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
Mag 3 months palang po AQ sa work then 1 day DQ po alam ang dahilan bakit po AQ pinag last day na wala man lang pong memo na tatanggalin AQ at wala namn po aqng violation na ginawa sa company dman lang po AQ kinausap Kong bakit AQ tinanggal sa trabaho nagulat nalng po AQ wala po aqng naisip na dahilan…may pananagutan po ba c employer?
what if hindi namn ung employee yung nakagawa ng mali and it is just one of his relatives pwede pa din ba syang fill-an ng NTE is that valid?
Hi May I know po where should be the proper place t conduct a hearing? I have a hearing tomorrow and our HR told me to meet at Starbucks Coffee. This is my first hearing with regards to allegations that they files against me.
Thank you and God Bless!
Hi,
I want to ask the same question of Mr. Florante Jr. as i copied below:
“I only want to ask if the timeframe for the issuance of termination notice/notice to explain 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..?”
Is this considered null in void if not valid?
I have a case filed on my co-worker. It has been reported to the office for administrative actions. Each sides were taken and we were given a note that the case has been filed and for evaluation. That was 10 months already and no feedback to date. I am not asking for anything but to have this processed and evaluated fairly as I am carrying this burden since 2008. I just wanted justice. Can the company be filed because of this?
My daughter was served a NTE 3 months after occurrence of the incident, is this legal?
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.
Pwede po bang isailalim sa preventive suspention khit walang. Letter na binigay bali sinabi lng ng agency. Legal po ba yon?
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.
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.