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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
SECTION 2. Security of Tenure. — ….
For termination of employment based on just causes as defined in Article 288 of the Labor Code:
(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
In the case of C.P. Reyes Hospital and Angeline M. Reyes vs. Geraldine M. Barbosa, Geraldine M. Barbosa was terminated by C.P. Reyes Hospital due to her alleged unsatisfactory performance including attendance records that reflect her failure to meet the reasonable standards set by the Hospital.
Geraldine M. Barbosa was still a probationary employee when the Hospital decided to terminate her. Therefore, did the Hospital violate Barbosa’s right to procedural due process when it failed to comply with the two-notice rule in dismissing Barbosa?
The answer is yes, because the two-notice rule also applies to probationary employees.
The Hospital grossly violated Barbosa’s right to due process because it failed to provide Barbosa two notices before it decided to terminate her. The Supreme Court emphasized that the standards of due process for termination of regular employees (or the “two-notice rule”) equally apply to probationary employees in cases of termination for just cause. Thus, the rules state: :
SECTION 2. Security of Tenure. — ….
For termination of employment based on just causes as defined in Article 288 of the Labor Code:
(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
The evidence on record shows that C.P. Reyes Hospital served Barbosa a written notice dated November 27, 2013, or the first notice, directing her to explain her absences without leave on November 4, 7, and 8, 2013. Barbosa, on the other hand, immediately sent her explanation the following day. No notices were served regarding the absences on the other dates.
The November 29, 2013 termination Letter issued to Barbosa referred to her “attendance records” as one of the grounds for her termination, with no specific dates of absences mentioned. Thus, as regards her November 4, 7, and 8 absences, it appears that a second notice, the termination notice, was served on her. However, as found by the CA, Barbosa was able to satisfactorily explain her absence on those dates.
Regarding Barbosa’s other absences alleged by C.P. Reyes Hospital, given the fact that no first notice was served, it appears to this Court that the ground was used by C.P.Reyes Hospital merely as an afterthought, at the very least, in order to strengthen its position as regards Barbosa’s termination. It bears emphasizing that C.P. Reyes Hospital relied on the total number of Barbosa’s absences in claiming that she was guilty of frequent absenteeism. It argued that she was absent 12 days out of the 72 days she worked. Thus, for failing to issue a first notice on the other absences of Barbosa, C.P. Reyes Hospital failed to observe procedural due process in terminating her employment.
To reiterate, in case the dismissal of the probationary employee is for a just cause, the employer is required to serve two notices: the first, specifying the ground/s for termination and giving the employee the opportunity to explain, and the second, informing the employee of the decision of the employer to terminate their employment.
In this case, C.P. Reyes Hospital clearly did not issue a first notice regarding Barbosa’s absences, except for the November 4, 7, and 8 absences, which Barbosa was able to satisfactorily explain. Thus not only was Barbosa’s dismissal on this ground (absenteeism) procedurally defective, but it was also without substantive basis, as explained earlier. C.P. Reyes Hospital clearly failed to observe substantive and procedural due process in dismissing Barbosa due to her supposed absences. Thus, her termination on this ground is illegal.
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 0917-5772207/ 09778050020.
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