“The third reason why the notice requirement under Art.

283 cannot be
considered a requirement of the Due Process Clause is that the employer
cannot really be expected to be entirely an impartial judge of his own cause.
This is also the case in termination of employment for a just cause under Art
282 (i.e., serious misconduct or willful disobedience by the employee of the
lawful orders of the employer, gross and habitual neglect of duties, fraud or
willful breach of trust of the employer, commission of crime against the
employer or the latter’s immediate family or duly authorized representatives,
or other analogous cases). x x x (Id., at 470)

(e) Agabon v. NLRC, En Banc (8-6), Ynares-Santiago, 442 SCRA 573 (2004)
corrected the Serrano ruling but without returning to the Wenphil doctrine.
The court ruled that in cases involving dismissals where there was just cause
but no observance of the twin requirements of notice and hearing, the better
rule is to abandon the Serrano doctrine and to follow the Wenphil doctrine.
That means that the dismissal was for a just cause but the employer was
made to pay a stiffer penalty than the P1,000 imposed by Wenphil. The
employer was made to pay P30,000 each to the complainants, Agabon
spouses.

Four possible situations:

1. There is just/authorized cause + procedural requirements observed =

valid dismissal/termination

2. No just/authorized cause + procedural requirements observed = Illegal

dismissal/termination

3. No just/authorized cause + no procedural requirements observed = Illegal

dismissal/termination

4. There is just/authorized cause + due process not observed = employer is

fined for non-compliance of procedural requirements. (Id., at 608-609)

(f) JAKA Food Processing Corporation v. Pacot, et al., En Banc (11-3),

Garcia, J., 454 SCRA 119 (2005) held that “. . . (2) if the dismissal is based
on an authorized cause under Article 283 but the employer failed to comply
with the notice requirement, the sanction should be stiffer because the
dismissal process was initiated by the employer’s exercise of his management
prerogative (Id., at 125-126).” The employer was ordered to pay the
complainant indemnity of P50,000.
(g) Perez and Doria v. PT&T, et al., 584 SCRA 110 ( April 7, 2009), EN BANC,
Corona, J.

“We note a marked difference in the standards of due process to be followed as

prescribed in the Labor Code and its implementing rules. The Labor Code (Art.
277[b]), on the one hand, provides that an employer must provide the employee
ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires x x x. The omnibus rules implementing the Labor
Code, on the other hand, require a hearing and conference during which the
employee concerned is given the opportunity to respond to the charge, present his
evidence or rebut the evidence presented against him (Id., at 120-121).”

“x x x Therefore, while the phrase “ample opportunity to be heard” may in

fact include an actual hearing, it is not limited to a formal hearing only. In other
words, the existence of an actual, formal “trial-type” hearing, although preferred, is
not absolutely necessary to satisfy the employee’s right to be heard. X x x (Id., at
124).”

“In sum, the following are the guiding principles in connection with the hearing
requirement in dismissal cases:

(a) “ample opportunity to be heard” means any meaningful opportunity

(verbal or written) given to the employee to answer the charges against him and
submit evidence in support of his defense, whether in a hearing, conference or some
other fair, just and reasonable way.

(b) a formal hearing or conference becomes mandatory only when requested

by the employee in writing or substantial evidentiary disputes exist or a company
rule or practice requires it, or when similar circumstances justify it.

(c) the “ample opportunity to be heard” standard in the Labor Code prevails
over the “hearing or conference” requirement in the implementing rules and
regulations (Id., at 127).”

Nota Bene: [It is surprising that the Supreme Court does not quote from a long line
of decisions starting from Rabago v. NLRC, 200 SCRA 158 (1991); Rase v. NLRC,
237 SCRA 523 (1994; Libres v. NLRC, SCRA (1999). Those cases, and many more
thereafter, held that personal confrontation and cross examination cannot be invoked
as a matter of right in procedural due process of employee dismissal cases. In
Manggagawa ng Komunikasyon v. NLRC, 206 SCRA109 (1992), the Supreme
Court , however, conceded that “actual adversarial proceedings may be necessary
for clarification purposes or when there is need to propound searching questions to
unclear witnesses.”]

(h) Nexus between Serrano Ruling and Perez Ruling: Concurring Opinion,
Brion, J.

