gimenez, 217 SCRA 386, 392, January 21, 1993.]

In the earlier case Bacus v. Ople,13 [132 SCRA 690, October 23, 1984, per Cuevas, J.] this Court also nullified the then labor minister's clearance to terminate the employment of company workers who had supposedly staged an illegal strike. The reason for this ruling was the denial of sufficient opportunity for them to present their evidence and prove their case. The Court explained:14 [Ibid., p. 703.]

While it is true that administrative agencies exercising quasi-judicial functions are free from the rigidities of procedure, it is equally well-settled in this jurisdiction that avoidance of such technicalities of law or procedure in ascertaining objectively the facts in each case should not, however, cause a denial of due process. The relative freedom of the labor arbiter from the rigidities of procedure cannot be invoked to evade what was clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial Relations that all administrative bodies cannot ignore or disregard the fundamental and essential requirements of due process."

In the said case, the respondent company was ordered to reinstate the dismissed workers, pending a hearing "giving them the opportunity to be heard and present their evidence."

In Philippine National Bank v. Apalisok,15 [199 SCRA 92, July 12, 1991, per Narvasa, J. (later CJ)] Primitivo Virtudazo, an employee of PNB, was served a Memorandum stating the finding against him of a prima facie case for dishonesty and violation of bank rules and regulations. He submitted his Answer denying the charges and explaining his defenses.

Later, two personnel examiners of the bank conducted a fact-finding investigation. They stressed to him that a formal investigation would follow, in which he could confront and examine the witnesses for the bank, as well as present his own. What followed, however, was a Memorandum notifying him that he had been found guilty of the charges and that he was being dismissed. After several futile attempts to secure a copy of the Decision rendered against him, he instituted against PNB a Complaint for illegal dismissal and prayed for reinstatement and damages.

The trial court held that Virtudazo had been deprived of his rights to be formally investigated and to cross-examine the witnesses. This Court sustained the trial court, stating resolutely: "The proceedings having been conducted without according to Virtudazo the 'cardinal primary rights of due process' guaranteed to every party in an administrative or quasi-judicial proceeding, said proceedings must be pronounced null and void."16 [Ibid., p. 101.]

Also in Fabella v. Court of Appeals,17 [282 SCRA 256, November 28, 1997.] this Court declared the dismissal of the schoolteachers illegal, because the administrative body that heard the charges against them had not afforded them their right to procedural due process. The proceedings were declared void, and the orders for their dismissal set aside. We unqualifiedly reinstated the schoolteachers, to whom we awarded all monetary benefits that had accrued to them during the period of their unjustified suspension or dismissal.

In People v. San Diego,18 [26 SCRA 252, December 24, 1968.] People v. Sola,19 [103 SCRA 393, March 17, 1981.] People v. Dacudao,20 [170 SCRA 489, February 21, 1989.] People v. Calo Jr.21 [186 SCRA 620, June 18, 1990.] and People v. Burgos,22 [200 SCRA 67, August 2, 1991.] this Court similarly voided the trial court's grant of bail to the accused upon a finding that the prosecution had been deprived of procedural due process.

In People v. Sevilleno,23 [GR No. 129058, March 29, 1999, per Bellosillo, J.] the Court noted that the trial judge "hardly satisfied the requisite searching inquiry" due the accused when he pleaded guilty to the capital offense he had been charged with. We thus concluded that "the accused was not properly accorded his fundamental right to be informed of the precise nature of the accusation leveled against him." Because of the nonobservance of "the fundamental requirements of fairness and due process," the appealed Decision was annulled and set aside, and the case was remanded for the proper arraignment and trial of the accused.

Recently, the Court vacated its earlier Decision24 [GR No. 121176, May 14, 1997.] in People v. Parazo25 [July 8, 1999 Resolution on the Motion for Reconsideration, per Purisima, J.] upon realizing that the accused -- "a deaf-mute, a mental retardate, whose mental age [was] only seven (7) years and nine (9) months, and with low IQ of 60 only" -- had not been ably assisted by a sign language expert during his arraignment and trial. Citing People v. Crisologo,26 [150 SCRA 653, 656, June 17, 1987, per Padilla, J.] we ruled that the accused had been deprived of "a full and fair trial and a reasonable opportunity to defend himself." He had in effect been denied his fundamental right to due process of law. Hence, we set aside the trial proceedings and granted the accused a re-arraignment and a retrial.

Of late, we also set aside a Comelec Resolution disallowing the use by a candidate of a certain nickname for the purpose of her election candidacy. The Resolution was issued pursuant to a letter-petition which was passed upon by the Comelec without affording the candidate the opportunity to explain her side and to counter the allegations in said letter-petition. In invalidating the said Resolution, we again underscored the necessity of the observance of the twin requirements of notice and hearing before any decision can be validly rendered in a case.27 [Villarosa v. Comelec, GR No. 133927, November 29, 1999.]

Clearly deducible from our extant jurisprudence is that the denial of a person’s fundamental right to due process amounts to the illegality of the proceedings against him. Consequently, he is brought back to his status quo ante, not merely awarded nominal damages or indemnity.

Our labor force deserves no less. Indeed, the State recognizes it as its primary social economic force,28 [§ 18, Art. II, 1987 Constitution.] to which it is constitutionally mandated to afford full protection.29 [§ 3, Art. XIII, ibid.] Yet, refusing to declare the illegality of dismissals without due process, we have continued to impose upon the erring employer the simplistic penalty of paying indemnity only. Hence, I submit that it is time for us to denounce these dismissals as null and void and to grant our workers these proper reliefs: (1) the declaration that the termination or dismissal is illegal and unconstitutional and (2) the reinstatement of the employee plus full back wages. The present ruling of the Court is manifestly inconsistent with existing jurisprudence which holds that proceedings held without notice and hearing are null and void, since they amount to a violation of due process, and therefore bring back the parties to the status quo ante.

I am fully aware that in a long line of cases starting with Wenphil v. NLRC,30 [170 SCRA 69, February 8, 1989, per Gancayco, J.] the Court has held: where there is just cause for the dismissal of an employee but the employer fails to follow the requirements of procedural due process, the former is not entitled to back wages, reinstatement (or separation pay in case reinstatement is no longer feasible) or other benefits. Instead, the employee is granted an indemnity (or penalty or damages) ranging from P1,00031 [In Wenphil Corp. v. NLRC, ibid.; Sampaguita Garments Corp. v. NLRC, 233 SCRA 260, June 17, 1994; Villarama v. NLRC, 236 SCRA 280, September 2, 1994; Rubberworld (Phils.), Inc. v. NLRC, 183 SCRA 421, March 21, 1990; Kwikway Engineering Works v. NLRC, 195 SCRA 526, March 22, 1991, and several other cases.] to as much as P10,000,32 [In Reta v. NLRC, 232 SCRA 613, May 27, 1994; and Alhambra Industries, Inc. v. NLRC, 238 SCRA 232, November 18, 1994.] depending on the circumstances of the case and the gravity of the employer’s omission. Since then, Wenphil has perfunctorily been applied in most subsequent cases33 [Seahorse Maritime Corp. v. NLRC, 173 SCRA 390, May 15, 1989; Rubberworld (Phils.), Inc. v. NLRC, supra; Cariño v. NLRC, 185 SCRA 177, May 8, 1990; Great Pacific Life Assurance Corp. v. NLRC, 187 SCRA 694, July 23, 1990; Cathedral School of Technology v. NLRC, 214 SCRA 551, October 13, 1992; Aurelio v. NLRC, 221 SCRA 432, April 12, 1993; Sampaguita Garments Corp. v. NLRC, 233 SCRA 260, June 17, 1994; Villarama v. NLRC, supra.] involving the violation of due process (although just cause has been duly proven), without regard for the peculiar factual milieu of each case. Indemnity or damages has become an easy substitute for due process.

Be it remembered, however, that the facts in Wenphil clearly showed the impracticality and the futility of observing the procedure laid down by law and by the Constitution for terminating employment. The employee involved therein appeared to have exhibited a violent temper and caused trouble during office hours. In an altercation with a co-employee, he "slapped [the latter’s] cap, stepped on his foot and picked up the ice scooper and brandished it against [him]." When summoned by the assistant manager, the employee "shouted and uttered profane words" instead of giving an explanation. He was caught virtually in flagrante delicto in the presence of many people. Under the circumstances obtaining, swift action was necessary to preserve order and discipline, as well as to safeguard the customers’ confidence in the employer’s business -- a fast-food chain catering to the general public where courtesy is a prized virtue.

