MANGGAGAWA NG KOMUNIKASYON SA PILIPINAS AND ANTONIO L. CRUZ, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION (1ST DIVISION) AND PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, …

Petitioner Antonio L. Cruz had been an employee of respondent
Philippine Long Distance Telephone Company (PLDT) for sixteen (16) years (since
1971) at the time his employment was terminated. He was an Installer/Repairman II tasked to install and repair
subscribers’ stations.

Sometime in August 1985, petitioner and co-repairman Roberto
Moldera were specifically instructed by their supervisor to undertake a routine
job of repairing old and sub-standard installations located at compound No. 325
Acacia Lane, Mandaluyong, Metro Manila. Upon completion of the work, it was reported for inspection. Respondent PLDT claims, as stated in the now
assailed NLRC decision, that in the course of a periodic inspection of
telephones along Mandaluyong, Metro Manila, conducted by the Quality Control
and Inspection Department (QCID), it was discovered that telephone nos.
79-15-43 and 79-69-52 which, according to company records, were installed at
No. 325 Acacia Lane, Mandaluyong, were actually installed and functioning in
the office of a Mr. Peter Gochiaco located at No. 323 Acacia Lane, Mandaluyong,
Metro Manila. This “out-move” of
the telephones was considered illegal by the company, there being no service
order issued by it for such “out-move”.

When investigated by the company’s QCID, Peter Gochiaco in whose
office the telephone numbers were found installed, declared under oath before
QCID investigator Leopoldo Babelin that it was petitioner Cruz who effected the
transfer of the telephones to his office at 323 Acacia Lane, for which service
he was charged P1,600.00 by Cruz. Gochiaco further declared that Cruz originally asked for P2,000.00 but
he was able to convince Cruz to reduce the amount to P1,600.00.

On 1 September 1986, petitioner Cruz received an inter-­office
memorandum from PLDT’s Quality Control to explain the illegal transfer of the
afore-mentioned telephones. His answer,
a letter reply on 3 September 1986, invoked the right to remain silent until he
shall have received a memorandum from his manager to whom he would explain his
side of the matter.^[1]

When again asked to explain thru a memorandum on 3 November 1986,
petitioner in a written explanation dated 17 March 1987 denied the illegality
of the “out-move” or transfer of the subject telephones, as he had
merely effected routinary work in compliance with a lawful order; that both
telephones were in the same compound; that there was no monetary consideration involved; and that, furthermore, on
1 September 1986, telephone no. 79-69-52 was re-connected.

On 24 March 1987, petitioner Cruz received a letter from his
Manager, Edgardo Esteban, terminating his services effective 1 April 1987. PLDT claimed that the act of Cruz
constitutes fraud and serious misconduct which are statutory grounds for
dismissal under Art. 283 of the Labor Code, since no service order had been
issued for the “out-move” of the telephones.

Petitioner Cruz then filed a complaint for illegal dismissal
before the Labor Arbiter. Respondent
PLDT filed a motion to remand
the case to the grievance machinery under the collective bargaining agreement,
for further proceedings. Finding merit
in the motion, despite petitioners’ objection, an order dated 10 September 1987
remanded the case. However, since no
agreement was reached in the grievance machinery, proceedings continued before
the Labor Arbiter.

Finding no fraud or serious misconduct in the performance of
duties, Labor Arbiter Emerson C. Tumanon ordered the reinstatement of Cruz to
his former position with full backwages and other benefits without loss of
seniority rights.^[2]

PLDT appealed to the NLRC, the first division of which on 9
August 1989 reversed the Labor Arbiter’s decision but allowed separation pay of
one-half (1/2) month salary for every year of service. Quantified, this would amount to about
P33,000.00.

Petitioner Cruz filed a motion for reconsideration, pleading for
a re-examination of the evidence presented, as there were discrepancies
therein, and he emphasized that there was lack of due process in his dismissal
since the affidavit of the complainant, Mr. Gochiaco, was never shown to him
and the PLDT legal department did not conduct a formal investigation, which is
the usual practice.

A minute resolution of 20 October 1989 denied the motion for
reconsideration; hence, the present recourse with two (2) interlocking issues:

1. Did PLDT sufficiently establish the basis for the dismissal?

2. Were the twin requirements of notice and hearing which are
essential elements of due process in cases of employee’s dismissal
substantially observed?^[3]

Sections 1, 2, 5 and 6 of Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code lay down the procedure in cases of termination of
employment as follows:

“Section 1. Security
of Tenure and due process. No worker
shall be dismissed except for a just or authorized cause provided by law and
after due process.

