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
- When Travel Pass is Needed for Interzonal Travel during Community Quarantine - June 1, 2020
- Can Companies Compel Employees to Work during the General Community Quarantine (GCQ) and Impose Disciplinary Sanctions - May 29, 2020
What is the duration of a violation from a Civil Service Employee of the Philippines before it can be filed for disciplinary action?
For example Tardiness how long should it take to receive any notice for disciplinary action?
Hi,
I have been placed under preventive suspension for an incident that took place last November 2016. My co-worker filed a complaint against me last May 9 and in May 29 I was served a preventive suspension. I understand that an employer may “may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.” My questions are:
(1) is it possible to challenge my supposed “imminent threat” to the workplace if the incident happened last November and the co-worker is still able to go to work and that why did it take 20 days to put me under suspension if my presence posed a threat to the company?
(2) Can I resign under preventive suspension? I was asked to attend a hearing and submit my response last June 5 and I did, admitting to the offense, but a day prior to that I submitted my letter of resignation. Now I have not received any acknowledgement of receipt of my resignation since I last sent it 7 days ago and the HR manager is insisting that: (a) she cannot accept my resignation because she is not my superior, but I have emailed my superior the letter since I am not allowed to enter company premises; (b) they will have to finish the investigation before responding to my resignation.
Will appreciate your thoughts on what my next course of action could be? I don’t intend to return to the company and just want to carry on looking for new employment
We had a shortage amounting to 85,000 last february, after preventive suspension for over 1 month our employer decided to terminate our employment due to loss of trust and confidence. We already tried to settle this before the suspension. Our boss decided to divide it to all on duty staff and she decided to deduct it to our salary for 2 cut off. During our suspension, she returned all our payment and our salary. Then one of the staff invite us to go to our office to receive our letter of termination. Today, I received a letter that his attorney were asking us to settle the 85,000 within 5 days or they will file a case. They just chose us, 3 senior staff to settle this.
May habol po ba kami kung sakali? During my shift, wala pong nakitang illegal activity nung pinareview sa cctv. Saka gano po kami katagal nila pwede takutin sa kaso? Simula umpisa po kasi ayun na ang sinasabi ng atty nya pero sa resolution na ginawa dismissal lang naman po. We worked in a VIP Casino Junket and our boss our not paying overtime and holidays.
Also that time, nagkamali ng record ung night shift may hindi naipasok sa rolling na 87,000,000 sa account ng player so she enjoyed the 1.25% commission of that. Kaya ang buong akala namin yung mali na shortage ay hindi nya na sisingilin.
Good morning, I just would like to ask if I can refuse an admin hearing if I have already & willfully admitted in my Notice to Explain my fault in violating one of our company’s code of conduct (punishable by 8-10 day suspension up to dismissal depending on the gravity of the offense)? I just would like to spare myself the stress and trauma that it may bring about to my 50-year old body.
After receiving an NTE without a notation that the employee is suspended. Is it legal for HR to advise the employee not to go to work because in the system the employee is not yet reinstated/reactivated.
Hi Attorney,
I just have a couple of queries.
Is it fair if my employer first advised me to go on LOA until such time that I get to have my nbi clearance submitted( my clearance got delayed because of a f*ck up in the satellite office) then when I got back they issued me a Final Written Warning?
Also, i got termed from my last employer because they told me that I have violated their attendance policy. I was already at my final written warning and then my wife(we are married I am an m1) got rushed to the hospital. I had to attend to her and even called the office about what happened. I have all the necessary documents at hand proving that she was confined and was discharged soon after.
I went back to the office and my manager told me to submit an NTE in which i did together with the medical certificate and discharge papers of my wife. They never told me of the process. I was thinking that there would be a hearing then a deliberation but there was none. After a week they asked me to attend a meeting. Without any warning whatsoever they terminated my employment during that meeting. They are asking me to sign an acknowledgement form which i refuse since I dont think they followed due process.
I want to file this as a case in NLRC – I just want to ask first if I have any chance on being treated fairly.
Thanks for your advice,
Being HR what are the main reason why employees leaves Business process outsourcing companies?
Binigyan ako ng NTE (Notice of explanation) kasi banging of mouse and being an argumentative sa customer. Ang masaklap hindi muna nila pinakinig sakin yung calls. Tapos may mga dinagdag pa na may escalated calls daw ako na agent related eh hindi ko naman matandaan na may coaching ako tungkol dun. Ang dami pa nilang nilagay na reasons dun to terminate me. Nagkaroon ng hearing kaso hindi kopa nalalaman ang result. Ilalaban ko yun kung sakaling iterminate ako. Pero gusto ko munang malaman kung valid ba yung ginawa nila? Kasi wala akong coaching para sa mga escalated calls na agent related at hindi man lang nila pinakinig sakin yung calls kona argumentative daw ako.
ako po ay isang call center employee na tinerminate ng company ko kanina lang dahil sa isang reklamo na ako daw po ang lahat na may sala. inamin ko naman yunh pagkakamali ko pero sa hearing di naman nila ako tinanong ng maigi. naniniwala po ako na hindi po makatarungan ang ginawa nilang ito sa akin dahil sa yung mga puntong niraise ko sa explanation letter ay isinantabi nila at ayun sa desisyon ay ako daw lahat ang may sala. kanina po sa office ng hr ay minamadali po akong papirmahin nung notice of termination tumanggi po ako at sabi ko may karapatan akong sumangguni sa mga nakakakaalam ang sabi po nung hr officer nung una ayaw daw po niyang magintay kase may petsa na nakasaad na sa notice. iginiit ko ang aking karapatan at di ko pinirmahan alinman sa dalawang kopya nila. sana ay matulungan niyo ako sa bagay na ito.
Sir,
I would like to know if it is still legal to served a NTE to an employee if the incident happened more than 30 days?
Thank you for looking on this matter.