Published — July 6, 2017
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
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.
Related Topic: Frequently Asked Questions on Employee Suspension and Termination of Employment
While it is a State policy to afford full protection to labor, the law nonetheless protects the employer’s right to expect from its employees not only good performance, adequate work, and diligence, but also good conduct and loyalty. In fact, the Labor Code of the Philippines does not excuse employees from complying with valid company policies and reasonable regulations for their governance and guidance [See: G.R. No. 169750].
There are a variety of penalties that an employer may impose upon an erring employee as a consequence of his misbehavior or misdeed, from mere warnings, admonition, censure, to suspension, and even demotion in rank and/or salary. For the gravest of offenses, however, even the supreme penalty of termination of employment would be justified. The employer may impose any of such penalties as he may deem fit, provided that the gravity of the penalty to be imposed should be commensurate to the offense committed by the concerned employee, and that it should be imposed only upon compliance with the requirements of due process.
Though the law recognizes the right of employers to terminate an employment, this management prerogative must not curtail the basic right of employees to security of tenure. There must be a valid and lawful reason for terminating the employment of a worker. Otherwise, the dismissal is illegal and would be dealt with accordingly [See: G.R. No. 182397].
Security of tenure simply means that an employer can terminate employment only if there is just or authorized cause as may be provided by law. Article 297 of the Labor Code enumerates the just causes for termination, which are:
- Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
- Gross and habitual neglect by the employee of his duties;
- Fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative;
- 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
- Other causes analogous to the foregoing.
If an employee is dismissed without just cause, his dismissal shall be illegal and the employee would be entitled to reinstatement to his former position, without loss of seniority rights and other privileges, with payment of full backwages inclusive of allowances and other monetary benefits computed from the time he was illegally dismissed up to the time of his actual reinstatement.
It is not enough that an employee was dismissed for cause. It is also necessary that the termination of his employment was done lawfully, in observance of due process. Thus, in exercising disciplinary authority over employees, the following procedure set forth in the case of King of Kings Transport, Inc. vs. Mamac [See: G.R. No. 166208] should be observed by employers in terminating an employment.
- First written notice (notice to explain) – To be served on the employee. It should contain the specific causes or grounds for termination against him, and a directive that the employee is given the opportunity to submit his written explanation within a reasonable period. “Reasonable opportunity” means every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense. This should be construed as a period of at least 5 calendar days from receipt of the notice to give the employee an opportunity to study the accusation against him, consult with a lawyer, gather data and evidence, and decide on the defenses he will raise against the complaint. Moreover, in order to enable the employee to intelligently prepare his explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under the Labor Code is being charged against the employee.
- Conduct of a hearing or conference – After serving the first notice, the employer should schedule and conduct a hearing or conference wherein the employee will be given the opportunity to: (a) explain and clarify his defenses to the charge against him; (b) present evidence in support of his defenses; and (c) rebut the evidence presented against him by the management. Moreover, the parties could even use this conference or hearing as an opportunity to come to an amicable settlement.
- Second written notice (notice of termination) – After determining that termination of employment is justified, the employer shall serve the employees a written notice of termination indicating that: (a) all circumstances involving the charge against the employees have been considered; and (b) grounds have been established to justify the severance of their employment.
Where the dismissal is for a just cause, failure to observe procedural due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee by way of damages for the violation of his statutory rights. The indemnity to be imposed should be stiffer to discourage the abhorrent practice of “dismiss now, pay later,” which the law seeks to deter. The sanction should be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special consideration the gravity of the due process violation of the employer [See: G.R. No. 158693].
Since the law considers one’s employment as property right that cannot be taken away without due process, it would be for the best interest of employers to comply with proper procedures, especially on enforcing discipline at work. Though an employer is allowed to weed out noxious elements from his business, an employee’s misdeed should be dealt with properly and legally, and not through the employer’s own wrongful ways and means.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding employment disciplinary procedures, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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