Case Doctrine:

Compliance with the certification against forum shopping is separate from and
independent of the avoidance of the act of forum shopping itself.

Facts:

The respondent Alcaraz was the Regulatory Affairs and Information Manager of Aventis
Pasteur Philippines who showed interest in applying as a Medical and Regulatory Affairs
Manager, a position that was published by the petitioner Abbot Laboratories in the
newspaper. When the petitioner formally offered the position to the respondent, the
latter accepted the position. It was on May 23, 2005 that Walsh, Almazar and Bernardo
formally handed to the respondent a letter terminating her employment with the
detailed explanation for her termination. The respondent then filed a complaint for
illegal dismissal with damages against the petitioner and its officers. The Labor Arbiter
upheld the termination of probationary employment of the respondent holding that the
termination was justified with no evidence showing that the officers of the Abbot Lab
acted in bad faith when terminating her services.

The NLRC annulled and set aside the ruling of the Labor Arbiter which prompted the
petitioners to file before the Court of Appeals a petition for certiorari with prayer
for issuance of a temporary restraining order and writ of preliminary injunction.
Meanwhile, the action of the petitioner on its motion for reconsideration of the CA’s
resolution in the second CA petition was denied that became final on January 10, 2011
because the petitioner failed to file a timely appeal on the said decision. Alcaraz, in her
comment, raised the issue on forum shopping when the petitioner filed its second
petition to the CA pending the resolution of the motion for reconsideration that they
filed earlier in the December 10, 2009 decision. Alcaraz further contends that the
petitioners failed to comply with certificationrequirement under Section 5, Rule 7 of the
rules of court when they failed to disclose in their petition filed on June 16,
2010Memorandum of Appeal filed before the NLRC.

Issue:

Whether or not the petitioner violated the rule against forum shopping and have violated
the certification requirement under Section 5, Rule 7 of the Rules of Court.
Ruling:

The court emphasized that the compliance with the certification against forum shopping
is different and separate from the avoidance of the act of forum shopping itself. There is
difference in the treatment between the two situations in terms of the imposable
sanctions and the means of enforcing them. The failure to comply with the
certification requirement against forum shopping is sufficient cause for the dismissal of
the complaint without prejudice to the filing of the complaint or initiatory pleading upon
motion and after hearing. The failure to avoid the act of forum shopping, on the other
hand, is a sufficient ground for a summary dismissal and direct contempt.

In the first situation, forum shopping takes place when the party files multiple suits that
involve the same parties with the same issue, either simultaneously or successively, in
order to obtain a favorable judgment. It is present when there is the requisites of litis
pendentia namely : (1) identity of parties is the same with the same interests in both
actions, (2) identity of rights asserted and reliefs prayed for and founded on the same
facts, (3) identity of the two preceding cases where a judgment rendered in the pending
case will amount to res judicata in the other case. Taking into account these requisites,
the court found no elements of a forum shopping. The first petition before the CA was
instituted in order to question the NLRC ruling with respect to the illegal dismissal of
Alcaraz. The second petition before the CA involves the issue on the propriety of the
enforcement of the judgment award pending the resolution of the first CA petition and
the finality of the decision in the labor dispute between the parties. The decision on the
first CA petition does not amount to res judicata with respect to the second petition
before the CA as the two petitions involve different subject matter and cause of action,
hence there is no forum shopping.

In the second situation, section 5 of Rule 7 of the Rules of Court requires the plaintiff to
disclose/declare under oath that the best of his knowledge no such other action or claim
is pending before other courts. Records show that the issues raised in the petition before
the CA and those raised in the June 16, 2010 Memorandum of Appeal filed before the
NLRC cover different subject matter and causes of action, therefore there was no
violation of the said provision of the rules of court.

Due process requirements in dismissing a

worker. - G.R. No. 185829
G.R. No. 185829
"x x x.

Aliling’s right to procedural due process was violated

As earlier stated, to effect a legal dismissal, the employer must show

not only a valid ground therefor, but also that procedural due process has
properly been observed. When the Labor Code speaks of procedural due
process, the reference is usually to the two (2)-written notice rule envisaged
in Section 2 (III), Rule XXIII, Book V of the Omnibus Rules Implementing
the Labor Code, which provides:

Section 2. Standard of due process: requirements of notice. — In all cases of

termination of employment, the following standards of due process shall be substantially
observed.

I. For termination of employment based on just causes as defined in Article 282 of

the Code:
(a) A written notice served on the employee specifying the ground or grounds for
termination, and giving to said employee reasonable opportunity within which to explain
his side;

(b) A hearing or conference during which the employee concerned, with the
assistance of counsel if the employee so desires, is given opportunity to respond to the
charge, present his evidence or rebut the evidence presented against him; and

(c) A written notice [of] termination served on the employee indicating that upon
due consideration of all the circumstance, grounds have been established to justify his
termination.

In case of termination, the foregoing notices shall be served on the employee’s

last known address.

MGG Marine Services, Inc. v. NLRC[38] tersely described the

mechanics of what may be considered a two-part due process requirement
which includes the two-notice rule, “x x x one, of the intention to dismiss,
indicating therein his acts or omissions complained against, and two, notice
of the decision to dismiss; and an opportunity to answer and rebut the
charges against him, in between such notices.”

