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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:
The employer must furnish the employee with two written notices before the termination of employment can be effected: (1) the first apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the second informs the employee of the employer’s decision to dismiss him. (Foodbev International vs. Noli Ferrer, G.R. No. 206795, September 16, 2019)
The first written notice should contain:
(i) The specific causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and company policies, if any;
(ii) 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.
(iii) A directive that the employee is given the opportunity to submit a written explanation within a reasonable period. (DOLE Department Order No. 147, series of 2015)
The Two-Notice Rule
Under the 1987 Constitution, consistent with labor laws and jurisprudence, every employee is entitled to security of tenure (Section 3, Article XIII, 1987 Constitution). This means that an employer shall not dismiss an employee except for a just or authorized cause and only after due process is observed. (Distribution & Control Products, Inc. v. Jeffrey Santos, G.R. No. 212616, July 10, 2017)
A guiding principle for the application of just and authorized causes of termination under DOLE Department Order No. 147, series of 2015 (DOLE D.O. 147-15) is that:
“The workers’ right to security of tenure is guaranteed under the Philippine Constitution and other laws and regulations. No employee shall be terminated from work except for just or authorized cause and upon observance of due process.” (Section 1, Rule I-A thereof)
In the case of Redentor Agustin v. Alphaland Corporation, et al. (G.R. No. 218282, September 09, 2020), the Supreme Court ruled that the termination of the services of an employee requires the observance of the two-fold due process, to wit:
“Dismissal of regular employees by the employer requires the observance of the two-fold due process, namely: (1) substantive due process; and (2) procedural due process.
Substantive due process means that the dismissal must be for any of the: (1) just causes provided under Article 297 of the Labor Code or the company rules and regulations promulgated by the employer; or (2) authorized causes under Article 298 and 299 thereof.
Procedural due process means that the employee must be accorded due process required under Article 292(b) of the Labor Code, the elements of which are the twin-notice rule and the employee’s opportunity to be heard and to defend himself.”
The Two-Notice Rule
In cases of termination of employment for offenses and misdeeds by employees, that is, for just causes under the Labor Code, employers are required to adhere to the so-called two-notice rule, or twin-notice rule.
In the case of King of Kings Transport, Inc. et al. v. Santiago Mamac (G.R. No. 166208, June 29, 2007), the Court outlined what should be considered in terminating the services of employees, to wit:
(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their 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 employees. 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 Art. 282 is being charged against the employees.
(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. (Emphasis supplied.)
The two-notice rule applies at that stage when an employer has previously determined that there are probable grounds for dismissing a specific employee. The first notice implies that the employer already has a cause for termination. The employee then responds to the cause against him or her.
The First Written Notice
The first written notice, often called “Show-Cause Notice” or simply “Notice to Explain”, apprises the employee of the charge against him.
Under the Omnibus Rules Implementing the Labor Code:
“For termination of employment based on just causes as defined Article [292] of the Labor Code:
(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee a reasonable opportunity within which to explain his side.
(ii) xxx” (Section 2, Rule I, Book VI)
Under DOLE D.O. 147-15:
(a) “The first written notice should contain:
- The specific causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and company policies, if any;
- 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.
- A directive that the employee is given the opportunity to submit a written explanation within a reasonable period.
“Reasonable period” should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation, consult or be represented by a lawyer or union officer, gather data and evidence, and decide on the defenses against the complaint.”
(b) After serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 299 (b) of the Labor Code, as amended.
xxx”
Formal Hearing NOT Required in Illegal Dismissal Cases
It bears emphasis that a formal hearing is not necessary so long as the employee was granted an opportunity to be heard. In other words, a formal hearing is not necessary to ensure that procedural due process is observed, as long as the employee is given ample opportunity to be heard.
In the case of Philippine Long Distance Telephone Company (PLDT) v. Cecilio Domingo (G.R. No. 197402, June 30, 2021), the Supreme Court explained:
“In termination proceedings of employees, procedural due process consists of the twin requirements of notice and hearing. The employer must furnish the employee with two written notices before the termination of employment can be effected: (1) the first apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the second informs the employee of the employer’s decision to dismiss him. The requirement of a hearing is complied with as long as there was an opportunity to be heard, and not necessarily that an actual hearing was conducted.” (Emphasis supplied.)
Moreover, the Supreme Court held that:
“Jurisprudence is clear that a formal hearing is not necessary as long as the employee is given an ample opportunity to be heard. xxx
Article 277(b) of the Labor Code provides that, in cases of termination for a just cause, an employee must be given “ample opportunity to be heard and to defend himself.” Thus, the opportunity to be heard afforded by law to the employee is qualified by the word “ample” which ordinarily means “considerably more than adequate or sufficient.” In this regard, the phrase “ample opportunity to be heard” can be reasonably interpreted as extensive enough to cover actual hearing or conference. To this extent, Section 2(d), Rule I of the Implementing Rules of Book VI of the Labor Code is in conformity with Article 277(b).
Nonetheless, Section 2(d), Rule I of the Implementing Rules of Book VI of the Labor Code should not be taken to mean that holding an actual hearing or conference is a condition sine qua non for compliance with the due process requirement in termination of employment. The test for the fair procedure guaranteed under Article 277(b) cannot be whether there has been a formal pre-termination confrontation between the employer and the employee. The “ample opportunity to be heard” standard is neither synonymous nor similar to a formal hearing. To confine the employee’s right to be heard to a solitary form narrows down that right. It deprives him of other equally effective forms of adducing evidence in his defense. Certainly, such an exclusivist and absolutist interpretation is overly restrictive. The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.
Significantly, Section 2(d), Rule I of the Implementing Rules of Book VI of the Labor Code itself provides that the so-called standards of due process outlined therein shall be observed “substantially”, not strictly. This is a recognition that while a formal hearing or conference is ideal, it is not an absolute, mandatory or exclusive avenue of due process.” (Emphasis supplied.)
Key Components of the First Written Notice
- Notice of Charge or Offense – The first written notice to be served on the employee should contain the specific causes or grounds for termination against them.
- Basis of the Charge or Offense – The first written notice must contain a narrative of facts which led to the charge against the employee.
- Directive to Answer – The first written notice should also contain a directive that the employee is given the opportunity to submit his/her written explanation within a reasonable time.
- Reasonable Period within which to Response – The directive to answer must contain a specific or determinable period of time, usually five (5) days from receipt of the first written notice.
- Ample Opportunity to be Heard – The employer must afford the employee ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative. The employer may also conduct an administrative hearing to further give the employee such opportunity.
In case there is a determination that termination of employment is justified, the employer concerned shall serve the employee a second written notice. The second written notice, also called the “Notice of Decision” or “Notice of Termination”, should indicate that the circumstances involving the charge against the employee have been considered and that the grounds have been established to justify the severance of their employment.
Question: Does a verbal appraisal of the charges against an employee be considered as sufficient notice compliant with procedural due process of termination of employment?
Answer: NO. A verbal appraisal of the charges against an employee does not comply with the first notice requirement. Consultations or conferences are not a substitute for the actual observance of notice and hearing.
Moreover, the employee’s written explanation does not excuse lack or complete absence of the first notice. (King of Kings Transport, Inc. et al. v. Santiago Mamac, G.R. No. 166208, June 29, 2007)
Related Article/s:
Due Process in Labor Proceedings
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