Practitioners in the field of labor or Human Resources (HR), as well as managers and executive officers of companies, are aware that an employee may only be dismissed for cause. Disciplinary actions, including dismissal from work, must comply with both substantive and procedural due process. Substantive due process requires a valid cause for the dismissal. For procedural due process, outlined below, an interesting question is this: is there a minimum period that must be given to the employee to answer the show-cause notice?
We recently received a query as to how many days should be given to the employee to answer the show-cause notice. We find this query “interesting” because there is no provision in the Labor Code, or its Implementing Rules and Regulations, which spells out a specific period. What’s more interesting, however, is that the Supreme Court has construed this period to mean five (5) days from receipt of the show cause notice. [See updated discussion on Procedural Due Process in Employment Termination Cases]
The procedural requirements, as summarized by the Supreme Court, are:
(A) 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.
(B) 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.
(C) 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.
- Twin-Notice Rule and Procedural Requirements in Employment Termination Proceedings - June 3, 2020
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- Can Companies Compel Employees to Work during the General Community Quarantine (GCQ) and Impose Disciplinary Sanctions - May 29, 2020
Im working in a BPO company, a month ago i was absent due to no transportation cause ECQ pa I inform my supervisor and our manager but the next day when i get back to work they issued an IR giving a written warning due to un reasonable absent, then now again they given me another warning e nag calloff ako 2 hours ahead of time and nag inform ako sa supervisor ko for such reason, is it right?
What if the company issued a NTE sa employee then ang sabe itetext daw po what time ung conference nagpunta sya dun sa office sa mismong araw ng conference pero wala dun ung HR relations nila, nag inform din sya thru text na andun sya sa office pero wala dn reply.. Terminated na ung employee.. Ano na po kaya mangyayare?
Ung issue is alleged theft po. Worth 17k
I hope i can find answer here. Thank you.
May I ask if NTE can be served while agent is on Leave of Absence
Hi. Notice to Explain may be served even if the employee is not at the office.