Petitioner Enrique Salafranca started working with the private respondent Philamlife Village Homeowners Association on May 1, 1981 as administrative officer for a period of six months. From this date until December 31, 1983, petitioner was reappointed to his position three more times.^[1] As administrative officer, petitioner was generally responsible for the management of the village's day to day activities.^[2] After petitioner's term of employment expired on December 31, 1983, he still continued to work in the same capacity, albeit, without the benefit of a renewed contract.

Sometime in 1987, private respondent decided to amend its by-laws. Included therein was a provision regarding officers, specifically, the position of administrative officer under which said officer shall hold office at the pleasure of the Board of Directors. In view of this development, private respondent, on July 3, 1987, informed the petitioner that his term of office shall be coterminus with the Board of Directors which appointed him to his position. Furthermore, until he submits a medical certificate showing his state of health, his employment shall be on a month-to-month basis.^[3] Oddly, notwithstanding the failure of herein petitioner to submit his medical certificate, he continued working until his termination in December 1992.^[4] Claiming that his services had been unlawfully and unceremoniously dispensed with, petitioner filed a complaint for illegal dismissal with money claims and for damages.^[5]

After the submission by the parties of their respective position papers and other pleadings, the Labor Arbiter rendered a decision^[6] ordering private respondent to pay the petitioner the amount of P257,833.33 representing his backwages, separation pay and 13th month pay. In justifying the award, the Labor Arbiter elucidated:

"Respondents' contention that complainant's term of employment was co-terminus with the term of Office of the Board of Directors, is wanting in merit. Records show that complainant had been hired in 1981 while the Amendment of the respondents' By-Laws making the position of an Administrative Officer co-terminus with the term of the Board of Directors was made in 1987. Evidently, the said Amendment would not be applicable to the case of complainant who had become a regular employee long time before the Amendment took place. Moreover, the Amendment should be applied prospectively and not retroactively."

On appeal by the private respondent, the NLRC reversed the decision of the Labor Arbiter and rendered a new one^[7] reducing petitioner's monetary award to only one-half (1/2) month pay for every year of service representing his retirement pay. In other words, the NLRC viewed the dismissal of the petitioner as a valid act by the private respondent.

"The fact that he continued to perform the function of the office of administrative officer without extension or re-appointment thereafter, to our mind, did not in any way make his employment permanent as in fact, he was even reminded of the nature of his position by then president of the association Jaime Y. Ladao in a letter of 3 July 1987. His reply to the aforesaid letter, claiming his employment regular, and viz a viz, referring to submit his medical certificate, notwithstanding, to our mind, merely underscored the need to define his position as, in fact, the Association's Rules and Regulations were amended if but to put to rest the tenural (sic) limit of the office of the Administrative Officer in accordance with its earlier intention, that it is co-terminus with that of the members of the Board of Directors.

WHEREFORE, the decision appealed from is hereby set aside. Respondents are hereby ordered to pay herein appellee one half (1/2) month pay for every year of service representing his retirement pay."

In view of the sudden turn of events, petitioner has elevated the case to this Court assigning the following errors:^[8]

1.  The NLRC gravely abused its discretion when it ruled that the employment of the Petitioner is not purely based on considerations of Employer-Employee relationship.

2.  Petitioner was illegally dismissed by private respondents.

As to the first assigned error by the petitioner, we need not dwell on this at length. We agree with the Solicitor General's observation that an employer-employee relationship exists between the petitioner and the private respondent.^[9]

"x x x                  x x x                 x x x

The first element is present in this case. Petitioner was hired as Administrative Officer by respondents. In fact, he was extended successive appointments by respondents.

The second element is also present since it is not denied that respondent PVHA paid petitioner a fixed salary for his services.

As to the third element, it can be seen from the Records that respondents had the power of dismissal over petitioner. In their letter dated December 7, 1992, respondents informed petitioner that they had decided to discontinue his services. In their Position Paper submitted to the Labor Arbiter, respondents stated that petitioner 'was dismissed for cause.' (p. 17, Record).

With respect to the fourth and most important element, respondents controlled the work of petitioner not only with respect to the ends to be achieved but also the means used in reaching such ends."

Relative to the second assigned error of the petitioner, both the Solicitor General and the private respondent take the stance that petitioner was not illegally dismissed.^[10] On this aspect, we disagree with their contentions.