“Section 2. Notice of
dismissal. Any employer who seeks to
dismiss a worker shall furnish him a written notice stating the particular acts
or omission constituting the grounds for his dismissal. In cases of abandonment of work, the notice
shall be served at the worker’s last known address.

x        x         x

“Section 5. Answer and
Hearing. The worker may answer the
allegations stated against him in the notice of dismissal within a reasonable period from receipt of such
notice. The employer shall afford the
worker ample opportunity to be heard and to defend himself with the assistance
of his representative if he so desires.

“Section 6. Decision
to dismiss. The employer shall
immediately notify a worker in writing of a decision to dismiss him stating
clearly the reasons therefor.”^[4]

In the aforecited Vera case, it is emphasized:

“x x x this court has repeatedly held that the employer is
mandated to furnish the employee sought to be dismissed two notices, the
written charge, and the notice of dismissal, if, after hearing dismissal is
indeed warranted ….”^[5]

As stated in the NLRC decision, the dismissal of petitioner Cruz
was effected in this manner:

“x x x, complainant (Cruz) was invited to appear before the
QCID to shed light on the matter but he answered on September 3, 1986 that ‘I
wish to state that I am invoking my right to remain silent. Instead, I will just wait for any memorandum
from my Manager regarding the same, in which case I will be giving my
explanations to him on the matter,’ Annex ‘3’, p. 45, rollo.

“On November 3, 1986, Edgardo Esteban, respondent’s Greenhills
Exchange Manager sent a letter to the complainant, Annex ‘4’, p. 49, rollo, informing
him that a QCID investigation disclosed that he committed serious misconduct
when he effected an unauthorized out-move of telephone nos. 79-15-43 and
79-69-52 from 325 to 323 Acacia Lane, Mandaluyong for a consideration of
P1,600.00. The letter further states
that this violation of company regulations is punishable with dismissal from
the service. He was given 72 hours from
receipt of the letter to explain in writing why he should not be dismissed for
said act. He was also afforded the
right ‘to be heard if you so desire.’ He was warned that if no explanation was
received within the period of 72 hours, the case will be decided on the basis
of the evidence on hand.

“On November 17, 1986, complainant submitted his written
explanation, Annex ‘5’, p. 47, rollo, denying the charge particularly the money
consideration. He said he merely
rerouted the wires to a new pole provided by the subscriber with its conduits.

“On March 24, 1987, respondent addressed a letter to
complainant, Annex ‘6’, p. 48, rollo, informing him that after a thorough
evaluation of his case, it was evident that he had violated the company’s rule
on serious misconduct in office, the penalty of which is (sic) dismissal and
his services were terminated effective April 1, 1987.”^[6]

The procedure prior
to dismissal of an employee need not be observed to the letter, but it must at
least follow the natural sequence of notice, hearing and judgment. (Ruffy
v. NLRC)^[7]

Summarizing the sequence of events in this case:^[8]

1. inter-office memorandum to petitioner Cruz dated 1 September
1986 – invitation to appear before QCID to shed light on the incident;

2. petitioner Cruz answered on 3 September 1986 invoking the right
to remain silent and that he would wait for the memorandum of his manager
before explaining.

3. inter-office memorandum letter informing Cruz of his serious
misconduct which is punishable with dismissal, gave him 72 hours within which
to explain in writing and elect to be heard if he so desired.

4. on 17 November 1986, Cruz submitted his written explanation.

5. 24 March 1987 letter – terminated employment of petitioner
Cruz, effective 1 April 1987.

What the law requires, as held in De Leon v. NLRC,^[9]
cited by petitioners, is for the employer to inform the employee of the
specific charges against him and to hear his side or defenses. This does not however mean a full adver­sarial
proceeding. Litigants may be heard
thru: (1) pleadings, written
explanations, position papers, memo­randum; (2) oral arguments. In both instances, the employer plays an
active role – he must provide the employee the opportunity to present his side
and answer the charges, in substantial compliance with due process. Actual adversarial proceeding becomes
necessary only for clarification or when there is a need to propound searching
questions to unclear witnesses. This is
a procedural right which the employee must, however, ask for it is not an
inherent right, and summary proceedings may be conducted. This is to correct the common but mistaken
perception that procedural due process entails lengthy oral arguments. Hearings in administrative proceedings and
before quasi-judicial agencies are neither oratorical contests nor debating
skirmishes where cross examination skills are displayed. Non-verbal devices such as written
explanations, affidavits, position papers or other pleadings can establish just
as clearly and concisely aggrieved parties’ predicament or defense. What is essential is ample opportunity to be
heard, meaning, every kind of assistance that management must accord the
employee to prepare adequately for his defense (see Ruffy supra).

