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.
* 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
* 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.
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