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Upon being charged for dismissal, the employee has the right to be heard and to defend himself
personally and/or with the assistance of a representative. Every opportunity and assistance must
be accorded to the employee by management to enable him to prepare adequately for his defense,
including legal representation. (Pono vs. NLRC, supra) Denial of the employee’s right to counsel
would render the dismissal illegal because the right to counsel is a basic requirement of
substantive due process, and must be observed for it is a Constitutional right. (Salaw vs. NLRC,
202 SCRA 7) The employer has the authority to decide on the question of dismissal. The
decision is however without prejudice to the employee’s right to contest its validity or legality by
means of a complaint for illegal dismissal filed with the labor arbiter’s office in the appropriate
Regional Office of the NLRC.
11. BURDEN OF PROOF. In termination cases, the burden of proof rests upon the employer to
show that the dismissal was for adjust cause, Failure to do so would necessarily mean the
dismissal was not justified. (Polymedie Gen. Hospital vs. NLRC, 134 SCRA 420; Manggagawa
ng Komunikasyon sa Pilipinas vs. NLRC, 194 SCRA 573; Gesulgon vs. NLRC, 219 SC RA 56fl.
In administrative proceedings, such as illegal dismissal cases, the wrongdoing of the party
concerned need not be shown by proof “beyond reasonable doubt” required by criminal law, nor
even by “preponderance of evidence” needed in civil actions. What suffices is “substantial
evidence” to support the dismissal. The Supreme Court has defined the term in this way:
Substantial evidence is more than mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” (Ang Tibay vs. CIR, 69 Phil. 635;
Megascope General Services vs. NLRC, 274 SCRA 147) The substantial evidence rule does not
authorize a finding to be made just as long as there is an evidence to support it. It does not
excuse administrative agencies from considering contrary evidence which fairly detracts from
the evidence supporting a finding. (Samahang Manggagawa sa Bandolino vs. NLRC, 275 SCRA
633).
This quantum of proof is not to be underesfimahd , as well illustrated in several cases. Thus it
has been held that evidence presented before the NLRC must at least have a modicum of
admissibility for it to be given some probative value. (Uichico vs. NLRC, 273 SCRA 35) A
charge of misappropriation should be supported by documentary evidence such as collection
reports, invoices, denomination slips, cash count sheets and individual deposit slips. A ship’s
logbook presented as evidence should be authenticated, and not merely reported as to its
contents. (Willem Maritime Services vs. NLRC, 263 SCRA 174) An employer’s reliance on a
telefax transmission was deemed woefully inadequate in meeting the refund quantum of proof
which is substantial evidence whose function is one of quality, not quantity. (Pacific Maritime
Services vs. Ranay, 275 SCRA 717) Business losses as a cause for retrenchment should be
supported with financial statements by independent auditors to show imminent substantial losses,
and whether such losses increased or decreased, as well as cost reduction measures instituted
before understanding retrenchment. (Banana Growers Collective vs. NLRC, July 31, 1997).

Where the employee offsets a facie case made out by the employer for a lawful dismissal, the
balance of evidence moves to equipoise. But equipoise is not enough. The employer must
affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause.
(Dizon vs. NLRC, 180 SCRA 52).
Doubtful evidence, such as hearsay, cannot deprive a worker of his right to security of tenure.
(Macilos vs. NLRC, March 4, 1996) And where the employee failed to establish his claim before
the labor arbiter because access to the evidence needed for that purpose was under the absolute
control of the employer, this is deemed to constitute a denial of due process. (Independent Sagay
- Escalante Planters vs. NLRC, 207 SCRA 218) Corollary to this, non-submission of documents
or records in the control of the employer raises the presumption that such records, if produced,
would be adverse to the employed (Coca - Cola Bottlers Phil. vs. NLRC, 180 SCRA 195) All
these are deemed elements of due process that are indispensable in every case.

12. EXCEPTIONAL CASES. The general rule that a valid dismissal is one for just or
authorized cause and after observance of due process bears some exceptions in jurisprudence.

Thus it has been held that despite the existence of a valid cause for dismissal, it should not be
imposed as it is too severe a penalty if the worker has been employed for a long time in the
service of the employee and it is his first offense (Meralco vs. NLRC and Signo, 175 SCRA 277)
However, this rule is not all-encompassing. Considerations of first offense and length of service
are overshadowed by the seriousness of the offense. Thus, it was held that an employee with 27
years of service may be lawfully dismissed for his first offense if done in blatant disobedience to
a lawful order of his employer, and his offense shows lack of concern or responsibility towards
his employer’s interest. In this case, a crew member violated an order not to leave the ship, and
disconnected the ship’s steering cable so that the vessel could not leave port without him. As to
whether an offense is minor or serious will have to be determined according to the peculiar facts
of each case. (Villeno vs. NLRC, 251 SCRA 494) If it is not the employee’s first offense,
reinstatement is not warranted on the ground of equity based on length of service. (CCBPI vs.
NLRC, 172 SCRA 751) In a recent case, the dismissal of a worker with 32 years of service was
upheld upon proof that he defrauded his employer m anomalous transactions of company
equipment. (Bianan vs. NLRC, Feb. 1998) But first offense and length of service are factors
considered in the application of social and compassionate justice to the dismissed employee.
(Aparente vs. NLRC, April 27, 2000) Long service ernployees dismissed for just cause have
been afforded some equitable relief in the form of separation pay equivalent to one month’s
salary for every year of service. (Soco vs. Mercantile Corp. of Davao, 148 SCRA 526; Tanala vs.
NLRC. 252 SCRA 314).

By way of exception also, non-observance of the due process requirement will not necessarily
render a dismissal defective. Where the employee concerned appears to be of a violent temper,
troublesome and defiant of superiors, and is dismissed for cause but without due process, his
dismissal will be upheld, but the employer will be liable to indemnify the employee for its breach
of legal procedure; the measure of damages will depend on the facts of the case, and on the
gravity of the omission by the employer. (Wenphil vs. NLRC, 170 SCRA69; Meralcovs. NLRC
and Mores, 178 SCRA 198) The rationale given for this ruling is that troublesome and violent
employees should not be rewarded with reemployment and back-wages. This may only
encourage them to do even worse, and render a mockery of the rules of discipline that employees
are required to observe. In these cases, the dismissals should be maintained, and such employees
would have no right to return to their former employment.
While the twin requirements of notice and hearing are indispensable for a valid dismissal, failure
to observe these requirements does not necessarily operate to invalidate or nullify the dismissal
for a just and valid cause. A distinction should be made between the legality of the act of
dismissal and the legality of the manner by which the act of dismissal was performed. The first
refers to the substantive requirement of valid cause, the second involves the observance of the
procedural requirement of due process. It is now settled that where the dismissal of an employee
is proven to be for a just and valid cause, but he is not accorded his right to procedural due
process, the dismissal shall be upheld, but the employer must be sanctioned for non-compliance
with the requirements of due process. The sanction, which is in the nature of indemnification or
penalty, depends on the facts of each case and the gravity of the omission by the employee and
ranges from P 1,000 to P l0,000.(Falguera vs. Linsangan, 251 SCRA 364).

It is an indemnity, not separation pay, that is imposed on the employer for failure to observe the
procedural requirements of notice and hearing. (Grepalife Assurance Corp. vs. NLRC, 187
SCRA 694)

13. RELIEFS IN ILLEGAL DISMISSAL CASES. The amended legal provision on this point
states: “x x x an employee who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full back wages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement” (Art. 279 LC as
am. by R.A. 6715). Jurisprudence has added the relief's of separation pay, moral damages and
attorney’s fees in proper cases.

An employee whose dismissal is found to be illegal is considered not having left his office so
that he is entitled to all the rights and privileges that accrue to him by virtue of the position that
he held. The backwaters to be awarded should not be diminished or reduced by earnings derived
by the employee elsewhere during the term of his illegal dismissal. (Buhain vs. CA and Swift
Foods, Inc., July 2, 2002).

An employee who is reinstated assumes the position he had occupied prior to his dismissal and
is, as an ordinary rule, entitled only to his last salary in that position. (Groier International vs.
Amansec, 177 SCRA 196).