On the outset, there is no dispute that petitioner had already attained the status of a regular employee, as evidenced by his eleven years of service with the private respondent. Accordingly, petitioner enjoys the right to security of tenure^[11] and his services may be terminated only for causes provided by law.^[12]

Viewed in this light, while private respondent has the right to terminate the services of petitioner, this is subject to both substantive and procedural grounds.^[13] The substantive causes for dismissal are those provided in Articles 282 and 283 of the Labor Code,^[14] while the procedural grounds refer to the observance of the requirement of due process.^[15] In all these instances, it is the private respondent, being the employer, who must prove the validity of the dismissal.^[16]

Having reviewed the records of this case carefully, we conclude that private respondent utterly failed to substantiate petitioner's dismissal, rendering the latter's termination illegal. At the risk of being redundant, it must be stressed that these requirements are mandatory and non-compliance therewith renders any judgment reached by the management void and inexistent.^[17]

While private respondent imputes "gross negligence," and "serious misconduct" as the causes of petitioner's dismissal,^[18] not a shred of evidence was offered in support thereof, other than bare and uncorroborated allegations. The facts and circumstances regarding such alleged infractions were never explained. While it is true that private respondent, through its president Bonifacio Dazo, executed an affidavit narrating the alleged violations of the petitioner,^[19] these were never corroborated by concrete or competent evidence. It is settled that no undue importance should be given to a sworn statement or affidavit as a piece of evidence because, being taken ex-parte, an affidavit is almost always incomplete and inaccurate.^[20] Furthermore, it must be noted that when petitioner was terminated in 1992, these alleged infractions were never raised nor communicated to him. In fact, these were only revealed after the complaint was filed by the petitioner in 1993. Why there was a delay was never adequately explained by private respondent.

Likewise, we note that Dazo himself was not presented as a witness to give the petitioner an opportunity to cross-examine him and propound clarificatory questions regarding matters averred in his affidavit. All told, the foregoing lapses and the belated submission of the affidavit, cast doubt as to the credibility of the allegations. In sum, the dismissal of the petitioner had no factual basis whatsoever. The rule is that unsubstantiated accusations without more, are not tantamount to guilt.^[21]

As regards the issue of procedural due process, private respondent justifies its non-compliance therewith in this wise:

"The Association Officers, being his peers and friends had a problem however in terminating his services. He had been found to have committed infractions as previously enumerated. PVHA could have proceeded with a full-blown investigation to hear these charges, but the ordeal might break the old man's heart as this will surely affect his standing in the community. So they decided to make their move as discreetly (but legally) as possible to save the petitioner's reputation. Terminating him in accordance with the provision of the by-laws of the Association without pointing out his numerous faults and malfeasance in office and with one-half month pay for every year of service in accordance with the Retirement Law was the best and only alternative."

We are not impressed. The reasoning advanced by the private respondent is as puerile as it is preposterous.

The essence of due process is to afford the party an opportunity to be heard and defend himself, to cleanse his name and reputation from any taint. It includes the twin requirements of notice and hearing.^[22] This concept evolved from the basic tenet that one's employment or profession is a property right protected by the constitutional guaranty of due process of law.^[23] Hence, an individual's separation from work must be founded on clearly-established facts, not on mere conjectures and suspicions.^[24]

In light of the foregoing, private respondent's arguments are clearly baseless and without merit. In truth, instead of protecting petitioner's reputation, private respondent succeeded in doing exactly the opposite - it condemned the petitioner without even hearing his side. It is stating the obvious that dismissal, being the ultimate penalty that can be meted out to an employee, should be based on a clear or convincing ground.^[25] As such, a decision to terminate an employee without fully apprising him of the facts, on the pretext that the twin requirements of notice and hearing are unnecessary or useless, is an invalid and obnoxious exercise of management prerogative.

Furthermore, private respondent, in an effort to validate the dismissal of the petitioner, posits the theory that the latter's position is coterminus with that of the Village's Board of Directors, as provided for in its amended by-laws.^[26]

Admittedly, the right to amend the by-laws lies solely in the discretion of the employer, this being in the exercise of management prerogative or business judgment. However this right, extensive as it may be, cannot impair the obligation of existing contracts or rights.

Prescinding from these premises, private respondent's insistence that it can legally dismiss petitioner on the ground that his tenure has expired is untenable. To reiterate, petitioner, being a regular employee, is entitled to security of tenure; hence, his services may only be terminated for causes provided by law.^[27] A contrary interpretation would not find justification in the laws or the Constitution. If we were to rule otherwise, it would enable an employer to remove any employee from his employment by the simple expediency of amending its by-laws and providing that his/her position shall cease to exist upon the occurrence of a specified event.

