GOLD CITY INTEGRATED PORT SERVICES, INC. (INPORT), PETITIONER, VS. THE HONORABLE NATIONAL LABOR RELATIONS COMMIS­SION (NLRC) AND JOSE L. BACALSO, RESPONDENTS.

Private respondent Jose Bacalso was
employed as an admeasurer by the petitioner Gold City
Integrated Port Services, Inc.
(“Gold City”).  He was suspected by management of undermeasuring cargo. 
Hence, on 23 January 1987, the cargo control
officer ordered two (2) other admeasurers to
re-measure three (3) pallets of bananas which had already been measured by
private respondent.^[1]
The re-measurement revealed that respondent had under-measured the bananas by 1.427 cubic meters.^[2]

Private respondent felt insulted by the re-measurement and so the
next day he went to the office of the Chief Admeasurer,
Rolando Guangco, and there confronted Nigel Mabalacad, one of the two (2) admeasurers
who had re-checked his work, regarding the matter.  Private respondent quarreled with Mabalacad in the presence of Guangco,
their immediate superior, inside the latter’s office.  Guangco directed
private respondent to stop provoking Mabalacad and
told both that being in his office, they should behave properly.  Private respondent ignored this oral
directive and a fistfight erupted then and there between him and Mabalacad.  Both were
eventually pacified by their co-workers.^[3]

Private respondent Bacalso was then
charged with assaulting a
co-employee and falsifying reports and records of the company relative to
the performance of his duties, and was preventively
suspended pending investigation of his case by the union-management grievance
committee.^[4]
In a letter dated 20 March 1987,
the grievance committee referred the disposition of the matter to management in
view of the objections of the aggrieved parties to the proposal that private
respondent be meted out a
penalty of forty-five (45) days suspension.^[5]
Apparently, Guangco and Mabalacad
did not consider suspension an adequate
sanction considering private respondent’s alleged inability to get along with
the other admeasurers and with the company’s customers. 
On 11 April 1987,
private respondent received a notice of termination of services upon the grounds of assaulting a co-employee and of insubordination.^[6]

Private respondent Bacalso filed a
complaint for illegal dismissal with the
Regional Arbitration Branch No. 10 of the Department of Labor and
Employment on 25 May 1987.  He controverted the
finding of insubordination, contending that there was no evidence he had wilfully disobeyed any order given by his
superior during the incident.  He
admitted assaulting his co-employee but claimed that that did not
constitute just cause for his dismissal under Article 282 (d) of the Labor Code because that act was
not an offense committed against
his employer’s duly authorized representative. 
He prayed for reinstatement with backwages and
damages.^[7]

Petitioner Gold
City in its answer argued that Bacalso’s failure to heed Guangco’s
order to stop provoking Mabalacad constituted
insubordination or disrespect towards a superior officer punishable by
dismissal under the Schedule of disciplinary sanctions and norms of conduct, incorporated in the existing Collective Bargaining Agreement
(“CBA”) with the union.^[8]

The Labor Arbiter rendered an award in favor of private
respondent Bacalso holding that the dismissal was
illegal because there was no evidence to support the charge of insubordination,
and that assault on a co-employee was punishable only with fifteen (15) days suspension under the CBA’s
Schedule of penalties.  In view of the
strained relations between the parties, however, the Labor Arbiter did not
order reinstatement and awarded Bacalso separation
pay and attorney’s fees instead.^[9]

Both parties appealed to the National Labor Relations Commission
(“NLRC”).

The NLRC, in a decision dated 30 August 1988, held that only Bacalso’s
appeal was meritorious.  It declined to characterize the assailed
conduct of Bacalso as insubordination under Article
282 (a) of the Labor Code because Guangco’s order was
“not connected with” Bacalso’s work, and
did not amount to wilful or gross disrespect.  The NLRC modified the Labor Arbiter’s
decision by ordering private respondent Bacalso’s
reinstatement with backwages.^[10]

Petitioner, having moved for reconsideration without success, is
before this Court on certiorari. 
On 20 February 1989,
the Court issued a temporary
restraining order enjoining execution of the NLRC’s
decision pending resolution of this Petition, effective upon petitioner’s
posting of a cash or surety bond in the amount of P60,000.00.^[11]
Petitioner Gold
City posted a
cash deposit in the required amount.^[12]

In its Petition, Gold City
emphasizes management’s prerogative to promulgate rules of discipline and to
enforce the Schedule of disciplinary sanctions providing for dismissal of an
employee who commits gross disrespect of a superior officer.^[13]

In his Comment on the Petition, private respondent Bacalso alleged that he was apprised of the charge of
insubordination only in his notice of termination, and that he was thereby
denied an opportunity to be heard on this charge before being dismissed, in
violation of Sections 2 and 5 of Rule 14 of the Omnibus Rules Implementing the
Labor Code.^[14]

Two (2) issues are posed for resolution in this case:  (a) whether private respondent was denied due
process in the course of his dismissal; and (b) whether private respondent was
dismissed for a just cause.