“Separately from the requirement of due process when State action is involved, the
Constitution also guarantees security of tenure to labor, which the Labor Code
implements by requiring that there be a just or authorized cause before an employer
can terminate the services of a worker. This is the equivalent of and what would have
satisfied substantive due process had a State action been involved. The equivalent of
procedural due process is detailed under Article 277 of the Labor Code, heretofore
quoted, which requires notice and ample opportunity to be heard, both of which are
fleshed out in the Implementing Rules of Book VI and in Rule XXIII of Department
Order No.9, Series of 1997, of the Department of Labor.

Thus, from the concept of due process being a limitation on state action, the concept
has been applied by statute in implementing the guarantee of security of tenure in
the private sector. In Serrano v. NLRC, we had the occasion to draw the fine
distinction between constitutional due process that applies to governmental action,
and the due process requirement imposed by a statute as a limitation on the exercise
of private power. Noting the distinctions between constitutional due process
and the statutory duty imposed by the Labor Code, the Court thus decided
in Agabon v. NLRC to treat the effects of failure to comply differently (Id., at
138}”

(i) The Latest Application of the Perez Ruling:

TECHNOL EIGHT PHILIPPINES CORPORATION v. NLRC AND DENNIS AMULAR, L-

187605, April 13, 2010, 2nd Div., Brion, J.

[The case refers to 2 rank-and-file employees mauling a supervisor outside the workplace, and not
within working hours]

The labor arbiter ruled that Technol failed to afford Amular procedural due process, since he was not
able to present his side regarding the incident; at the time he was called to a hearing, he had already filed
the illegal dismissal
complaint.http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm - _ftn46
The NLRC, on the other hand, held that the memorandum terminating Amular’s employment was a mere
formality, an afterthought designed to evade company liability since Amular had already filed an illegal
dismissal case against
Technol.http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm -
_ftn47

We disagree with these conclusions. The notice of preventive suspension/notice of discharge served
on Amular and Ducay required them to explain within forty-eight (48) hours why no disciplinary action
should be taken against them for their involvement in the mauling
incident.http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm - _ftn48
Amular submitted two written statements: the first received by the company on May 19,
2002http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm - _ftn49 and
the other received on May 20,
2002.http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm - _ftn50 On
June 8, 2002, Technol management sent Amular a memorandum informing him of an administrative
hearing on June 14, 2002 at 10:00 a.m., regarding the charges against
him.http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm - _ftn51 At the
bottom left hand corner of the memorandum, the following notation appears: “accept the copy of notice
but refused to receive, he will study first.” A day before the administrative hearing or on June 13, 2002,
Amular filed the complaint for illegal
suspension/dismissalhttp://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm -
_ftn52 and did not appear at the administrative hearing. On July 4, 2002, the company sent Amular a
notice of dismissal.http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm -
_ftn53

What we see in the records belie Amular’s claim of denial of procedural due process. He chose not
to present his side at the administrative hearing. In fact, he avoided the investigation into the charges
against him by filing his illegal dismissal complaint ahead of the scheduled investigation. Under these
facts, he was given the opportunity to be heard and he cannot now come to us protesting that he was denied
this opportunity. To belabor a point the Court has repeatedly made in employee dismissal cases, the
essence of due process is simply an opportunity to be heard; it is the denial of this opportunity that
constitutes violation of due process of law.

(j) Underlying realities that have influenced the Court in making this paradigmatic shift.

1. So-called “Frictional Unemployment” in

classhttp://sc.judiciary.gov.ph/jurisprudence/2010/april2010/187605.htm - _ftn54ical
economics has now become “Structural Unemployment.” Economists have long admitted that a policy
of full employment is impossible to attain. “Frictional unemployment is inevitable simply because the
economy is always changing.”Example: Movement from earthen pots (colon) to pig-iron caldrons
(caldero) to electric rice cookers to Pyrex specialize cooking and serving ware. The progress from one
product improvement to another always leaves a segment of workers out of work because they are not in
possession of the skill required for the next improved product. But now, labor itself (all of labor) is
condemned to accelerated obsolescence, unless it develops a structural capacity to learn at commensurate
speed with developing technology which now dictates the direction, pace and scope of the economy.
Example: what must architects, engineers, accountants, doctors, lawyers, professors, or even auto or
motorcycle mechanics who are in their 50’s today, have to contend with in terms of ICT (Information
Communication Technology)? Unemployment now is not just the tolerable “friction” of a moving
economy. It is built into the economy, part and parcel of it, and at such significant percentage in proportion
to the pace of technological advancement. [See N. Gregory Mankiw, Principles of Economics (Thomas
Learning, Inc. and Harvard University Press: (2001), p. 588]