If private respondent wanted to make the petitioner's position co-terminus with that of the Board of Directors, then the amendment must be effective after petitioner's stay with the private respondent, not during his term. Obviously, the measure taken by the private respondent in amending its by-laws is nothing but a devious, but crude, attempt to circumvent petitioner's right to security of tenure as a regular employee guaranteed under the Labor Code.^[28]

Interestingly, the Solicitor General is of the view that what actually transpired was that petitioner was retired from his employment, considering the fact that in 1992 he was already 70 years old and not terminated.^[29]

While there seems to be a semblance of plausibility in this contention for the matter of extension of service of such employee or official is addressed to the sound discretion of the employer, still we have no doubt that this was just a mere after-thought - a dismissal disguised as retirement.

In the proceedings before the Labor Arbiter, it is noteworthy that private respondent never raised the issue of compulsory retirement,^[30] as a cause for terminating petitioner's service. In its appeal before the NLRC, this ground was never discussed. In fact, private respondent, in justifying the termination of the petitioner, still anchored its claim on the applicability of the amended by-laws. This omission is fatal to private respondent's cause, for the rule is well-settled that matters, theories or arguments not brought out in the proceedings below will ordinarily not be considered by a reviewing court, as they cannot be raised for the first time on appeal.^[31]

Undaunted, private respondent now asserts that the instant petition was filed out of time,^[32] considering that the assailed NLRC decision was received on June 28, 1995 while this petition was filed on September 20, 1995. At this juncture, we take this opportunity to state that under the 1997 Rules of Civil Procedure, a petition for certiorari must now be instituted within sixty days of receipt of the assailed judgment, order or resolution.^[33] However, since this case arose in 1995 and the aforementioned rule only took effect on July 1, 1997 then the old rule is applicable. Since prior to the effectivity of the new rule, a special civil action of certiorari should be instituted within a period of three months,^[34] the instant petition which was filed on September 20, 1995 or two months and twenty-two days thereafter, was still within the reglementary period.

With respect to the issue of the monetary award to be given to the petitioner, private respondent argues that he deserves only retirement pay and nothing more. This position would have been tenable had petitioner not been illegally dismissed. However, since we have already ruled petitioner's dismissal as without just cause and lacking due process, the award of backwages and reinstatement is proper.^[35]

In this particular case, reinstatement is no longer feasible since petitioner was already 70 years old at the time he was removed from his employment. As a substitute thereof, separation pay is generally awarded,^[36] the amount of which must be equivalent to one-month salary for every year of service.^[37]

With respect to the amount of backwages which, incidentally is different from separation pay,^[38] it is now settled that an illegally dismissed employee is entitled to its full payment as long as the cause of action accrued after March 21, 1989.^[39] Considering that petitioner was terminated from the service on December 9, 1992, which is after March 21, 1989, he is entitled to full backwages from the time of the illegal dismissal without any qualification or deduction.^[40]

As regards the issue of retirement pay, private respondent asserts that the correct amount should be one-half (1/2) month salary for every year of service. This time we agree with private respondent's contention. The pertinent law is Article 287 of the Labor Code, as amended by Republic Act No. 7641, which reads:

"Art. 287. Retirement. - Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.

In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided, however, That an employee's retirement benefits under any collective bargaining and other agreements shall not be less than those provided herein.

In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.

x x x            x x x            x x x."

With respect to the issue that petitioner, being a managerial employee, is not entitled to thirteenth month pay, Memorandum Order No. 28, as implemented by the Revised Guidelines on the Implementation of the 13th Month Pay Law dated November 16, 1987, provides:

"Section 1 of Presidential Decree No. 851 is hereby modified to the extent that all employers are hereby required to pay all their rank and file employees a 13th month pay not later than December 24 of every year."

Clearly, therefore, the foregoing exempts managerial employees from this benefit. Of course, this does not preclude an employer from granting other bonuses, in lieu of the 13th month pay, to managerial employees in its discretion.

Finally, we cannot simply ignore private respondent's malicious scheme to remove petitioner from his position which is contrary to good customs and effected in an oppressive manner, thus warranting an award of moral and exemplary damages to the petitioner.^[41] Moreover, since petitioner was forced to litigate and incur expenses to protect his right and interests, he is entitled to attorney's fees.^[42]

WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The NLRC decision dated June 15, 1995 is hereby REVERSED and SET ASIDE. Private respondent Philamlife Village Homeowners Association is ORDERED: (1) to pay petitioner Enrique Salafranca separation pay equivalent to one month salary for every year of service; (2) to pay his full backwages in accordance with our ruling in Bustamante v. NLRC;^[43] (3) to pay his retirement pay in accordance with Article 287 of the Labor Code, as amended by Republic Act No. 7641, (4) to pay moral and exemplary damages in the amount of twenty thousand (P20,000.00) pesos and ten thousand (P10,000.00) pesos, respectively;^[44] and (5) to pay ten (10%) percent of the total amount due to petitioner, as attorney's fees. Consequently, the respondent NLRC is ORDERED to COMPUTE the total monetary benefits awarded in accordance with this decision and to submit its compliance thereon within thirty (30) days from notice of this decision.