However, in most of the succeeding cases, including the present one before us in which the petitioner was dismissed on the very day he was served notice, there were ample opportunities for the employers to observe the requisites of due process. There were no exigencies that called for immediate response. And yet, Wenphil was instantly invoked and due process brushed aside.

I believe that the price that the Court has set for the infringement of the fundamental right to due process is too insignificant, too niggardly, and sometimes even too late. I believe that imposing a stiffer sanction is the only way to emphasize to employers the extreme importance of the right to due process in our democratic system. Such right is too sacred to be taken for granted or glossed over in a cavalier fashion. To hold otherwise, as by simply imposing an indemnity or even "full back wages," is to allow the rich and powerful to virtually purchase and to thereby stifle a constitutional right granted to the poor and marginalized.

It may be asked: If the employee is guilty anyway, what difference would it make if he is fired without due process? By the same token, it may be asked: If in the end, after due hearing, a criminal offender is found guilty anyway, what difference would it make if he is simply penalized immediately without the trouble and the expense of trial? The absurdity of this argument is too apparent to deserve further discourse.34 [See Concurring and Dissenting Opinion in Better Buildings, Inc. v. NLRC, 283 SCRA 242, 256, December 15, 1997.]

According to the ponencia of Mr. Justice Mendoza, the "violation of the notice requirement cannot be considered a denial of due process resulting in the nullity of the employee’s dismissal or lay-off." He argues that the due process clause of the Constitution may be used against the government only. Since the Labor Code does not accord employees the right to a hearing, ergo, he concludes, they do not have the right to due process.

I disagree. True, as pointed out by Mr. Justice Mendoza, traditional doctrine holds that constitutional rights may be invoked only against the State. This is because in the past, only the State was in a position to violate these rights, Including the due process clause. However, with the advent of liberalization, deregulation and privatization, the State tended to cede some of its powers to the "market forces." Hence, corporate behemoths and even individuals may now be sources of abuses and threats to human rights and liberties. I believe, therefore, that such traditional doctrine should be modified to enable the judiciary to cope with these new paradigms and to continue protecting the people from new forms of abuses.34-a [See Panganiban, Leadership by Example, 1999 ed., pp. 60-61.]

Indeed, the employee is entitled to due process not because of the Labor Code, but because of the Constitution. Elementary is the doctrine that constitutional provisions are deemed written into every statute, contract or undertaking. Worth noting is that "[o]ne’s employment, profession, trade or calling is a property right within the protection of the constitutional guaranty of due process of law."35 [Wallem Maritime Services, Inc. v. NLRC, 263 SCRA 174, October 15, 1996; per Romero, J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 101.]

In a long line of cases involving judicial, quasi-judicial and administrative proceedings, some of which I summarized earlier, the Court has held that the twin requirements of notice and hearing (or, at the very least, an opportunity to be heard) constitute the essential elements of due process. In labor proceedings, both are the conditio sine qua non for a dismissal to be validly effected.36 [RCPI v. NLRC, 223 SCRA 656, June 25, 1993; Samillano v. NLRC, 265 SCRA 788, December 23, 1996.] The perceptive Justice Irene Cortes has aptly stated: "One cannot go without the other, for otherwise the termination would, in the eyes of the law, be illegal."37 [San Miguel Corporation v. NLRC, 173 SCRA 314, May 12, 1989.]

Besides, it is really inaccurate to say that the Labor Code grants "notice alone" to employees being dismissed due to an authorized cause. Article 277 (b)38 ["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 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. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a 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 lay-off."] of the said Code explicitly provides that the termination of employment by the employer is "subject to the constitutional right of workers to security of tenure[;] x x x 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 x x x." Significantly, the provision requires the employer "to afford [the employee] ample opportunity to be heard" when the termination is due to a "just and authorized cause." I submit that this provision on "ample opportunity to be heard" applies to dismissals under Articles 282, 283 and 284 of the Labor Code.

