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While
on our way back to Tagbilaran from Bacolod last Sunday afternoon,
we catched Board Member Amalia R. Tirol and husband, former
Gov. David B. Tirol at the Cebu pier. Later on, Board Member
Roygie Jumamoy and daughter, Inabanga Councilor Jaja Jumamoy,
joined our table.
The
second district board members discussed several issues in
the Sangguniang Panlalawigan of Bohol. For Tirol, she brought
up her being the most senior board member having obtained
the highest percentage of votes without becoming the majority
floorleader.
For
Jumamoy, one of her concerns is about her successor in the
League of Municipalities (LMP) which seemed to be getting
complicated every day.
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Since
law school, we have been indoctrinated with the so-called
Wenphil doctrine in labor law. Prior to 1989, the rule was
that a dismissal or termination of an employee is illegal
if the employee was not given any notice.
In
the 1989 case of Wenphil Corp. v. National Labor Relations
Commission, (170 SCRA 69), the Supreme Court reversed this
long-standing rule and held that the dismissed employee, although
not given any notice and hearing, was not entitled to reinstatement
and backwages because the dismissal was for grave misconduct
and insubordination, a just ground for termination under Article
282 of the Labor Code, as amended.
The
High Tribunal in this case pointed out that: "Under the
circumstances, the dismissal of the private respondent for
just cause should be maintained. He has no right to return
to his former employment. However, the petitioner must nevertheless
be held to account for failure to extend to private respondent
his right to an investigation before causing his dismissal.
The rule is explicit as above discussed. The dismissal of
an employee must be for just or authorized cause and after
due process. Petitioner committed an infraction of the second
requirement. Thus, it must be imposed a sanction for its failure
to give a formal notice and conduct an investigation as required
by law before dismissing petitioner from employment. Considering
the circumstances of this case petitioner must indemnify the
private respondent the amount of P1,000.00.
The
measure of this award depends on the facts of each case and
the gravity of the omission committed by the employer.
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The
rule thus evolved: where the employer had a valid reason to
dismiss an employee but did not follow the due process requirement,
the dismissal may be upheld but the employer will be penalized
to pay an indemnity to the employee.
This
became known as the Wenphil Doctrtine or the Belated Due Process
Rule.
But
later, in Serrano v. National Labor Relations Commission,
G.R. No. 117040, (323 SCRA 445) decided on Jan. 27, 2000m,
the Supreme Court re-examined this doctrinal principle and
changed the rule on the extent of the sanction.
It
held that the violation by the employer of the notice requirement
in termination for just or authorized causes was not a denial
of due process that will nullify the termination. However,
the dismissal is ineffectual and the employer must pay full
backwages from the time of termination until it is judicially
declared that the dismissal was for a just or authorized cause.
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The
rationale for the re-examination of the Wenphil doctrine in
Serrano was the significant number of cases involving dismissals
without requisite notices.
The
Supreme Court concluded that the imposition of penalty by
way of damages for violation of the notice requirement was
not serving as a deterrent. Hence, it was required that payment
of full backwages from the time of dismissal until the time
the Court finds the dismissal was for a just or authorized
cause.
The
Serrano ruling, according to the High Court, was confronting
the practice of employers to "dismiss now and pay later"
by imposing full backwages. It said that the ruling in Serrano
did not consider the full meaning of Article 279 of the Labor
Code.
This
means that the termination is illegal only if it is not for
any of the justified or authorized causes provided by law.
Payment of backwages and other benefits, including reinstatement,
is justified only if the employee was unjustly dismissed.
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In
the most recent case of Agabon vs. NLRC, decided by the Supreme
Court on Nov. 17, 2004, the Supreme Court ruled that in cases
involving dismissals for cause but without observance of the
twin requirements of notice and hearing, the better rule is
to abandon the Serrano doctrine and to follow Wenphil by holding
that the dismissal was for just cause but imposing sanctions
on the employer.
Such
sanctions, however, must be stiffer than that imposed in Wenphil.
It further ruled that by doing so, it would be able to achieve
a fair result by dispensing justice not just to employees,
but to employers as well.
It
pointed out that "he unfairness of declaring illegal
or ineffectual dismissals for valid or authorized causes but
not complying with statutory due process may have far-reaching
consequences."
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