What is the value of an affidavit in a labor case? Does it have any probative weight to establish the fact in issue?

In one case, the employer dismissed the complainants for irregularity. The employer presented affidavits to prove that the employees who complained were liable for the dismissal.

However, the complainants argued that the affidavits presented by the employer were inadmissible to prove their culpability which would justify their dismissal from employment. Particularly, they averred that: (1) the affidavits were taken ex-parte and, thus, incomplete and inaccurate; (2) statements therein are self-serving and hearsay, and unsubstantiated by concrete evidence; and (3) the admissions of culpability made by their co-employees are binding only on them and not on complainants. [JR Hauling Services vs. Solamo, G.R. No. 214294, September 30, 2020]

The Supreme Court (SC) held that although the affidavits do not address complainants’ participation in the delivery shortages of broilers, it is apparent that the statements in the same affidavits attest to their

involvement in the unauthorized sale of excess broilers and broiler crates.

Are the affidavits sufficient to establish respondents’ involvement in the alleged acts in question? The SC answered in the affirmative.

In labor cases, affidavits may be sufficient to establish substantial evidence.” Complainants argued, however, that affidavits taken ex-parte should not be given due weight for being self-serving, hearsay and inadmissible in evidence. By citing pertinent provisions on the rules on evidence, they insisted that any admissions made therein cannot be used to establish their culpability, but only of the confessants themselves.

The argument that the affidavits are hearsay for having been taken ex parte i.e., that the affiants were not presented for cross-examination, did not persuade the SC. The rules of evidence prevailing in courts of law do not control proceedings before the labor tribunals where decisions may be reached on the basis of position papers, accompanied by supporting documents, including affidavits of witnesses, and other allied pleadings.

Thus, in Bantolino v. Coca Cola Bottlers Phils. Inc., the SC held that administrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only stringent application, i.e., by analogy or in a suppletory character and effect.

The argument, citing People v. Sorrel, that an affidavit not testified to in a trial, is mere hearsay evidence

and has no real evidentiary value, cannot find relevance considering that a criminal prosecution requires a quantum of evidence different from that of an administrative proceeding.

Along the same lines, in Southern Cotabato Development and Construction Inc. vs. National Labor Relations Commission that Article 221 (now 227) of the Labor Code, as amended, provides that the rules of evidence prevailing in courts of law or equity shall not be controlling and that the LA and the NLRC shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law and procedure, all in the interest of due process.

Clearly, to disregard the affidavits on the ground that they were taken ex-parte would necessarily require the application of the technical rules of evidence and thereby negate the purpose of the summary nature of labor proceedings mandated by the Labor Code and the NLRC Rules of Procedure.

At any rate, we find that the affidavits executed by various co-employees constitute substantial evidence to prove respondents’ involvement in the unauthorized sale of excess broilers and broiler crates. We are inclined to give them evidentiary weight absent any evidence to rebut their validity. It is well settled that “a document acknowledged before a notary public is a public document that enjoys the presumption of regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution.”

The case of Gabunas, Sr. vs. Scanmar Maritime Services Inc. is instructive stating that as between bare allegation and the Affidavit of a witness to the contrary, credence is given to the latter.

In Pan Pacific Industrial Sales Co., Inc. vs. Court of Appeals, et al., it was held that a notarized document carries the evidentiary weight conferred upon it with respect to its due execution. It has in its favor the presumption of regularity, which may only be rebutted by evidence so clear, strong and convincing as to exclude all controversy as to the falsity of the certificate. Absent such evidence, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarial document lies in the one contesting the same.

When the other party failed to present convincing evidence to rebut the assertions made by the other on a crucial point the affidavit may be believed. While the court may be ready to construe in favor of labor in case of doubt, and while the Affidavit presented by employer could be considered self-serving, if there was absolutely no evidence to rebut this Affidavit, the Affidavit must be believed.

See here the procedure to observe when the employee refuses to receive employer’s notice.

In addition, the company should send another copy by registered mail and keep the registry receipt for future reference.

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The rule is that one who alleges a fact has the burden of proving it; thus, the employees are burdened to prove their allegation that the employer dismissed them from their employment. It must be stressed that the evidence to prove this fact must be clear, positive and convincing. (Machica vs. Roosevelt Services Center, Inc., 523 Phil. 199 (2006))

The rule that the employer bears the burden of proof in illegal dismissal cases finds no application here because the employer denies having dismissed the employees.

There can be no question as to the legality or illegality of a dismissal if the employee has not discharged his burden to prove the fact of dismissal by substantial evidence.

While it is true that in constructive dismissal cases, the employer is charged with the burden of proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity. However, it is likewise true that in constructive dismissal cases, the employee has the burden to prove first the fact of dismissal by substantial evidence.