2. The nature of WORK has changed. Work can now be broken up, assembled, disassembled, phases of
which can be done in different parts of the world. Work now knows no boundaries, no nationality, no
ethnic loyalty. Work tends to go where the workers have the highest productivity, efficiency and quality.
That work always moves this way around the globe is not an exception, but the rule. That work moves is
not the result of evil intentions of men or women. For, to quote Paul Krugman, “economics is not a
morality play. It’s not a happy story in which virtue is rewarded and vice punished. The market economy is
a system for organizing activity --- a pretty good system most of the time, though not always --- with no
special moral significance. The rich don’t necessarily deserve their wealth, and the poor certainly don’t
deserve their poverty; nonetheless, we accept a system with considerable inequality because systems
without any inequality don’t work. Cuba doesn’t work; Sweden works pretty well.” (The New York
Times, The Conscience of a Liberal, Economics is not a Morality Play, September 28, 2010)

3. “Security of Tenure,” has not found a viable home in any post-industrial economic system. Perhaps,
because neither logic nor rationality recommends it. Consider this: If the fundamental fact of filiation does
not give rise to “Security of Support” for life, demandable against the parents who were responsible for
bringing one into this world, why should the mere transactional fact of an employment contract give rise to
“Security of Tenure” indefinitely. The more viable, rational ideal should be “Security of Employability.”
Governments should so arrange its educational system and training programs that their citizens will have
multiple skills and career options. Citizens should take it as their responsibility to develop multiple career
possibilities, and to adopt “continuous learning” as a permanent posture for life. For Security of Tenure is a
dead ideal of a bygone era. And the only viable stance in 21st century life, if one is to thrive in it, not to
mention survive it, is “Security of Employability!” [Cf. THE WORLD IS FLAT: A BRIEF HISTORY OF
THE TWENTY-FIRST CENTURY (RELEASE 3.0) BY THOMAS FRIEDMAN (original publication
2005)]

(k) Additional Rulings affirming “Paradigmatic Shift”--- Ending of “Award of Financial Assistance”
in the name of Compassionate Justice.

Historical Note: CJ Enrique Fernando initiated what he called compassionate Justice when “the capital
punishment of dismissal is visited upon an employee” Fernando called this Justice “Secundum Caritatem.”

Reno Foods, Inc., v. Nagkakaisang Lakas ng Manggagawa (NLM)—Katipunan on

behalf of its member, Nenita Capor, L-164016, March 15, 2010, 2nd Div., Del Castillo, J.

There is no legal or equitable justification for awarding financial assistance to an employee

who was dismissed for stealing company property. Social justice and equity are not magical
formulas to erase the unjust acts committed by the employee against his employer. While
compassion for the poor is desirable, it is not meant to coddle those who are unworthy of
such consideration.

In fact, in the recent case of Toyota Motors Philippines, Corp. Workers Association (TMPCWA) v. National Labor
Relations Commission(L-158798-99, Oct. 19, 2007, 537 SCRA 171, 219-223)
,http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/164016.htm - _ftn26 we ruled
that separation pay shall not be granted to all employees who are dismissed on any of the four grounds provided
in Article 282 of the Labor Code. Such ruling was reiterated and further explained in Central Philippines Bandag
Retreaders, Inc. v. Diasnes (L-163607, Jul 14, 2008, 558 SCRA 194, at
207):http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/164016.htm - _ftn27

To reiterate our ruling in Toyota, labor adjudicatory officials and the CA must demur
the award of separation pay based on social justice when an employee’s dismissal is based on
serious misconduct or willful disobedience; gross and habitual neglect of duty; fraud or willful
breach of trust; or commission of a crime against the person of the employer or his immediate
family – grounds under Art. 282 of the Labor Code that sanction dismissals of employees. They
must be most judicious and circumspect in awarding separation pay or financial assistance as the
constitutional policy to provide full protection to labor is not meant to be an instrument to oppress
the employers. The commitment of the Court to the cause of labor should not embarrass us from
sustaining the employers when they are right, as here. In fine, we should be more cautious in
awarding financial assistance to the undeserving and those who are unworthy of the liberality of the
law.

Capor was acquitted in Criminal Case No. 207-58-MN based on reasonable doubt. In his Decision, the trial
judge entertained doubts regarding the guilt of Capor because of two circumstances: (1) an ensuing labor dispute
(though it omitted to state the parties involved), and (2) the upcoming retirement of Capor. The trial judge made room
for the possibility that these circumstances could have motivated petitioners to plant evidence against Capor so as to
avoid paying her retirement benefits. The trial court did not categorically rule that the acts imputed to Capor did not
occur. It did not find petitioners’ version of the event as fabricated, baseless, or unreliable. It merely acknowledged
that seeds of doubt have been planted in the juror’s mind which, in a criminal case, is enough to acquit an
accused based on reasonable doubt. The pertinent portion of the trial court’s Decision reads:

During the cross examination of the accused, she was confronted

with a document that must be related to a labor dispute. x x x The Court
noted very clearly from the transcript of stenographic notes that it must have
been submitted to the NLRC. This is indicative of a labor dispute which,
although not claimed directly by the accused, could be one of the reasons
why she insinuated that evidence was planted against her in order to deprive
her of the substantial benefits she will be receiving when she retires from the
company. Incidentally, this document was never included in the written offer
of evidence of the prosecution.

Doubt has, therefore, crept into the mind of the Court concerning the
guilt of accused Nenita Capor which in this jurisdiction is mandated to be
resolved in favor of her innocence.

Pertinent to the foregoing doubt being entertained by this Court, the

Court of Appeals citing People v. Bacus, G.R. No. 60388, November 21,
1991: “the phrase ‘beyond reasonable doubt’ means not a single iota of
doubt remains present in the mind of a reasonable and unprejudiced man
 that a person is guilty of a crime. Where doubt exists, even if only a shred,
the Court must and should set the accused free.” (People v. Felix, CA-G.R.
No. 10871, November 24, 1992)

WHEREFORE, premises considered, judgment is hereby rendered

acquitting accused Nenita Capor of the crime charged against her in this
case on the ground of reasonable doubt, with costs de oficio.

SO
ORDERED.http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/164
016.htm - _ftn17

In Nicolas v. National Labor Relations

Commission,http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/164016.htm -
_ftn18 we held that a criminal conviction is not necessary to find just cause for employment termination. Otherwise
stated, an employee’s acquittal in a criminal case, especially one that is grounded on the existence of reasonable doubt,
will not preclude a determination in a labor case that he is guilty of acts inimical to the employer’s
interests.http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/164016.htm - _ftn19

Criminal cases require proof beyond reasonable doubt while labor disputes require only substantial
evidence, which means such relevant evidence as a reasonable mind might accept as adequate to justify a
conclusion.http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/164016.htm -
_ftn20 The evidence in this case was reviewed by the appellate court and two labor tribunals endowed with
expertise on the matter – the Labor Arbiter and the NLRC. They all found substantial evidence to conclude that Capor
had been validly dismissed for dishonesty or serious misconduct. It is settled that factual findings of quasi-judicial
agencies are generally accorded respect and finality so long as these are supported by substantial evidence. In the
instant case, we find no compelling reason to doubt the common findings of the three reviewing bodies.

Solidbank Corporation v. NLRC, L-165951, March 30, 2010, 3rd Div.,

Peralta, J.

The CA awarded financial assistance to respondents Rodolfo Bombita

et al. out of “compassionate justice” despite the fact that petitioner Solidbank
Corporation had already paid the respondents their separation pay in
accordance with Article 283 of the Labor Code. Proper?

While the CA should not be faulted for sympathizing with the plight of
respondents as they suddenly lost their means of livelihood, this Court holds that it is
precisely because of the sudden loss of employment − one that is beyond the control
of labor − that the law statutorily grants separation pay and dictates how the same
should be computed. Thus, any business establishment that decides to cease its
operations has the burden of complying with the law. This Court should refrain from
adding more than what the law requires, as the same is within the realm of the
legislature.

