Published — June 29, 2022
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.
After reading “What are the procedural requirements in dismissing an employee based on just causes?”, read also “May an employer dismiss an employee for any reason without notice?”
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In all cases of termination of employment, the standards of due process shall be substantially observed.
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For termination of employment based on just causes as defined under the Labor Code, 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.
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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 dismissing an employee, the employer has the burden of proving that the former worker has been served two notices: (1) Show-Cause Notice or the Notice to Explain which would apprise him of the particular acts or omissions for which his dismissal is sought, and (2) Notice of Termination which would inform him of his employer’s decision to dismiss him.” (Electro System Industries Corporation v. NLRC, G.R. No 165282, October 05, 2005)
The law says:
The procedure for terminating an employee is found in Book VI, Rule I, Section 2(d), of the Omnibus Rules Implementing the Labor Code:
(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:
For termination of employment based on just causes as defined in Article 282 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. (Electro System Industries Corporation v. NLRC, G.R. No 165282, October 05, 2005)
Service of the First Written Notice
Service of the first written notice or the Show-Cause Notice contains the specific grounds or causes for termination against the employee, and a directive which gives the employee concerned the opportunity to submit his written explanation within the reasonable period of five (5) calendar days from receipt of such notice to enable him to prepare adequately his defense.
The purpose of the Show-Cause Notice or the Notice to Explain is likewise aimed for the employee to study the accusation against him, to enable him to consult a lawyer or union officers, to gather evidence in support of his defense.
The Show-Cause Notice shall contain a detailed narration of facts and the circumstances that will serve as the basis for the charges against such employee, and must specifically cite the company rules, if any, that are violated or among the just causes as specified under Art. 297 of the Labor Code of the Philippines.
Opportunity to be Heard
After the Show-Cause Notice has been served to the employee concerned, the employer shall afford such employee the opportunity to be heard by scheduling and conducting a hearing or conference. In such hearing or conference, the employee shall be given the opportunity to explain and clarify his defenses corresponding to the charges against him, to present evidence in support of his defense, and to rebut the evidence presented against him by the management.
Service of the Second Written Notice
After careful determination that the penalty of termination of employment is justified, the employer shall serve the employee concerned a written Notice of Termination. Such Notice of Termination shall indicate that all circumstances involving the charge have been carefully considered and that grounds have been established to justify the severance of this employment.
Jurisprudence says:
In the case of Unilever Philippines, Inc. v. Rivera (G.R. No. 201701, June 03, 2013), the Supreme Court laid down the guidelines on how to comply with procedural due process in terminating an employee, 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.
In the case of Eliseo Tan v. NLRC (G.R. No. 128290, November 24, 1998), the Supreme Court held that “the first notice must state that dismissal is sought for the act or omission charged against the employee, otherwise, the notice cannot be considered sufficient compliance with the rules.”
In the case of Ernesto Maquiling v. Philippine Tuberculosis Society, Inc. (G.R. No. 143384, February 04, 2005), it was stressed that the first notice must inform outright the employee that an investigation will be conducted on the charges particularized therein which, if proven, will result to his dismissal. Such notice must not only contain a plain statement of the charges of malfeasance or misfeasance but must categorically state the effect on his employment if the charges are proven to be true. The rationale for this rule was explained by the Supreme Court as follows:
“This notice will afford the employee an opportunity to avail all defenses and exhaust all remedies to refute the allegations hurled against him for what is at stake is his very life and limb his employment. Otherwise, the employee may just disregard the notice as a warning without any disastrous consequence to be anticipated. Absent such statement, the first notice falls short of the requirement of due process. One’s work is everything, thus, it is not too exacting to impose this strict requirement on the part of the employer before the dismissal process be validly effected. This is in consonance with the rule that all doubts in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, shall be resolved in favor of labor.”
Is the conduct of a formal hearing or conference to give the employee the opportunity to be heard mandatory?
No, a formal hearing or conference becomes mandatory only when requested by the employee in writing; when substantial evidentiary disputes exist; when a company rule or practice requires it; or when similar circumstances justify it. (Perez v. Philippine Telegraph, G.R. No. 152048, April 07, 2009)
When an employee admits the acts complained of, no formal hearing is necessary. (Panuncillo v. CAP PHL, Inc., G.R. No. 161305, February 09, 2007).
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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