In respect of the first issue, it must be noted that petitioner did not properly inform private
respondent of all the infractions of company regulations which subsequently
became the justification for his dismissal. 
After being preventively suspended, he was charged with assaulting a
co-employee and falsifying reports and records of the company relating to the performance of his duties.  Consequently, throughout the investigation
conducted at the company level, private respondent’s explanations in defense
were shaped to meet only those charges. 
Petitioner discovered it could not sustain the charge of falsification of company records against private
respondent.  Since assault upon a
co-employee, the charge admitted by private respondent, is punishable only with
fifteen (15) days suspension under the CBA’s Schedule
of penalties, it in effect became necessary for petitioner to characterize said assault as an act
of “insubordination or
disrespect towards a superior officer”, an offense punishable with dismissal
under the Schedule.^[15]
So it came to pass that when
private respondent received his notice of termination, the causes therefor were stated as assault on a co-employee and insubordination.

The Court considers that there was here at least a partial deprivation of private respondent’s
right to procedural due process.  He
could not be expected adequately to defend himself as he was not fully or correctly informed of the charges against
him which management intended to prove. 
It is less than fair for management to charge an employee with one
offense and then to dismiss him for having committed another offense with which
he had not been charged and against which he was therefore unable adequately to defend himself.  Correct specification of private respondent’s
alleged wrongdoing was obviously important here, since the penalty that could
appropriately be meted out
depended upon what offense was
charged and proven.  It has been stressed
by the Court that the right of an employee to procedural due process consists
of the twin rights of notice and hearing.^[16] The purpose of the requirement of notice is obviously to enable the
employee to defend himself against the charge preferred against him by
presenting and substantiating his version of the facts.  Since Gold
City here in effect charged private
respondent with a second offense other than falsification of company records,
it was incumbent upon petitioner employer to have given private respondent
additional time and opportunity to meet the new charge against him of
insubordination.  Gold
City failed to do that here. 
In so failing, Gold City
failed to accord to private respondent the full measure of his right to
procedural due process.  The fact that in
the proceedings before the Labor
Arbiter the conduct of private respondent that petitioner regarded as
insubordination was substan­tiated,
does not militate against this conclusion.

Coming to the second issue, Article 282 of the Labor Code
provides in part:

“Art. 282.  Termination
by Employer.  –An employer may terminate an employment for any of the following causes:  a) Serious misconduct or wilful
disobedience by the employee of the lawful orders of his
employer or representative in connection with his work.

x x x                                         x
x x                                         x
x x“

(Underscoring supplied)

Wilful
disobedience of the employer’s lawful orders, as a just cause for the dismissal
of an employee, envisages the concurrence of at least two (2) requisites:  the employee’s assailed conduct must have
been wilful or intentional, the wilfulness
being characterized by a “wrongful and perverse attitude”; and the
order violated must have been reasonable, lawful, made known to the employee
and must pertain to the duties which he had been engaged to discharge.^[17] Both requisites are present in the
instant case.

By private respondent Bacalso’s own
admission, he felt insulted by the re–measurement of the cargo he had already
measured.  He was apparently much
offended by the implication he perceived that management was uncertain either
about his honesty or his competence or possibly both.  He determined to lose his temper, became very
angry and picked a fight with one of the co-workers who had been instructed by
their common superior to carry out the re-measurement of private respondent’s
pallets of bananas.  In the process,
private respondent Bacalso completely disregarded the
courtesy and respect due from a subordinate to his superior.  Indeed, he may have been, consciously or otherwise, precisely sending a
signal to his superior officer in whose presence he provoked and then engaged
in physical violence with his co-worker. 
Prior to the fistfight, Guangco had warned Bacalso to desist from further provoking his co-worker with
insulting language.  This warning
constituted an order from private respondent’s
immediate superior not to breach the peace and order of the Surveyors’ (Admeasurers‘) Division; Guangco
was obviously attempting to maintain
basic employee discipline in the workplace.

It is thus not easy to understand how public respondent NLRC
could have reasonably concluded that Guangco’s order
and warning were “not connected” with private respondent’s work.  We believe and so hold that private respondent’s act constituted wilful disobedience to a lawful order of petitioner’s
representative obviously connected with private respondent’s work.

It does not follow, however, that private respondent Bacalso’s services were lawfully terminated either under
Article 282 (a) of the Labor Code or under the CBA Schedule of penalties.  We believe that not every case of
insubordination or wilful disobedience by an employee of a
lawful work-connected order of the employer or its representative is reasonably penalized with
dismissal.  For one thing, Article 282
(a) refers to “serious misconduct
or willful disobedience —“.  There
must be reasonable proportionality between, on the one hand, the wilful disobedience by the employee and, on the other hand,
the penalty imposed therefor.  Examination of the circumstances surrounding
private respondent’s assault upon his co-employee shows that no serious or substantial danger had been posed by
that fistfight to the well-being of his other co-employees or of the general public doing business with
petitioner employer; and neither did such behavior threaten substantial
prejudice for the business of his employer. 
The fistfight occurred inside the offices of the Surveyors’ Division
more particularly, Mr. Guangco’s office, away from the view of petitioner’s
customers or of the general public.  In Lausa v. National Labor Relations Commission,^[18]
petitioner Lausa exhibited disorderly and pugnacious
behavior in the course of an argument with his immediate superior, in the
presence of passengers and other crewmen on
board the inter-island vessel of which Lausa was a crewmember.  In that case, the Court sustained the dismissal of petitioner Reynaldo Lausa considering that his “behavior could easily have
provoked or triggered off a brawl and mindless panic on board the vessel, and
endangered the safety of people and crewmembers, and under certain conditions,
the safety of the vessel itself”. 
In Wenphil Corporation v. National
Labor Relations Commission,^[19]
the Court also sustained the dismissal of private respondent Roberto Mallare who, while tending the salad bar of a fast food
restaurant, engaged in an alterca­tion a co-worker slapping the latter on the
head, stepping on his foot, brandishing an ice scooper against him and refusing to be pacified, right in
front and in plain sight of customers dining in the restaurant, thus posing a
substantial threat of disorder in the restaurant.  In the instant case, private respondent Bacalso’s disorderly behavior did not present a comparable
threat to the safety or peace of
mind of his co-workers or that of the customers of Gold
City.

Considering that private respondent Bacalso’s
unruly temper did not become an effective
threat to his co-workers or the safety of the customers dealing with his
employer, or to the goodwill of his employer, and considering further that he
had been quite candid in admitting
that he had been at fault as soon as the investigation began in the company
level, we agree with the NLRC that termination of his services was a
disproportionately heavy penalty.  We
believe that suspension without pay for
three (3) months would be an adequate penalty for the assault on a co-worker and act of insubordination that
private respondent Bacalso actually committed.

It follows that private respondent Bacalso
is entitled to reinstatement.^[20]
Should reinstatement to his previous position not be feasible because of his
relationship or lack of relationship with his fellow admeasurers,
he should be reinstated to a substantially equivalent position in another
division of the company.  If that is not
possible or feasible either, then in lieu of such reinstatement, petitioner shall pay private respondent
separation pay equivalent to one-month’s pay for every year of service.^[21]
Private respondent is also entitled to his backwages;
however, an amount equivalent to his three (3) months pay shall be deducted from such backwages.
 The award of attorney’s fees stays.

WHEREFORE, the Petition for Certiorari is hereby DISMISSED for lack of merit, and the Decision dated 30 August
1988 of public respondent NLRC is hereby AFFIRMED with the modifications
that:  (1) from private respondent’s backwages, there shall be deducted an amount equivalent to
his three-month’s pay corresponding to the penalty properly imposable upon him; and (2) should reinstatement to private respondent Bacalso’s former position, or
to a substantially equivalent position in another division of petitioner Gold
City, not be feasible, petitioner shall
pay private respondent Bacalso, in lieu of
such reinstatement, separa­tion pay equivalent to one-month’s pay for every year of service.  The temporary restraining order dated 20 February 1989 is hereby
LIFTED.  No pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr., Bidin, and Cortes, JJ., concur.

Fernan, C.J., (Chairman), on leave.

^[1]
Report from Chief Admeasurer Rolando
I. Guangco, Rollo, p. 113.

^[2]
Report Regarding Admeasurer Jose Bacalso, Rollo, p. 116.

^[3]
Decision, Rollo, pp. 21,
23-24 and 26.

^[4]
Id., p. 21.

^[5]
Letter of the Macajalar Labor Union-Federation of Free Workers (MLU-FFW)
Grievance Committee to the Personnel Manager,
Rollo, p. 121.

^[6]
Decision, Rollo, p. 21.

^[7]
Id., pp. 21-22.

^[8]
Id., p. 23.

^[9]
Id., pp. 23-25.

^[10]
Id., pp. 26-28.

^[11]
Rollo, pp. 72-74.

^[12]
Id., pp. 81 and 100.

^[13]
Petition, Rollo, pp. 8-10.

^[14]
Comment, Rollo, p. 51.

^[15]
Rollo, p.
128.

^[16]
Century Textile Mills, Inc. v. National Labor
Relations Commission, 161 SCRA 528 (1988).

^[17]
Batangas
Laguna Tayabas Bus Company v. Court of Appeals,
71 SCRA 470 (1976).

^[18]
G.R. No. 79731, 9 July 1990.

^[19]
170 SCRA 69 (1989).

^[20]
Mary Johnston Hospital v. National Labor Relations Commission, 165 SCRA 110
(1988).

^[21]
Quezon
Electric Cooperative v. National Labor Relations Commission, 172 SCRA 88
(1989).