It bears to stress, however, that petitioner may, as it has done, grant on a

voluntary and ex gratia basis, any amount more than what is required by the law, but
to insist that more financial assistance be given is certainly something that
this Court cannot countenance, as the same serves to penalize petitioner,
which has already given more than what the law requires. Moreover, any
award of additional financial assistance to respondents would put them at an
advantage and in a better position than the rest of their co-employees who similarly
lost their employment because of petitioner’s decision to cease its operations.

Part II Other Causes of Termination Not Found in Book VI of the Labor Code.

1. Section 66 of the Omnibus Election Code: PNOC Energy Dev. Corp. v.

NLRC, 1st Div., Narvassa, C.J., 222 SCRA 231 (May 31, 1993)

ISSUE: whether an employee in a government owned or controlled

corporation without original charter (and therefore not covered by Civil
Service Law) nevertheless falls within the scope of Section 66 of the Omnibus
Election Code.

“Section 66. Candidates holding appointive office or position --- Any person
holding a public appointive office or position including active members of the
Armed Forces of the Philippines, and officers and employees in government-
owned or controlled corporations, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.”
 Held: “x x x Section 66 of the Omnibus Election Code applies to officers and
employees in government-owned or controlled corporations, even if they do
not fall under the Civil Service Law but under the Labor Code. In other words,
Section 66 constitutes just cause for termination of employment in addition to
those set forth in the Labor Code, as amended. (Id., at 845)”

2. Acceptance of incompatible office: Manila Broadcasting Co. v. NLRC,

2nd Div., Mendoza, J., 294 SCRA 486 (1998)

The Court approved of the company policy.

“What is involved in this case is an unwritten company policy considering any

employee who files a certificate of candidacy for any elective or local office as
resigned from the company. Although 11(b) of R.A. No. 6646 does not require
mass media commentators and announcers such as private respondent to
resign from their radio or TV stations but only to go on leave for the duration
of the campaign period, we think that the company may nevertheless validly
require them to resign as a matter of policy. In this case, the policy is justified
on the following grounds:

“Working for the government and the company at the same time is clearly
disadvantageous and prejudicial to the rights and interest not only of the
company but the public as well. In the event an employee wins in an election,
he cannot fully serve, as he is expected employers, obviously detrimental to
the interest of both the government and the private employer.

In the event the employee loses in the election, the impartiality and cold
neutrality of an employee as broadcast personality is suspect, thus readily
eroding and adversely affecting the confidence and trust of the listening
public to employer’s station.” (petition, rollo, p. 18)

These are valid reasons for petitioner. No law has been cited by
private respondent prohibiting a rule such as that in question. Private
respondent cites the Local Government Code, #90(b) of which provides that
“Sanggunian members may practice their profession, engage in any
occupation, or teach in schools except during session hours.” This provision,
however, is merely permissive and does not preclude the adoption of a
 contrary rule, such as that in question. The company policy is reasonable and
not contrary to law.” (Id., at 490-491).

Note: Because there was a doubt as to whether the policy was properly
promulgated and made know to all employees, and because he was found to
be in good faith in filing his certificate of candidacy and not resigning after
doing so, respondent was ordered reinstated with qualified backwages. (Id., at
295)

3. Union Officers who knowingly participate in an Illegal Strike (Art.

264(a)).

Jackbilt Industries, Inc. v, Jackbilt Employees Workers Union, 581 SCRA 291 (March 20,
2009), 1st Div., Corona, J.

Issue: whether or not the filing of a petition with the labor arbiter to declare a strike illegal is a condition
sine qua non for the valid termination of employees who commit an illegal act in the course of such strike.

[RATIO] “The principle of conclusiveness of judgment, embodied in Section 47(c), Rule 39 of the rules of
Court, holds that the parties to a case are bound by the findings in a previous judgment with respect to
matters actually raised and adjudged therein.”

“Article 264(e) of the Labor Code prohibits any person engaged in picketing from
obstructing the free ingress to and egress from the employer’s premises. Since
respondent was found in the July 17, 1998 decision of the NLRC to have prevented
the free entry into and exit of vehicles from petitioner’s compound, respondent’s
officers and employees clearly committed illegal acts in the course of the March 9,
1998 strike.

