G.R. No. 114313 - MGG MARINE SERVICES, INC. AND/OR DOROTEO C. GARLAN AND CESAR ROTILO, VS. NATIONAL LABOR RELATIONS COMMISSION AND ELIZABETH A. MOLINA.

Ruling

accordingly to defend himself therefrom before dismissal is effected. Neither of these two requirements can be dispensed with without running afoul of the due process requirement of the 1987 Constitution." [14] In the case before us, the petitioners found out about the excess withdrawals when an audit was conducted. The record is devoid of any showing that private respondent was given notice of the charges against her. Neither was she given a hearing or opportunity to present her defense. The only allegation of petitioners was that she was asked questions about her withdrawals during the audit. But these are too scant and too bare to amount to due process. There was no indication of the nature and the type of questions asked, the process of the supposed inquiry, the time and opportunity given for her defense, and the degree of explanation allowed her. When this issue was brought up by the Solicitor General in his Comment, all that the petitioners could say in their Reply was: "There is no dispute that private respondent Molina was audited upon arrival of the senior management from the United States and that she herself admits that she was asked questions and was allowed to explain her side (pp. 28-18 (sic), TSN, July 26, 1991)." [15] Plainly, this is not sufficient compliance with due process. An audit cannot take the place of the twin requirements of notices and hearing. At the very least, petitioners failed to show they followed these requirements. "There is also no showing that the requirements of due process were adequately met by the petitioners. "The law requires that the employer must furnish the worker sought to be dismissed with two (2) written notices before termination of employment can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employers decision to dismiss him. (Sec. 13, BP 130; Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing the Labor Code as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory; in the absence of which, any judgment reached by management is void and inexistent ( Tingson, Jr. v. NLRC, 185 SCRA 498 [1990]; National Service Corp. v. NLRC, 168 SCRA 122 [1988]; Ruffy v. NLRC, 182 SCRA 365 [1990])." [16] This failure to show due process taints the dismissal. This does not mean however that the private respondent would be entitled to backwages or reinstatement or even separation pay. [17] Under prevailing jurisprudence, she is entitled only to indemnity or damages, the amount of which depends on the peculiar circumstances of each case. [18] In Wenphil Corporation vs. NLRC, et al. [19] , which is the leading example of these "indemnity cases," the private respondent had an altercation with a co-employee, as a result of which both were suspended the following morning, and in the afternoon of the sam