SO ORDERED.

Kapunan, Purisima, and Pardo, JJ., concur.

---

^[1] Annex "B," "C," "D" of Petition, pp. 26-29.

^[2] Ibid., p. 59.

^[3] Id., p. 61.

^[4] Id., p. 30.

^[5] Id., pp. 35-36.

^[6] Id., pp. 137-144.

^[7] Rollo, pp. 174-186.

^[8] Id., p. 10.

^[9] Comment, Rollo, pp. 254-255.

^[10] Id., p. 255.

^[11] Philippine School of Business Administration (PSBA)-Manila v. NLRC, 261 SCRA 189 (1996).

^[12] San Miguel Jeepney Service v. NLRC, 265 SCRA 38 (1996).

^[13] Manuel v. N.C. Construction Supply, 282 SCRA 326 (1997); Shoppers Gain Supermart v. NLRC, 259 SCRA 411 (1996).

^[14] ART. 282. Termination by employer. -- An employer may terminate an employment for any of the following causes:

(a)  Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b)  Gross and habitual neglect by the employee of his duties;

(c)  Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d)  Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and

(e)  Other causes analogous to the foregoing.

ART. 283. Closure of establishment and reduction of personnel. -- The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

^[15] Brahm v. NLRC, 280 SCRA 828 (1997); Jamer v. NLRC, 278 SCRA 632 (1997).

^[16] Sanyo Travel Corporation v. NLRC, 280 SCRA 129 (1997).

^[17] Pepsi Cola Bottling Co. v. NLRC, 210 SCRA 277 (1992).

^[18] Comment, Rollo, p. 189.

^[19] Rollo, pp. 73-77.

^[20] People v. Ragay, 277 SCRA 106 (1997).

^[21] RDS Trucking v. NLRC, G.R. No. 123491, August 27, 1998.

^[22] MGG Marine Services, Inc. v. NLRC, 259 SCRA 664 (1996).

^[23] JMM Production and Management, Inc. v. Court of Appeals, 260 SCRA 319 (1996).

^[24] Philippine Long Distance Telephone Company v. NLRC, 276 SCRA 1 (1997).

^[25] Pantranco North Express, Inc. v. NLRC, 252 SCRA 237 (1996).

^[26] Rollo, p. 60.

^[27] Article XIII, Section 3 of the 1987 Constitution; San Miguel Jeepney Services v. NLRC, 265 SCRA 35 (1996).

^[28] Article 279, Labor Code, as amended.

^[29] Memorandum, Rollo, pp. 362-363.

^[30] Position Paper, Rollo, pp. 66-71.

^[31] Philippine Airlines, Inc. v. NLRC, 259 SCRA 459 (1996).

^[32] Rollo, p. 194.

^[33] Sec. 4, Rule 65, 1997 Rules of Civil Procedure.

^[34] People's Security, Inc. v. NLRC, 226 SCRA 146 (1993); PAL Employees Savings and Loan Association, Inc. v. NLRC, 260 SCRA 758 (1996).

^[35] Judy Philippines, Inc. v. NLRC, G.R. No. 111934, April 29, 1998.

^[36] Escobin, et al. v. NLRC, G.R. No. 118159, April 15, 1998.

^[37] International Pharmaceuticals, Inc. v. NLRC, G.R. No. 106331, March 9, 1998; Iriga Telephone Company, Inc. v. NLRC, G.R. No. 119420, February 27, 1998.

^[38] Indophil Acrylic Mfg. Corp. v. NLRC, 226 SCRA 723 (1993).

^[39] Highway Copra Traders v. NLRC, G.R. No. 108889, July 30, 1998; Ala Mode Garments, Inc. v. NLRC, 268 SCRA 497 (1997).

^[40] Bustamante v. NLRC, 265 SCRA 61 (1996), Lopez v. NLRC, G.R. No. 124548, October 8, 1998.

^[41] Zamboanga City Electric Cooperative, Inc. v. NLRC, 243 SCRA 47 (1995); Lopez v. Javier, 252 SCRA 68 (1996).

^[42] Rasonable v. NLRC, 253 SCRA 623 (1996).

^[43] Supra, note 40.

^[44] Quijano v. NLRC, G.R. No. 126561, July 8, 1998.