Petitioner was given this opportunity. First, he invoked the right to remain silent; then he submitted a
written explanation.

NLRC decisions are brought to this Court by way of special civil
action for certiorari under Rule 65 of the Rules of Court. A questioned judgment will be annulled or
modified if the rendering tribunal, board or office has acted without or in
excess of its jurisdiction or with grave abuse of discretion and there is no
appeal, nor any plain, speedy, and adequate remedy in the ordinary course of
law.

This Court, in a special civil action for certiorari, will
not review facts as found by the respondent adminis­trative or quasi-judicial
body, unless they are wildly distorted, or when two (2) administrative bodies
have irreconciliable differences in their factual findings. The accepted practice or general rule is to
accord due respect to findings of fact of administrative agencies.

The NLRC cannot, in the case at bar, be faulted for reversing the
Labor Arbiter. PLDT complied with
procedural due process prior to the termination of petitioner’s employment for
a serious violation of company rules involving what can be considered fraud and
dishonesty. His dismissal has to be
sustained.

However, in lieu of separation pay equal to one-half month salary
for every year of service or approximately P33,000.00 awarded by the NLRC to
petitioner Cruz, a financial assistance of P10,000.00 only is awarded to Cruz.

To obviate confusion with the decision in a previous case (PLDT
vs. NLRC & Marilyn Abucay, G.R. No. L-80609, 23 August 1988) which ruled
out awards of separation pay when the worker’s dismissal is due to dishonesty,
it must be pointed out that in the Abucay case, the dismissed employee was a
PLDT traffic operator for ten (10) years who impliedly admitted that
she received P3,800.00 in consideration of her promise to facilitate approval
of application for telephone installation, an amount which she should not have
collected or received. Both the Labor
Arbiter and the NLRC unequivocally arrived at the conclusion that said employee
should be dismissed although with financial assistance. The award of financial assistance was
questioned by PLDT (not by the employee, as in the present case) before the
Supreme Court.

In the present case, there was never an admission from petitioner
Cruz that he solicited/received money from complainant/phone subscriber Mr.
Gochiaco. There is thus some doubt as
to petitioner’s culpability; in fact he claims he was not shown complainant’s
affidavit implicating him and that the PLDT legal department did not conduct
the usual formal investigation. The
Labor Arbiter found him innocent, the NLRC found him guilty. There is a question on the certainty of
dishonesty. In criminal law, this could
be reasonable doubt. We are, however,
dealing here with a quasi-judicial body where substantial evidence suffices and
whose factual findings are binding on the Supreme Court absent showing of grave
abuse of discretion.

It is also significant that both labor arbiter and the NLRC
concur in awarding Cruz monetary assistance, i.e., the arbiter, in the form of
backwages, the NLRC, in the form of separation pay of one-half (1/2) month pay
per year of service. PLDT did
not question the award of
financial assistance by the
NLRC in the form of separation pay. It was, in other words, willing to pay separation pay had not the
employee elevated the case to this Court for review of his dismissal from employment,
but with separation pay. Furthermore,
Cruz served PLDT for sixteen (16) years without adverse record; the subject
telephone line was eventually legalized and re-connected without damage to the
company and, in fact, the questioned telephone remained transferred from #325
to 323 Acacia Lane both in the same compound. Unlike in the Abucay case where the employee performed an act
completely unrelated to her duties as traffic operator and demanded money from
a would-be subscriber, herein petitioner was in fact instructed to repair old
and substandard installations. He
however, transgressed company rules by effecting an “out-move” of
telephones without a company service order. Although dishonesty is a vice or propensity hardly susceptible of gradation,
the award of financial assistance to Cruz in the amount of P10,000.00 only for
his sixteen (16) years of service is not a condonation of his act which was
clearly violative of company rules, but anchored on equitable considerations.

WHEREFORE, the decision appealed from is AFFIRMED, with
the sole modification that instead of separation pay, petitioner Cruz shall be
given by respondent PLDT a financial assistance of P10,000.00 only.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Regalado, and Nocon, JJ.,
concur.

^[1]
Rollo at 61

^[2]
Decision of 31 August 1988, Rollo at 28

^[3]
Norman de Vera v. NLRC and BPI, G.R. No. 93070, August 9, 1991

^[4]
Ibid., p. 7-8

^[5]
Ibid., p. 11

^[6]
Rollo at 32 and 33.

^[7]
G.R. No. 84193, February 15, 1990, 182 SCRA 365.

^[8]
Rollo at 60, 61, 62, 21 and 63.

^[9]
G.R. No. L-52056, October 30, 1980, 100 SCRA 691