COMMANDO SECURITY AGENCY, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND NEMESIO DECIERDO, RESPONDENTS.

Petitioner assails the resolutions of the National Labor Relations
Commission dated May 26, 1989 and September 25, 1990, affirming with
modification the decision of the Labor Arbiter in NLRC Case No. 11­-0200075-88.

Private respondent Nemesio Decierdo was a security guard of the
petitioner since February 1981. In
April 1987, petitioner entered into a contract to provide guarding services to
the Alsons Development and Investment Corporation (ALSONS for brevity) at its
Aldevinco Building on Claro M. Recto Avenue, Davao City, for a period of one
year, i.e., from April 11, 1987 to April 10, 1988, unless renewed under such
terms and conditions as may be mutually acceptable. The number of guards to be assigned by the petitioner would
depend on ALSON’s demand, sometimes two (2) guards on a daily shift, and
sometimes four (4) guards. Decierdo was
one of the guards assigned to the Aldevinco Building by the petitioner.

On February 9, 1988, Maria Mila D. Samonte, Properties
Administration Head of ALSONS, requested the petitioner for a “periodic
reshuffling” of guards. The
pertinent portion of her letter reads:

“Our corporation offers spaces to tenants including services
of maintenance and security. The latter
causes us to hire your agency’s services. It is therefore clearly understood that Aldevinco assures tenants of security
of their properties found in Aldevinco’s compound, and likewise Commando
Security Service Agency assures Aldevinco the same.

“We hope that the above shall be clearly explained to the
incoming guards, we requested for a period reshuffling. We do
extend our
gratitude to
your immediate
services in
response to
our request
in the past.” (pp. 45-A-46, Rollo.)

Pursuant to that reasonable request of its client, petitioner on
February 10, 1988 served the following recall order on Decierdo:

“Report to this HQs for instruction. You are hereby recalled from your present post at Aldevinco Bldg.
as per Rotation Policy Order by the management effective 11 February
1988.” (p. 46, Rollo.)

On the same date, February 10, 1988, Detail Order 02-016 was
issued to Decierdo assigning him to the Pacific Oil Company in Bunawan, Davao
City, with instruction to report to the manager, but Decierdo refused to accept
the assignment as shown by the annotation at the bottom of the Order, viz:

“Refused to accept assignment he is going to rest for a
while.” (p. 54, Rollo.)

On February 11, 1988, which was the effective date of the detail
order, Decierdo filed a complaint for illegal dismissal, unfair labor practice,
underpayment of wages, overtime pay, night premium, 13th month pay, holiday
pay, rest day pay and incentive leave pay.

On June 28, 1988, the Executive Labor Arbiter rendered a
decision, the dispositive portion of which reads as follows:

“WHEREFORE, in consideration of all the foregoing, judgment is
hereby rendered:

“1. Ordering respondent Commando Security Agency
to pay complainant Nemesio Decierdo the total amount of THIRTY-THREE THOUSAND
EIGHT HUNDRED SEVENTY-SEVEN AND 92/100 PESOS (P33,877.92), as salary, holiday
and rest day pay differentials, 13th month pay differentials and service
incentive leave pay; and

“2. Dismissing the complaint for illegal
dismissal, unfair labor practice, overtime pay and night premium for lack of
merit.” (pp. 19-20, Rollo.)

Petitioner appealed to the NLRC which on May 26, 1989, affirmed
with modification the decision of the Labor Arbiter, to wit:

“WHEREFORE, the appealed Decision is hereby AFFIRMED with the
modification that the amount of P1,498.39 representing complainant’s
accountability with (sic) respondent is hereby ordered deducted from the total
award.” (p. 58, Rollo.)

Hence, this petition for certiorari alleging that the NLRC
gravely abused its discretion:

1. in failing to make a clear pronouncement
that Decierdo had abandoned his employment as he went on AWOL and therefore is
considered resigned;

2. in denying petitioner
due process of law, or a right to be heard;

3. in not considering that
Decierdo is in estoppel; and

4. in not holding that
petitioner is entitled to a 25% share of his monthly salary as agreed between
them.

The petition for certiorari is without merit.

The first ground of the petition is not well taken for the NLRC
did find that Decierdo had given up his job and chose separation pay in lieu of
reinstatement.

“Anent the first issue, suffice it to state that there was no
need for the Executive Labor Arbiter to fix a period within which to require
complainant to report for work considering that the latter is no longer
interested in his job and had claimed for separation benefits in lieu of
reinstatement. Why respondent has
begrudged the Labor Arbiter’s ‘failure’ to fix a return?to-work period
escapes us considering that the Labor Arbiter practically found complainant to
have abandoned his job and, besides, complainant’s claims for separation pay
was not granted. If there was anyone
who should have been interested in being recalled to work, it should have been
complainant himself and not respondent.” (pp. 54-55, Rollo.)

As a result, the NLRC dismissed the charge of illegal dismissal
and unfair labor practice against the petitioner and denied Decierdo’s claim
for separation pay.

Regarding the petitioner’s allegation that it was denied due
process, we have time and again pointed out that procedural due process merely
requires notice and opportunity to be heard (Var Orient Shipping Company vs.
Achacoso, 161 SCRA 732; Bermejo vs. Barrios, 31 SCRA 764) which the petitioner
was given when it filed its position paper. The petitioner was properly notified and even took part in the conciliation
conference for the amicable settlement of the case. It was made aware of the nature and specifics of the charges
against it but failed to refute them expecting that a hearing would be
called. However, the Labor Arbiter
proceeded to decide the case based on the parties’ position papers, the records
submitted by petitioner, and the report and the computations made by the
Corporate Auditing Examiner regarding the sums which Decierdo was entitled to
recover. That procedure complied with
the Revised Rules of the NLRC, particularly Sections 2 and 3, which provide:

“Sec. 2. Submission of
position papers. – During the initial
conference/hearing, or immediately thereafter, the Labor Arbiter shall require
the parties to simultaneously submit to him their respective
verified position
papers, which
shall cover
only the
issues raised
in the
complaint, accompanied by all supporting documents then available to them and
the affidavits of their witnesses which shall take the place of their direct testimony. The parties shall thereafter not be allowed to allege, or present
evidence to prove, facts not referred to and any cause or causes of action not
included in their complaint or position papers, affidavits and other documents. The parties shall furnish each other with
copies of the position papers, together with the supporting affidavits and
documents submitted by them.

“Sec. 3. Determination
of necessity of hearing. – Immediately
after the submission by the parties of their position papers and supporting proofs,
the Labor
Arbiter shall
determine whether
there is
a need for a formal hearing
or investigation. At this state, he may, in his discretion,
and for the purpose of making such determination, elicit pertinent facts or
information, including documentary evidence, if any, from any party or witness
to complete, as far as possible, the facts of the case. Facts or information so elicited may serve
as basis for his clarification or simplication and limitation of the issues in
the case, encouraging for this purpose the submission by the parties of
admissions and stipulations of fact to abbreviate the proceedings. He shall participate actively in the
preparation of such stipulations, making suggestions on what facts the parties
need not prove.” (Underscoring supplied.)

The NLRC correctly held that:

“x x x the Executive Labor Arbiter did not err when she
dispensed with a full blown hearing there being no necessity for one. Under Section 3 of the same rule as
above-cited, the Labor Arbiter may, in his sound discretion, dispense
with a hearing and require, instead, the parties to
file their respective position papers together with all the supporting
proofs. x x x all that respondent had
to do was present its payrolls and other records which it is required to keep
and maintain (see Sec. 6-12, Rule X, Book III of Omnibus Rules Implementing the
Labor Code) and it could already be determined on the face thereof if
complainant’s monetary claims had actually been paid or not. x x x complainant’s entitlements were computed
by the Corporate Auditing Examiner (p. 63, Records) on the basis of
respondent’s records which was secured by virtue of a subpoena duces tecum (p. 43, record). Respondent should have met head-on the
accuracy of correctness of the computations and not skirt the issue by dwelling
merely on technicalities by complaining that the records were irregularly
procured.” (p. 56, Rollo.)

Petitioner’s contention that Decierdo is estopped from
complaining about the 25% deduction from his salary representing petitioner’s
share in procuring job placement for him, is not well taken. That provision of the employment contract
was illegal and inequitous, hence, null and void.

The constitutional provisions on social justice (Sections 9 and
10, Article II) and protection to labor (Sec. 18, Article II) in the
declaration of Principles and State Policies, impose upon the courts the duty
to be ever vigilant in protecting the rights of workers who are placed in a
contractually disadvantaged position and who sign waivers or provisions
contrary to law and public policy (Mercury Drug Co. Inc. vs. Dayao, 117 SCRA
99, 116). We affirm the NLRC’s ruling
that:

“It goes without saying that respondent may not deduct its
so-called ‘share’ from the salaries of its guards without the latter’s express
consent and if such deductions are not allowed by law. This is notwithstanding any previous
agreement or understanding between them. Any such agreement or contract is void ab
initio being contrary to law and public
policy (Mercury Drug Co. vs. Nardo Dayao, G.R. No. 30432, September 30,
1982).” (pp. 57-58, Rollo.)

WHEREFORE, finding no abuse of discretion on the part of
the National Labor Relations Commission in rendering the assailed decision, the
petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.

Cruz, (Chairman), Medialdea, and
Bellosillo, JJ., concur.