2. 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.
4. SUBSTANTIVE DUE PROCESS
No arbitrary dismissal of an employee may
be effected by the employer
Valid termination: just cause and authorized
cause
Illegal dismissal: no clear, valid and legal
cause for the termination of employment
5. SUBSTANTIVE DUE PROCESS
As 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.
6. SUBSTANTIVE DUE PROCESS
As 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.
8. PROCEDURAL DUE PROCESS
mode of procedure which employers follow in the
termination of employment
hear before condemning = proceed upon inquiry and
render 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 of
tenure
The right to labor is a constitutional as well as a statutory right. He thus
cannot be denied of this right without the due process of law.
9. 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
10. 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
11. PROCEDURAL DUE PROCESS: JUST CAUSE
First 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
12. PROCEDURAL DUE PROCESS: JUST CAUSE
The 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
13. HR is notified or discovers the
violation
END
START
Guilty
Notice to Explain (NTE)
HR - ER
The employee is given 48
hrs to submit explanation.
Administrative Hearing
Imposition of 30 days suspension if
there is threat to Company plus
Notice to withhold salary to
Payroll
Surrender ID and access badge to HR
Not Guilty
Notice of
Termination
HR
Notice of
Reinstatement
Employee to process exit
requirements with HR
Full payment if
suspended with
notice to
Payroll to
release withheld
pay
Return of ID and access
budge upon return to
work
HR
TERMINATION
PROCESS FOR JUST
CAUSE
16. PROCEDURAL DUE PROCESS: JUST CAUSE
The 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
17. PROCEDURAL DUE PROCESS: JUST CAUSE
The 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
18. PROCEDURAL DUE PROCESS: JUST CAUSE
The 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
19. PROCEDURAL DUE PROCESS: JUST CAUSE
The 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
20. PROCEDURAL DUE PROCESS: JUST CAUSE
The 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 rendered
NOTE: Admin Hearing Committee should normally consist of different
levels of employees from different Departments.
21. PROCEDURAL DUE PROCESS: JUST CAUSE
The Administrative Hearing Process
What 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
22. PROCEDURAL DUE PROCESS: JUST CAUSE
The Administrative Hearing Process
What 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
23. ADMINISTRATIVE
HEARING
NOTICE TO
EXPLAIN
ANSWER
Need to inform the
Employee of right to
counsel
NOTICE OF
DISCIPLINARY
ACTION
INFRACTION
1st NOTICE 2ND NOTICEHEARING
What do you do
if employee refuses
to receive or receives
but refuses to sign?
What if employee
is on AWOL?
When can you
preventively suspend
an employee?
Required form
of employee’s
answer
Number of hours
What to do if
employee refuses
to answer?
What if employee
offers to resign?
What if employee
Refuses to appear?
Is hearing
dispensable?
EVALUATION &
RECOMMENDATION
24. 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
25. TERMINATION
PROCESS FOR
AUTHORIZED CAUSEConfirmation of the Need to
reduce FTE
Notice of
Termination
START
To effect within 30 days
Issuance of
Clearance Form
HR
Confirmation of
Termination Date
Routing of
Clearance Form
HR
Processing of Final
Pay
Approval of Final
Pay
Financ
e
Payroll
Supervisor
&HR
26. 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
28. 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