The use of unlawful means in the course of a strike renders such strike
illegal.http://sc.judiciary.gov.ph/jurisprudence/2009/march2009/171618-19.htm -
_ftn29 Therefore, pursuant to the principle of conclusiveness of judgment, the March
9, 1998 strike was ipso facto illegal. The filing of a petition to declare the strike illegal
was thus unnecessary.

Consequently, we uphold the legality of the dismissal of respondent’s officers and

employees. Article 264 of the Labor
Codehttp://sc.judiciary.gov.ph/jurisprudence/2009/march2009/171618-19.htm -
_ftn30 further provides that an employer may terminate employees found to have
committed illegal acts in the course of a
strike.http://sc.judiciary.gov.ph/jurisprudence/2009/march2009/171618-19.htm -
_ftn31 Petitioner clearly had the legal right to terminate respondent’s officers and
employees (Id., at 299-300).”

4. Employees who knowingly violate the union security clause

stipulated in the CBA (Art. 248 (e))
 Historical Note: Pili v. NLRC, 217 SCRA 338 (1993)

Salunga v. CIR, 21 SCRA 216 (1967)

Malayang Samahan v. Ramos, 326 SCRA 428 (2000)

General Milling Corp. v. Casio et al., L-149552, March 10, 2010, 1st Div.,
Leonardo-de Castro, J.

In terminating the employment of an employee by enforcing the union security

clause, the employer needs only to determine and prove that: (1) the union security
clause is applicable; (2) the union is requesting for the enforcement of the union
security provision in the CBA; and (3) there is sufficient evidence to support the
decision of the union to expel the employee from the union. These requisites
constitute just cause for terminating an employee based on the union security
provision of the
CBA.http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/149552.htm - _ftn26

There is no question that in the present case, the CBA between GMC and IBM-
Local 31 included a maintenance of membership and closed shop clause as can be
gleaned from Sections 3 and 6 of Article II. IBM-Local 31, by written request, can ask
GMC to terminate the employment of the employee/worker who failed to maintain its
good standing as a union member.

It is similarly undisputed that IBM-Local 31, through Gabiana, the IBM Regional
Director for Visayas and Mindanao, twice requested GMC, in the letters dated March
10 and 19, 1992, to terminate the employment of Casio, et al. as a necessary
consequence of their expulsion from the union.

It is the third requisite – that there is sufficient evidence to support the

decision of IBM-Local 31 to expel Casio, et al. – which appears to be lacking in this
case. X x x

The failure of GMC to make a determination of the sufficiency of evidence

supporting the decision of IBM-Local 31 to expel Casio, et al. is a direct consequence
of the non-observance by GMC of procedural due process in the dismissal of
employees.

As a defense, GMC contends that as an employer, its only duty was to

ascertain that IBM-Local 31 accorded Casio, et al. due process; and, it is the finding of
the company that IBM-Local 31 did give Casio, et al. the opportunity to answer the
charges against them, but they refused to avail themselves of such opportunity.

This argument is without basis.

The Court has stressed time and again that allegations must be proven by
sufficient evidence because mere allegation is definitely not
evidence.http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/149552.htm -
_ftn28 Once more, in Great Southern Maritime Services Corporation. v.
Acuña,http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/149552.htm - _ftn29
the Court declared:
 Time and again we have ruled that in illegal dismissal cases like
the present one, the onus of proving that the employee was not
dismissed or if dismissed, that the dismissal was not illegal, rests on
the employer and failure to discharge the same would mean that the
dismissal is not justified and therefore illegal. Thus, petitioners must
not only rely on the weakness of respondents’ evidence but
must stand on the merits of their own defense. A party
alleging a critical fact must support his allegation with
substantial evidence for any decision based on
unsubstantiated allegation cannot stand as it will offend due
process. x x x. (Emphasis supplied.)

Latest Application of the General Milling Doctrine.

PICOP RESOURCES, INCORPORATED (PRI) v. TAÑECA, et. al., L-160828, August 9, 2010, 2nd
Div., PERALTA, J.