Only then when the dismissal is established that the burden shifts to the employer to prove that the dismissal was for just and/or authorized cause. The logic is simple — if there is no dismissal, there can be no question as to its legality or illegality. [Galang vs. Boie Takeda Chemicals Inc., 790 Phil. 582, 599 (2016)]

In a case where the employee relied primarily on his allegations that he was misled by the Company into resigning and that he was actually retrenched, these uncorroborated and self-serving allegations, especially considering the existence of a resignation letter and a quitclaim (both bearing his signature), fall short of the evidence required under the law to discharge the burden to prove that he was dismissed by the Company.

In Gemina, Jr. vs. Bankwise, Inc., the SC ruled that the employee had indeed failed to state circumstances substantiating his claim of constructive dismissal as the employee therein had not claimed to have suffered a demotion in rank or diminution in pay or other benefits. Instead, the said employee only claimed to have been subjected to several acts of harassment by several officers of the employer-company, including being asked to take a forced leave of absence, demanding back the employee’s service vehicle, and delaying the release of employee’s salaries and allowances in order to compel him to quit employment.

Before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. Bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence.

Where the claim is that of construction dismissal, an act, to be considered as amounting to constructive dismissal, there must be a display of utter discrimination or insensibility on the part of the employer so intense that it becomes unbearable for the employee to continue with his employment.

Where the circumstances relayed by employee in constructive dismissal case were not clear-cut indications of bad faith or some malicious design on the part of employer to make his working environment insufferable, the burden is not discharged.

In Gan vs. Galderma Philippines, Inc., the SC held that where the employee alleges that he involuntarily resigned due to circumstances in his employment that are tantamount to constructive dismissal, the employee must prove his allegations with particularity.

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Twin Requirements of Notice and Hearing

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Notice to Explain: Contents and Requirements

Especially in the case of employee dismissal, the law strictly requires adherence to the notice requirements and imposes indemnity for employer’s violation.

In the case of King of Kings Transport, Inc. vs. Mamac, the Supreme Court (SC) laid down the procedural due process required in employee termination. First, there should be notice to explain or NTE. Then a hearing/conference. Finally, a notice of dismissal.

As can be observed, there are several notices in a single act of dismissal. These are know as the two-notice rule. While the holding of hearing / conference is still contentious, it is best to err on the side of caution by holding the same anyway.

In the case of Perez vs. PT&T, G.R. No. 152048, April 7, 2009,  the SC held that a formal or trial type hearing is not at all times and in all instances essential to due process, the requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. It is deemed sufficient for the employer to follow the natural sequence of notice,

hearing and judgment.

After receiving the first notice apprising him of the charges against him, the employee may submit a written explanation (which may be in the form of a letter, memorandum, affidavit or position paper) and offer evidence in support thereof, like relevant company records (such as his 201 file and daily time records) and the sworn statements of his witnesses.

For this purpose, he may prepare his explanation personally or with the assistance of a representative or counsel. He may also ask the employer to provide him copy of records material to his defense. His written explanation may also include a request that a formal hearing or conference be held.

In such a case, the conduct of a formal hearing or conference becomes mandatory, just as it is where there exist substantial evidentiary disputes or where company rules or practice requires an actual hearing as part of employment pretermination procedure. To this extent, the SC refined the decisions we have rendered so far on this point of law.

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.

The 2019 Amendments to the Rules of Court duly recognize the computer printouts as original documents. Thus, computer printouts of text, chat, or any form of electronic medium that is readable may be used as proof of compliance with the procedural due process nowadays. This is just my personal view.

It has to be seen whether the courts also see it this way.

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Twin Requirements of Notice and Hearing

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Notice to Explain: Contents and Requirements

The answer is no.

Proceeding in labor is administrative in nature. All administrative determinations require only substantial proof and not clear and convincing evidence. (Segismundo vs. NLRC, G.R. No. 112203, December 13, 1994; Consolidated Food Corporation vs. NLRC, G.R. No. 118647, September 23, 1999; Manalo vs. Roldan Confesor, 215 SCRA 808.)

Substantial evidence is that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion.

It is more than a mere scintilla; it is of a more substantial and relevant consequence and excludes vague, uncertain and irrelevant matter, implying a quality of proof which induces conviction and makes an

impression on reason.

In short, the quantum of evidence required in labor cases is less than that in criminal cases. As to level of difficulty, it is easier to prove a case in labor than in criminal court.

The value of understanding this concept from the perspective of the management or employer is to know what to prepare in case of labor dispute. Knowing the evidence to be presented to prove a position and the weight of such evidence will provide valuable insight in the preparation.

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

Read more on procedural due process discussion by Atty. Elvin:

Read more on procedural due process by Atty. Villanueva:

Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements