Due Process in Termination and Disciplinary Actions; Minimum Period for Reply to Show-Cause Notice

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?

Period to Submit Reply Show Cause Notice Due Process Philippines

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.

Atty.Fred

101 thoughts on “Due Process in Termination and Disciplinary Actions; Minimum Period for Reply to Show-Cause Notice

  1. Avataranna

    What happens if an employee (designation is HR/admin,status probationary) is given an NTE (notice to explain) regarding behavioral attendance&tardiness issues fails to acknowledge and instead counter reacted with an immediate resignation letter?
    Chat Conversation End

    Reply
  2. AvatarSarila

    Hi,

    Hope i can find an answer here.

    I am currently working in BPO company.
    I was suspended for 30 days for a reason that i comitted a terminable offense. They said that what i did w/c is “saving a credit card info of a customer” is a terminable offense. Wala po kami o akong information about dun. Hindi rin po kami maayos na nainform about sa policy na un at wala cia sa contrata. Ngaun halos mag iisang buwan na wala pa rin po kaming update mula sa kanila at gusto ko po sana malaman kung tama ba na eterminate ang isang empleyado sa kasalanan na hindi naman sila well informed.

    Reply
  3. AvatarEmerita S.

    When you seem to commit an office like tardiness during Audit Season, then you after the Audit Season you have received a 6 month assessment of your reporting time to office; is it right and lawful? What is the minimum required time in the office or by the HR to issue a memo on tardiness?

    For Recap, the Accounting Team has lost their Accounting Dept. Head and as a result they were all the ones who face the Auditors and work midnights, overnights and even weekends with no restdays not even paid a a full overtime pay…

    Reply
  4. AvatarFlorante Jr.

    I only want to ask if the timeframe for the issuance of termination notice was still inclusive or valid in the right to due process of an employee if the notice was only issued after four months upon the violation of the said CRR/Company Rules and Regulation..?

    Reply
  5. AvatarDesiree Joy

    Training po ako and i received nte bec im absent. They give me 24 hours to explain and nakipagusap po ako na it should be 5 days para po ma depensahan ko ung mga grounds na inindicate nila sa nte. Pinagsign po nila ako without discussing kung para saan yung nte. Nagdemand po ako ng copy kase ang alam ko before you sign it dapat may explanation ka. Tapos pinalitan nila ung 24hours ng 5 days for me to explain in written on the same paper.ngtataka lang po ako after i received my copy wala pong naka pirmang hr man lng. Now after 2 days they decide n daw po na i terminate ako eh hindi pa po tapos ung 5 days e, and wala parin po ung explanation ko na ipapasa ko po ng 4th day sana. Tama po ba yung ginawa ng employer ko sa akin. Please help po. Ty

    Reply
  6. Avatarcharm

    panu po un hearing kpag naserve n po un NTE nkpag submit n po sy ng explanation and she admit the violations at isa ln po un nag contest sya. and we put the employee in preventive suspension. what will be the process po ng hearing.
    thanks

    Reply
  7. AvatarRichard

    I am a operation manager here in our company and I handled 3 different areas of warehouses, 1 in southern Luzon and 2 in northern part. To cut it short, my depot supervisors was charged a terminable offense due to “Negligence” because of delay application of our business permit then our warehouse was foreclosed by the municipal government. The task of applying permits is not her task as operation supervisor and she was hired last July 2015, our company did not secure permits since 2013.

    I also received a NTE due to “Negligence” too and subject for termination. I reiterate that I did not violated any company policies ‘cos this is not my job but its admin responsibilities. My senior manager calls me forcing me to resign.

    Base in our Code of Conduct as I review, no “Negligence” offenses indicated, how can they apply sanction since there is no such violation indicate in our COC?

    Please help me to understand my case.

    Thanks and God bless

    Reply
  8. Avatarmajugeb

    hi, what if the ground needs no explanation, such as, sleeping at work, leaving company without authorization, which is accdg to our handbook already a ground fro termination, is the 5 days period still applicable?looking forward to your reply

    Reply
  9. AvatarJia

    Hi, i would like to ask. Can the employer twrminate you just because of an incident report wherein you entered another site of the company you are working for? Thanks

    Reply

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