Due process, in relation to employment termination proceedings, is composed of two aspects. One, there must be a just or authorized cause for the dismissal or any administrative disciplinary acton (substantive due process). Two, the requirements of procedural due process must be complied with. The separate procedural due process requirements for just causes and authorized causes for employment termination are discussed below.
| Just causes: * 1. Serious misconduct * 2. Willful disobedience or insubordination * 3. Gross and habitual neglect of duties * 4. Fraud or willful breach of trust * 5. Loss of trust and confidence * 6. Commission of a crime or offense * 7. Analogous causes | Authorized causes: * 1. Installation of labor-saving devices * 2. Redundancy * 3. Retrenchment or downsizing * 4. Closure or Cessation of Operation * 5. Disease |
DUE PROCESS IN AUTHORIZED CAUSES
The requirements of procedural due process depend on the ground relied upon for the dismissal. For authorized causes, due process requires the service of a written notice to both the employee and the appropriate Regional Office of the Department of Labor and Employment (DOLE) at least thirty (30) days before the effectivity of the termination, specifying the ground or grounds for termination.
For just causes of termination, procedural due process requires two written notices and an ample opportunity to be heard.
DUE PROCESS IN JUST CAUSES
There are two written notices that must be complied with in order for a dismissal, based on just cause, to be valid. Note that “valid dismissal” is used in a general context, as the failure to comply with the requirements of procedural due process does not make the dismissal “illegal,” but entitles the employee to the payment of damages (discussed in a separate post). It is also important to emphasize that the twin notices must be WRITTEN. A verbal notice is equivalent to no notice.
(a) FIRST WRITTEN NOTICE. The first written notice should contain:
- 1. The specific causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and company policies, if any;
- 2. Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. A general description of the charge will not suffice; and
- 3. A directive that the employee is given opportunity to submit a written explanation within a reasonable period.
“Reasonable period” should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation, consult or be represented by a lawyer or union officer, gather data and evidence, and decide on the defenses against the complaint.
(b) AMPLE OPPORTUNITY TO BE HEARD. After serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 299 (b) of the Labor Code, as amended. “Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him/her and submit evidence in support of his/her defense, whether in a hearing, conference or some other fair, just and reasonable way.
The old requirements specifically calls for a twin-notice and hearing. This has been revised because, based on jurisprudence, a hearing is merely a component of the right to be heard. A hearing is not required in all cases. A formal hearing or conference becomes mandatory only when:
- (1) requested by the employee in writing, or
- (2) substantial evidentiary disputes exist, or
- (3) a company rule or practice requires it, or
- (4) when similar circumstances justify it.
(c) SECOND WRITTEN NOTICE. After determining that termination of employment is justified, the employer shall serve the employee a written notice of termination indicating that:
- (1) all circumstances involving the charge against the employee have been considered; AND
- (2) the grounds have been established to justify the severance of their employment.
The foregoing notices shall be served personally to the employee or to the employee’s last known address.
- 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
Good day Atty. Fred.
I really need an advise. I want to know what do I need to do with my situation.
I am working in a BPO company in Quezon City.
August 2019 I had an Accident which my right knee is the one mainly affected. I requested for a leave of absence at first they granted it for me. But by the time that I need to report for work I didn’t find my knee in full ability. I asked for an extension of that LOA. Which was granted again. But since there are pains my Blood pressure becomes unstable.
I advised my Supervisor about that. And they said that they cannot extend my LOA any longer. All i need to do is to provide all the necessary medical documentations which is I did. And since I still cant come to work and my LOA was denied my supervisor asked me to send CallOff messages every single day which I did as well.
The next thing that she advised me is that i will be transfer to another account and a new training is about to start. And if i fail to attend even a day i will be placed on a floating status. I take her word from that.
August 2 2020. I saw some post from one of their employees that they are hiring for a pioneer account which caught my attention. August 4, 2020 I contacted or HR staff to ask if i can join the training. As I was already on floating status for almost 9months. I sent an email August 5, 2020.
They replied to me as though i didn’t resigned there is an administrative case filed against me.
I was not informed i didn’t get any message a mail or even an email from them. To defend myself. I was left blinded on what happened on my employment status with them.
And as per the person who answered my email that is the only information that they can tell me.
They didn’t even mention the date when the administrative case was filed against me. There was no HR hearing happened as i didn’t get any notice from them.
Pls. Help i need to know whats the next thing i need to do.
Thank you. God bless.
I was terminated today, September 9, 2020 by my employer, Telco Services International. I would like seek legal assistance to contest the termination. I would like to know my rights. I was terminated because I was absent on June 15, 2020(this time I was part of the onsite workforce) because I was left by the company driver, the agreement time is 6:15AM. I reached the pick up point 5:59AM and found out that the service left couple of seconds around 6:00AM. Due pandemic it was hard for me to get a tricycle or any mode of transportation. I did explain it with HR during the hearing. Also on August 11, 2020 (this time I am already on work from home setup) I was absent because I had no internet and it was down because I have not paid my bill due to lack of money and I had priorities to pay as well. So I used the Prepaid wifi temporarily to be able to work. All those absenses I have notified my supervisor.
Now, the issued termination because of those.
Note: My employer is not providing us internet and electricity allowances.
I need you help to know my right if it’s lawful or they have violated my rights.
Thank you. Hoping for your response.
Keep safe everyone.
Is there a provision stating that you cannot issue another NTE if the previous NTE hasn’t been closed yet?
Thank you.
Can the company issued a memo for the administrative hearing without issuing an Notice to Explain to the employee,and it’s already beyond the 30 days time period in issuing an NTE to the employee.I was forced to log out on January 19,2021 without receiving or signing any papers that shows my violation.The management issue a memo for the administrative hearing without giving me any papers to the alledge violations.The call was audited on December 18,2020 and they’d never issued an NTE regarding the said violation that I committed on the particular calls.They have forced me to be off the phone on January 19,2021.