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?

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. 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
  2. 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
  3. 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
  4. 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
  5. AvatarPepito

    Hi just want to ask kung pede po b ako magfile ng case against sa company namin regarding my status. I was suspended for 30 because i have a pending case with h.r. My suspension started sept 02, 2016. We already had a hearing about my case, then the management just inform to wait for the result or decicion about it. They get my, phone number, my home adress and my personal email address, they informed that I will receive an email regarding all the minutes of the hearings that we had and of course their decicion regarding my case, my 30 days suspension will be ended on Oct 02, but still up until now I’m not receiving anything from the company regarding my status. Until just today, one of my officemates informed me that my status in the office is already RESIGNED EMPLOYEE. Do I have the chance of filing any case for my company about this. Please help me, I need some legal advises.

    Reply
  6. AvatarAug

    Good day . I would like to know to whether what right do i have against manager who mis treatment employees like shouting or yelling or gossiping someone in the working area where customers in the convenience store can hear and see it .

    Reply
  7. AvatarEOM

    I just want to consult I had an admin hearing because of absence and I was suspended for it for 3 days after the admun hearing
    Now I recived another invitation for admin hearing for dismissal pero ang date ng “offence”na naging basis nila for dismissal are offences of absence BEFORE the first admin hearing. So was thinking kung ang ginawa nilang basis for dismissal is an absence before the first admin hearing and not after the 1st admin hearing parang mali kasi anong silbi nung cvommitment ko not to be absent nung admin hearing kung ang hinugot nila for dismissal is an absence before the first admin hearing. Is what they’re doing legal?

    Reply
  8. AvatarMEGGO

    Good day I would just like to consult
    I would just like to ask, I had an admin hearing with H.R. First week of october for my absences incurred sept. It was an admin hearing for suspension.served my suspension mid oct after the admin hearing.last week got a notice for admin hearing for dismissal pero it for an absence incurred september which is an incident of absence before the first admin hearing wherein I was suspended.can they terminate you for an offence that incurred before the 1st admin hearing?
    Diba po the reason for the admin hearing is a chance for you not to commit the same offence pero bakit ang hinugot nila for dismissal is an offence before the first admin hearing?so parang nawalan ng saysay yung commitment ko during not to commit the same offence during the first admin hearing ? Is that still legal process?

    Reply
  9. Avatarevet

    hi,

    I would like to seek advice from you, this case is from my co worker.

    He receive an NTE dated Nov 17, 2016 commiting theft and misappropriate of company funds dated November 14, 2016 but he tender his resignation November 16, 2016. But still he is willing to reply the NTE recieved.

    1.) He is asking if the NTE he receive has value, even if the effectivity of his resgnation is Nov 18?
    2.) He wants to know on what is his next steps?

    thanks
    evet

    Reply
  10. AvatarGrace

    Gulity po ako sa memo sa akin and i was terminated during my Preventive Suspension period. Effective immediately ung termination ko. May habol pa po ba ako?

    Reply
  11. AvatarJhona

    I would like to know what to do if my case was not address properly by the H.R department of the company. They served Due Process Form to the accused persons to explain their side but there’s no update for about a month already. I spoke to the H.R staff 4 times already on a different dates to follow up my case, someone told me that she is just in a meeting when I send her a message and but never talk to me again to provide updates. My situation is getting worst because of the traumatic experience that I had last month, I’m not comfortable anymore to work with them because of their unprofessional actions against me. The accused person is one of the teacher’s pet here in our company that is why a lot of delaying tactics happened just for me to let go of the situation and forget about everything. Please give suggestions what to do. Thanks!

    Reply
  12. AvatarNorger

    Nag absent po aq ng isang araw at tumawag s leader q n masama ang pakiramdam q, nong pumasok po aq di q n file ang leave ko binigyan po ako ng boss ko ngmemo n 14 days suspension possible po b mag cause ito ng termination laban sa akin?

    Reply
  13. Avatarjason.

    hi ….. just a question lang po.
    kinausap po ako nang mga boss regarding sa “case” ko ….. im aware that this is hearing because they already told me 1 week before. but i attend the hearing without any counsel or representative on my behalf. of course any defense na sasabihin ko eh may sagot din sila.

    wala po akong kasamang representative that time pde ko po ba na maging laban ito sa kanila ?

    Reply
    1. AvatarRich

      If you willingly did not bring any counsel during the hearing, then you basically waived your right to counsel and you cant used this as basis for possible legal action.

      Reply

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