Dec 262014

IN 2002, petitioner United Tourist Promotions (UTP), registered in the name of Ariel D. Jersey, employed respondent Harland B. Kemplin as its president for a period of five years, to commence on March 1, 2002 to end on March 1, 2007 “renewable for the same period, subject to new terms and conditions.” On May 12, 2009 he signed as its president advertisement agreements with Pizza Hut and M. Lhuillier.

On July 30, 2009, UTP’s legal counsel sent Kemplin a letter informing the latter that he was no longer an employee of UTP considering the expiration of his employment contract. The extension of his services was only tolerated. He was further informed of cases filed against him for grave oral threat, summary deportation, and grave coercion and grave oral threats. Consequently, he was given a notice to cease and desist from entering UTP’s premises from receipt thereof.

On Aug. 10, 2009, Kemplin filed before a Regional Arbitration Branch of the National Labor Relations Commission (NLRC) a complaint against UTP and Jersey, for illegal dismissal, retirement benefits, recovery of the company car, and money claims. He insisted, among others, that he was not duly afforded due process before dismissal. Is there merit to this claim?

Ruling: Yes.

UTP’s letter sent to Kemplin on July 30, 2009 is a lame attempt to comply with the twin notice requirement provided for in Section 2, Rule 23, Book 5 of the Rules Implementing the Labor Code.

The charges against Kemplin were not clearly specified. While the letter stated that Kemplin’s employment contract had expired, it likewise made general references to alleged criminal suits filed against him. One who reads the letter is inevitably bound to ask if Kemplin is being terminated due to the expiration of his contract, or by reason of the pendency of suits filed against him. Anent the pendency of criminal suits, the statement is substantially bare. Besides, an employee’s guilt or innocence in a criminal case is not determinative of the existence of a just or authorized cause for his dismissal. The pendency of a criminal suit against an employee, does not, by itself, sufficiently establish a ground for an employer to terminate the former.

It also bears stressing that the letter failed to categorically indicate which of the policies of UTP did Kemplin violate to warrant his dismissal from service. Further, Kemplin was never given the chance to refute the charges against him as no hearing and investigation were conducted. Corollarily, in the absence of a hearing and investigation, the existence of just cause to terminate Kemplin could not have been sufficiently established (Reyes, J., SC First Division; United Tourist Promotions (UTP) and Ariel D. Jersey vs. Harland B. Kemplin, G.R. No. 205453, Feb. 5, 2014).

Published in the Sun.Star Cebu newspaper on December 27, 2014.

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