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. 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.

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

  1. Rodrigo

    Hope this message finds you well.

    Tungkol po sa article na ito, partikular sa ample period to explain na sabi ng supreme court ay 5 days pagkatanggap ng notice to explain. Paano po ang mangyayari kung hindi nag submit ang employee on time at humingi ng two days extension dahil nagpapagawa ng bahay. Ano po ang epekto nito sa kaso? Nararapat po bang pabigyan ang empleyado sa hiling na two days extension to submit? Ang empleyado po ay hindi na pinapasok dahil naka-preventive suspension. Ang kaso po ay alteration ng resibo ng gasolina, hal. ay P300 lamang ang dapat nasa resibo pero ginawa P1,300. Pero kita naman ang alteration dahil hindi binago ang vatabal sales at vat o may pagkakataon na binago ang vatable sales at vat pero hindi balanse sa total sales.
    Maraming salamat po sa tugon.

    Reply
  2. Ana

    Pwede po bang isailalim sa preventive suspention khit walang. Letter na binigay bali sinabi lng ng agency. Legal po ba yon?

    Reply
  3. Kat

    Hi. I just would like to ask who has thefinal authority to recommend and to approve the following;

    1. Reprimand and Warning (Written or Verbal)
    2. Light Suspension (Below Thirty Days)
    3. Heavy Suspension (Above Thirty Days)
    4. Dismissal of Rank-and-File
    5. Dismissal of Supervisor
    6. Dismissal of Junior Manager
    7. Dismissal of Senior Manager
    8. Dismissal of Executives
    9. Dismissal of the HR Manager

    Thank you.

    Reply
  4. J Toral

    Hello,
    I hired a new employee. His probation period is 4 months. On day #5 of his first week he called in sick and has continued to call in sick for the next 8 days. Yesterday I couriered him a request for return to work today. He has not shown up. He is a registered PWD and he claimed he was sick each day. He has not supplied any medical certification (per our company employee handbook). The days he has not arrived are deemed critical leave days so all of his absent days have been unpaid.
    At this stage, do I send him notice of grounds for termination with a date set for a discussion 5 days later
    Thanks for your assistance.

    Reply
  5. Cybelle

    Hi Good day,
    Just want to ask kung kailan ko po dapat makuha final pay ko, it’s almost 3 months na po kasi wala pa rin po dahil daw po dun sa na credit amount ko sa maling account no. pero di nman po nakuha yung pera, nasa bangko lang po di daw po pwede icredit back ng bangko dahil po sa policy nila. tanong ko lang po kung valid reason yung ihohold yung final pay ko dahil po nasa banko pa at inaayos pa nila sa legal. hindi po ako na bigyan ng notice of termination sinabihan po ako na magresign nlng. ginawa ko nman po kasi ayaw ko nman po materminate.

    Reply
  6. jennifer

    ano po ang gagawin ko nakatanggap ako ng NTE May 8, 2019 para sa excessive late ko ng January to April 2019. Pinapirma sa akin ng Boss ko po agad ang copy para ibigay sa HR daw.

    Reply
  7. Manchi

    I was suspended for 15 days provided someone hack to my chat and saw my personal discussion with one of the employee in which I state. that the manager egocentric. does not trust girl to do a job. he like boys.
    they specify i violate a code of conduct. but the discussion is not meant to be public and its just a private conversation. and I’m just expressing how i feel provided no task is being entrusted to me

    is my suspension illegal? HR just wanted to have an hand written explanation on what I meant
    but did not have a proper forum/investigation for it

    Reply
  8. MR

    I was regularized in month of May, the first review was for the first 3 months of stay and my former manager who gave me the review paper stated that it came from the US client- the result is passed (but the US client denied it- so the one who made it was my manager; hocus focus tactic). I worked hard for my attendance for the second review, I was able to get perfect attendance in the month of March and April consecutively. Prior the end of April, I had a salary dispute of more than 2000 pesos and it was not my fault since that I filed everything they said. I confronted the HR and my Manage since my bday was approaching and badly needed cash, and the decision was to credit it onto my next paycheck, I couldn’t do anything about it, because of my frustration, I emailed my client in the US about it (just for awareness). Came my second review, the one who made it was obviously was the client with comment on each section or cited criteria; and was surprised because I failed the second review, due to the admitted fault of the client, he did not imagine that the review went on that way. So it was a mixed of emotions on my end and had to send an email to my client to ask for clarification cause i did not see it that way. We have been using one tool and just imagine how could we possibly hit the target with one tool or even if, they regularized me. The client foresaw my email as an issue, and the client sent an email to the HR to dismiss me after of all what I did for the business, I even worked on my sick times and yet this is what I deserved. My Sr. Leaders did not reply in a timely fashion and i was behind of the new kicked off project. The company did not do anything when the client remove. I felt that they have a personal grudge on me. I received an NTE and I immediately answered it the next day and sent it to them last month, up until now I am waiting for the disciplinary hearing and no one is contacting me.

    Questions-

    1. I was supposed to be enrolled to PIP but it never happened and I found it unfair as a regular employee. Is there any possible way I can do for this?
    2. The client illegally dismissed me due to my clarification and its my right to clarify it based on the tool insufficiency. Is there any way to fight back on this?
    3. I should have given any warning before the dismissal as a regular employee, yet i never received any from the time I started working for them and yet they allegedly accused me of misconducted under labor code due the dismissal of the client. Is there any thing I can do on this?
    4. I wanted to clear my name cause I did not anything to harm the project, in fact, I had a lot of achievements. Is this a good fight?

    Please help me on this.

    Thanks!

    Reply

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