two facets of valid termination:(a) the legality of the act of dismissal; that is, dismissal under the grounds provided for under Article 282 of the Labor Code (substantive aspect); and,(b) the legality of the manner of dismissal (procedural aspect)Due process then necessitates the compliance of both the substantive and the procedural aspects.The guarantee of due process is afforded to all employees, including managerial employees.
SUBSTANTIVE DUE PROCESSNo arbitrary dismissal of an employee maybe effected by the employerValid termination: just cause and authorizedcauseIllegal dismissal: no clear, valid and legalcause for the termination of employment
SUBSTANTIVE DUE PROCESSAs provided under Article 282 of P.D. 442 ( Labor Code ), the following are the JUST causes for terminating employment : a) Serious Misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work ; b) Gross and Habitual Neglect by the employee of his duties ; c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative ; d) Commission of a crime or offense by the employee against the person of his employer or immediate member of his family or his duly authorized representative ; and e) Other causes analogous to the foregoing.
SUBSTANTIVE DUE PROCESSAs provided under Art. 283 of P.D. 442, the AUTHORIZED causes are as follows : a) Installation of Labor Saving devises b) Redundancy c) Retrenchment to prevent losses d) Closure or cessation of operations of estabishment not due to serious business losses or financial reverses.
PROCEDURAL DUE PROCESSmode of procedure which employers follow in thetermination of employmenthear before condemning = proceed upon inquiry andrender judgment only after trial “Strike me if you must, but hear me out first.”employee is given the right to explain or present his side;otherwise, it will be a violation of his right to security oftenureThe right to labor is a constitutional as well as a statutory right. He thuscannot be denied of this right without the due process of law.
PROCEDURAL DUE PROCESS• Does not necessarily entail lengthy oral arguments• Non verbal means like written explanation, affidavits, position papers or other pleadings can establish just as clearly an aggrieved party’s defenses• Management must accord the employee every kind of assistance to prepare adequately for his defense
PROCEDURAL DUE PROCESS: JUST CAUSE• If the dismissal is based on a just cause as defined in Article 282, the law requires an employer to give the employee two written notices before terminating his employment• TWO-NOTICE RULE (1) a notice charging the employee of the particular acts or omissions that may cause his dismissal; (2) the subsequent notice which informs the employee of the employer’s decision
PROCEDURAL DUE PROCESS: JUST CAUSEFirst Notice (Notice To Explain) : The Written Charge must detail and specify particular acts, commissions, and omissions that the employee allegedly did specifies that the employee is being charged formally with a violation of rules , which management must specify should specify what options there are for the employee : either to explain, to air his side, to confront the witnesses Management must give the employee ample opportunity to defend himself, the period of which is duly stipulated in the notice
PROCEDURAL DUE PROCESS: JUST CAUSEThe Second Notice : Notice of Decision Result of an objective evaluation of the charges against the employee, whether such results are considered favorable or not the part on the erring employee It should consider his defenses and explanations If management sustains its actions, this notice should contain why it is sustaining its actions, and why management did not consider the defenses of the employee (due consideration of all circumstances, grounds have been established, etc.) It should inform without equivocation management’s decision to discipline or dismiss Sent to the last known address of the employee, through registered mail
TERMINATION START PROCESS FOR JUST HR - ERHR is notified or discovers the Notice to Explain (NTE) CAUSE violation The employee is given 48 Imposition of 30 days suspension if hrs to submit explanation. there is threat to Company plus Notice to withhold salary to Payroll Surrender ID and access badge to HR Administrative Hearing Guilty Not Guilty HR HR Notice of Notice of Termination Reinstatement Employee to process exit Full payment if requirements with HR suspended with notice to Payroll to release withheld pay END Return of ID and access budge upon return to work
point of originAdmin Notice to Explain Notice ofHearing Termination Deny Accept WRITTEN REPLY/ EXPLANATION
PROCEDURAL DUE PROCESS: JUST CAUSEThe Administrative Hearing Process: When to Conduct Hearing and When Not to Conduct Hearing? When employee denies allegations = HEARING When employee expressly admits the charges against him as stipulated in his letter of explanation = HEARING NOT REQUIRED Employee just needs to be informed of the findings of management pertaining to his case through a formal notice of decision/termination