King of Kings Transport, Inc. v. Mamac[39] expounded on this

procedural requirement in this manner:
(1) The first written notice to be served on the employees should contain the
specific causes or grounds for termination against them, and a directive that the
employees are given the opportunity to submit their written explanation within a
reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind
of assistance that management must accord to the employees to enable them to prepare
adequately for their defense. This should be construed as a period of at least five calendar
days from receipt of the notice xxxx Moreover, in order to enable the employees to
intelligently prepare their explanation and defenses, the notice should contain a detailed
narration of the facts and circumstances that will serve as basis for the charge against the
employees. A general description of the charge will not suffice.Lastly, the notice should
specifically mention which company rules, if any, are violated and/or which among the
grounds under Art. 288 [of the Labor Code] is being charged against the employees

(2) After serving the first notice, the employees should schedule and conduct
ahearing or conference wherein the employees will be given the opportunity to (1)
explain and clarify their defenses to the charge against them; (2) present evidence in
support of their defenses; and (3) rebut the evidence presented against them by the
management. During the hearing or conference, the employees are given the chance to
defend themselves personally, with the assistance of a representative or counsel of their
choice x x x.

(3) After determining that termination is justified, the employer shall serve the
employees a written notice of termination indicating that: (1) all the circumstances
involving the charge against the employees have been considered; and (2) grounds have
been established to justify the severance of their employment. (Emphasis in the original.)

Here, the first and second notice requirements have not been properly
observed, thus tainting petitioner’s dismissal with illegality.

The adverted memo dated September 20, 2004 of WWWEC

supposedly informing Aliling of the likelihood of his termination and
directing him to account for his failure to meet the expected job performance
would have had constituted the “charge sheet,” sufficient to answer for the
first notice requirement, but for the fact that there is no proof such letter had
been sent to and received by him. In fact, in his December 13, 2004
Complainant’s Reply Affidavit, Aliling goes on to tag such
letter/memorandum as fabrication. WWWEC did not adduce proof to show
that a copy of the letter was duly served upon Aliling. Clearly enough,
WWWEC did not comply with the first notice requirement.

Neither was there compliance with the imperatives of a hearing or

conference. The Court need not dwell at length on this particular breach of
the due procedural requirement. Suffice it to point out that the record is
devoid of any showing of a hearing or conference having been conducted.
On the contrary, in its October 1, 2004 letter to Aliling, or barely five (5)
days after it served the notice of termination, WWWEC acknowledged that
it was still evaluating his case. And the written notice of termination itself
did not indicate all the circumstances involving the charge to justify
severance of employment.
x x x."

In Perez v. Philippine Telegraph and Telephone Company,[20] the

Court underscored the significance of the two-notice rule in dismissing an
employee:
To meet the requirements of due process in the dismissal of an employee, an employer
must furnish the worker with two written notices: (1) a written notice specifying the
grounds for termination and giving to said employee a reasonable opportunity to explain
his side and (2) another written notice indicating that, upon due consideration of all
circumstances, grounds have been established to justify the employer’s decision to
dismiss the employee. [emphases and italics ours].[21]
Contrary to Esguerra’s allegation, the law does not require that an
intention to terminate one’s employment should be included in the first
notice. It is enough that employees are properly apprised of the charges
brought against them so they can properly prepare their defenses; it is only
during the second notice that the intention to terminate one’s employment
should be explicitly stated.
 There is also no basis to question the absence of a proper
hearing. In Perez, the Court provided the following 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.[22]

In sum, the existence of an actual, formal "trial-type" hearing,

although preferred, is not absolutely necessary to satisfy the employee's
right to be heard. Esguerra was able to present her defenses; and only
upon proper consideration of it did Valle Verde send the second
memorandum terminating her employment. Since Valle Verde complied
with the two-notice requirement, no procedural defect exists in Esguerra’s
termination.

FACTS:

Respondents were hired by JAKA until their termination on August 29, 1997
because the Corporation was “in dire financial straits”. It was not disputed that
they were terminated without complying with the requirement under Art. 283 of
the Labor Code regarding the service of notice upon the employees and DOLE at
least one month before the intended date of termination.

ISSUE:

Whether or not full backwages and separation pay be awarded to respondents

when employers effected termination without complying with the twin notice rule.

RULING:
The dismissal of the respondents was for an authorized cause under Article 283.
A dismissal for authorized cause does not necessarily imply delinquency or
culpability on the part of the employee. Instead, the dismissal process is initiated
by the employer’s exercise of his management prerogative, i.e. when the
employer opts to install labor-saving devices, when he decides to cease business
operations or when… he undertakes to implement a retrenchment program.

Accordingly, it is wise to hold that:

1) if the dismissal is based on a just cause but the employer failed to comply with
the notice requirement, the sanction to be imposed upon him should be tempered
because the dismissal was initiate by an act imputable to the employee.

2) if the dismissal is based on an authorized cause but the employer fails 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. Thus, dismissal was upheld but ordered JAKA to pay each of the
respondents the amount of PhP 50,000.00 representing nominal damages for
non-compliance with statutory due process.