In addition, to say that the termination is "simply ineffectual" for failure to comply with the 30-day written notice and, at the same time, to conclude that it has "legal effect" appears to be contradictory. Ineffectual means "having no legal force."39 [The New World Dictionary, Second College Ed. (1974), defines effectual as "having legal force; valid." Thus, ineffectual, being its opposite, means having no legal force or not valid.] If a dismissal has no legal force or effect, the consequence should be the reinstatement of the dismissed employee and the grant of full back wages thereto, as provided by law -- not the latter only. Limiting the consequence merely to the payment of full back wages has no legal or statutory basis. No provision in the Labor Code or any other law authorizes such limitation of sanction, which Mr. Justice Mendoza advocates.

The majority contends that it is not fair to reinstate the employee, because the employer should not be forced to accommodate an unwanted worker. I believed however that it is not the Court that forces the employer to rehire the worker. By violating the latter’s constitutional right to due process, the former brings this sanction upon itself. Is it unfair to imprison a criminal? No! By violating the law, one brings the penal sanction upon oneself. There is nothing unfair or unusual about this inevitable chain of cause and effect, of crime and punishment, of violation and sanction.

To repeat, due process begins with the employer, not with the labor tribunals. An objective reading of the Bill of Rights clearly shows that the due process protection is not limited to government action alone. The Constitution does not say that the right cannot be claimed against private individuals and entities. Thus, in PNB v. Apalisok, which I cited earlier, this Court voided the proceedings conducted by petitioner bank because of its failure to observe Apalisok's right to due process.

Truly, justice is dispensed not just by the courts and quasi-judicial bodies like public respondent here. The administration of justice begins with each of us, in our everyday dealings with one another and, as in this case, in the employer’s affording their employees the right to be heard. If we, as a people and as individuals, cannot or will not deign to act with justice and render unto everyone his or her due in little, everyday things, can we honestly hope and seriously expect to do so when monumental, life-or-death issues are at stake? Unless each one is committed to a faithful observance of day-to-day fundamental rights, our ideal of a just society can never be approximated, not to say attained.

In the final analysis, what is involved here is not simply the amount of monetary award, whether insignificant or substantial; whether termed indemnity, penalty or "full back wages." Neither is it merely a matter of respect for workers’ rights or adequate protection of labor. The bottom line is really the constitutionally granted right to due process. And due process is the very essence of justice itself. Where the rule of law is the bedrock of our free society, justice is its very lifeblood. Denial of due process is thus no less than a denial of justice itself.

One last point. Justice Vitug argues in his Separate Opinion that the nonobservance of the prescribed notices "can verily entitle the employee to an award of damages but x x x not to the extent of rendering outrightly illegal that dismissal or lay-off x x x." I, of course, disagree with him insofar as he denies the illegality of the dismissal, because as I already explained, a termination without due process is unconstitutional and illegal. But I do agree that, where the employee proves the presence of facts showing liability for damages (moral, exemplary, etc.) as provided under the Civil Code, the employee could be entitled to such award in addition to reinstatement and back wages. For instance, where the illegal dismissal has caused the employee "physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury" due to the bad faith of the employer, an award for moral damages would be proper, in addition to reinstatement and back wages.

To conclude, I believe that even if there may be a just or an authorized cause for termination but due process is absent, the dismissal proceedings must be declared null and void. The dismissal should still be branded as illegal. Consequently, the employee must be reinstated and given full back wages.

On the other hand, there is an exception. The employer can adequately prove that under the peculiar circumstances of the case, there was no opportunity to comply with due process requirements; or doing so would have been impractical or gravely adverse to the employer, as when the employee is caught in flagrante delicto. Under any of these circumstances, the dismissal will not be illegal and no award may properly be granted. Nevertheless, as a measure of compassion, the employee may be given a nominal sum depending on the circumstances, pursuant to Article 2221 of the Civil Code.

Depending on the facts of each case, damages as provided under applicable articles of the Civil Code may additionally be awarded.

WHEREFORE, I vote to GRANT the petition. Ruben Serrano should be REINSTATED and PAID FULL BACK WAGES, from date of termination until actual reinstatement, plus all benefits he would have received as if he were never dismissed.