However, in terminating the employment of an employee by enforcing the

union security clause, the employer needs to determine and prove that: (1) the union
security clause is applicable; (2) the union is requesting for the enforcement of the
union security provision in the CBA; and (3) there is sufficient evidence to support the
decision of the union to expel the employee from the union. These requisites
constitute just cause for terminating an employee based on the union security
provision of the CBA.

As to the first requisite, there is no question that the CBA between PRI and respondents included a
union security clause, specifically, a maintenance of membership as stipulated in Sections 6 of Article II,
Union Security and Check-Off. Following the same provision, PRI, upon written request from the Union,
can indeed terminate the employment of the employee who failed to maintain its good standing as a union
member.
Secondly, it is likewise undisputed that NAMAPRI-SPFL, in two (2) occasions demanded from
PRI, in their letters dated May 16 and 23, 2000, to terminate the employment of respondents due to their
acts of disloyalty to the Union.
However, as to the third requisite, we find that there is no sufficient evidence to support the
decision of PRI to terminate the employment of the respondents.

PRI alleged that respondents were terminated from employment based on the
alleged acts of disloyalty they committed when they signed an authorization for the
Federation of Free Workers (FFW) to file a Petition for Certification Election among all
rank-and-file employees of PRI. It contends that the acts of respondents are a
violation of the Union Security Clause, as provided in their Collective Bargaining
Agreement.

We are unconvinced.

We are in consonance with the Court of Appeals when it held that the mere
signing of the authorization in support of the Petition for Certification Election of FFW
on March 19, 20 and 21, or before the “freedom period,” is not sufficient ground to
terminate the employment of respondents inasmuch as the petition itself was
actually filed during the freedom period. Nothing in the records would show that
respondents failed to maintain their membership in good standing in the Union.
Respondents did not resign or withdraw their membership from the Union to which
they belong. Respondents continued to pay their union dues and never joined the
FFW.

Significantly, petitioner's act of dismissing respondents stemmed from the

latter's act of signing an authorization letter to file a petition for certification election
as they signed it outside the freedom period. However, we are constrained to believe
that an “authorization letter to file a petition for certification election” is different
from an actual “Petition for Certification Election.” Likewise, as per records, it was
clear that the actual Petition for Certification Election of FFW was filed only on May
18, 2000. Thus, it was within the ambit of the freedom period which commenced
from March 21, 2000 until May 21, 2000. Strictly speaking, what is prohibited is the
filing of a petition for certification election outside the 60-day freedom period. This is
not the situation in this case. If at all, the signing of the authorization to file a
certification election was merely preparatory to the filing of the petition for
certification election, or an exercise of respondents’ right to self-organization.

Moreover, PRI anchored their decision to terminate respondents’ employment on Article 253 of the
Labor Code which states that “it shall be the duty of both parties to keep the status quo and to continue in
full force and effect the terms and conditions of the existing agreement during the 60-day period and/or
until a new agreement is reached by the parties.” It claimed that they are still bound by the Union
Security Clause of the CBA even after the expiration of the CBA; hence, the need to terminate the
employment of respondents.
Petitioner's reliance on Article 253 is misplaced.
The provision of Article 256 of the Labor Code is particularly enlightening. It reads:
Article 256. Representation issue in organized establishments. -
In organized establishments, when a verified petition questioning the
majority status of the incumbent bargaining agent is filed before the
Department of Labor and Employment within the sixty-day period
before the expiration of a collective bargaining agreement, the Med-
Arbiter shall automatically order an election by secret ballot when the
verified petition is supported by the written consent of at least twenty-
five percent (25%) of all the employees in the bargaining unit to
ascertain the will of the employees in the appropriate bargaining unit.
To have a valid election, at least a majority of all eligible voters in the
unit must have cast their votes. The labor union receiving the majority
of the valid votes cast shall be certified as the exclusive bargaining
agent of all the workers in the unit. When an election which provides
for three or more choices results in no choice receiving a majority of
the valid votes cast, a run-off election shall be conducted between the
labor unions receiving the two highest number of votes: Provided, That
the total number of votes for all contending unions is at least fifty per
cent (50%) of the number of votes cast.

At the expiration of the freedom period, the employer

shall continue to recognize the majority status of the
incumbent bargaining agent where no petition for certification
election is filed.