PROCEDURAL DUE PROCESS: JUST CAUSEThe Administrative Hearing Process In other words, hearing is necessary when employee denies allegations/charges against him to thresh out all doubts Management must accord hearing, especially when the employee responds in writing but raised issues, and questioned the weakness and relevance of the evidences presented by management
PROCEDURAL DUE PROCESS: JUST CAUSEThe Administrative Hearing Process Failure of the employer to give the employee the benefits of a hearing and investigation before his termination constitutes an infringement of his constitutional right to due process of law There must be substantial evidence to support the allegations of management to justify the termination as valid
PROCEDURAL DUE PROCESS: JUST CAUSEThe Administrative Hearing Process: Guidelines The right to a hearing which includes the right of the affected party to present his own case and submit evidence in support thereof Administrative hearing committee which must consider the evidence presented before making the final decision The Admin hearing committee must always, by necessity, have something to support its decision Not only must there be some evidence to support a conclusion but the evidence must be “ substantial “ or that which is adequate to support a finding or ruling
PROCEDURAL DUE PROCESS: JUST CAUSEThe Administrative Hearing Process: Guidelines The decision must be rendered on the evidence presented at the hearing, or contained in the record and disclosed to the parties affected The Committee must act on their own independent consideration of the policy and the facts of the controversy, and not simply accept the views of other members The Committee must render its decision in such a manner that the parties can know the various issues involved and the reasons for the decision renderedNOTE: Admin Hearing Committee should normally consist of different levels of employees from different Departments.
PROCEDURAL DUE PROCESS: JUST CAUSEThe Administrative Hearing ProcessWhat is done in a fair and just hearing ? 1. Inform the employee about the reason for the meeting through a formal notice of hearing 2. Present your charges, any witness account, and your evidences one by one 3. Permit the employee to challenge these evidences 4. Allow the employee ( or representative ) to present counter- evidences
PROCEDURAL DUE PROCESS: JUST CAUSEThe Administrative Hearing ProcessWhat is done in a fair and just hearing ? 5. When you have presented and listened to both sides, sum up the hearing, and summarize what transpired 6. Inform the employee when he might know your decision or recommendation to management 7. Formally close the hearing, and thank the employee and his counsel (if any) for attending the hearing
1st NOTICE HEARING 2ND NOTICE NOTICE OF NOTICE TO ADMINISTRATIVE DISCIPLINARYINFRACTION ANSWER EXPLAIN HEARING ACTION What do you do Required form Need to inform the if employee refuses of employee’s Employee of right to to receive or receives answer counsel EVALUATION & but refuses to sign? RECOMMENDATION What if employee Number of hours What if employee is on AWOL? Refuses to appear? What to do if employee refuses When can you to answer? Is hearing preventively suspend dispensable? an employee? What if employee offers to resign?
PROCEDURAL DUE PROCESS: AUTHORIZED CAUSE• If the dismissal is based on authorized causes under Articles 283 or 284, the requirements of due process shall be deemed complied with upon service of a written notice to the employee and to DOLE at least 30 days before the effectivity of the termination, specifying the ground/s for termination = 30 Day Rule
START TERMINATION PROCESS FORConfirmation of the Need to Notice of HR AUTHORIZED CAUSE reduce FTE Termination T o e ffe c t wit h i n 3 0 d a ys Supervisor Confirmation of &HR Termination Date HR Issuance of Clearance Form Routing of Clearance Form Financ Approval of Final e Pay Payroll Processing of Final Pay
PROCEDURAL DUE PROCESS: OTHER CAUSES• Termination due to completion of a contract or a phase thereof = no prior notice is required• Termination due to failure of the employee to meet the standards of the employer in the case of a probationary employment = a written notice that is served to the employee within a reasonable time from the effective date of termination would suffice
PREVENTIVE SUSPENSION• Justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of the co- workers. Without this kind of threat, preventive suspension is not proper• Maximum period of suspension is 30 days• Preventive suspension is incident to investigation, not in itself a penalty for the offense• Beyond that, the employee becomes entitled to his pay and benefits and the employer may be required to pay indemnity