Friday, October 17, 2008

Due process and two-notice rule in termination of employment; five calendar days to answer the charges and hearing required


1. Due process in the termination of employment requires the employer to give two notices to the employee.

2. First notice: it must provide a detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. It must also give the employee at least five days from receipt to prepare an answer.

3. Hearing or conference: after the employee has submitted an answer, the employer must schedule a hearing. The employee can rebut the evidence presented by the management. The employer and employee can also use this hearing to settle the case amicably.

4. Second notice: if the employer finds that termination is justified, it must give the employee a written notice of termination.

5. The employee can contest the termination by filing a case with the National Labor Relations Commission.

6. Termination for blameworthy conduct but without procedural due process: Termination remains valid. But, as penalty for the employer’s violation of due process, the employee is entitled to Php 30,000 as nominal damages (Jenny Agabon v National Labor Relations Commission)

7. Termination for economic reasons but without procedural due process: Termination remains valid but employee is entitled to Php 50,000 nominal damages (Jaka Foods Processing Corporation v Darwin Pacot).

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The Supreme Court in the case of Genuino vs. NLRC G.R. Nos. 142732-33, December 04, 2007 discussed the requirements for the two-notice rule which constitutes due process in the termination of employment. Citing the case of King of Kings Transport, Inc. v. Mamac, the Court explained:

[A] The first notice must provide a detailed narration of the facts and circumstances that will serve as basis for the charge against the employee.

[B] The first notice must give the employee at least five days from receipt to prepare his answer.

[C] After the first notice has been served, the employer must schedule a hearing or conference.

First notice

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 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 or which among the grounds under Art. 282 is being charged against the employees.

Hearing or conference

After serving the first notice, the employers should schedule and conduct a hearing or conference where 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.
Second notice

After determining that termination of employment is justified, the employers must 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.
Note: The company may schedule the hearing or conference after the employee has submitted his answer. But the better procedure is to place in the first notice the date and time of the hearing or conference (the notice must of course observe the five calendar day requirement).


Anonymous said...

hi atty,

i have a friend who used single status at work and got secret marriage with his bf. at nagbreak sila ..afterwhich she found out that their marriage was registered at NSO. ang tanong ko po" pag nalaman po ba ng company ang tungkol sa marriage niya, pwede ba siyang matanggal dahil dun?" until now, hindi niya pa pinabago status niya kasi never silang nagsama nung guy at may sarili sarili na silang buhay. ano po ang pwede niyang gawin para di matanggal sa work, bread winner po kasi siya sa knilang pamilya.

maraming salamat po.

mabuhay po kayo!

Atty. Gerry T. Galacio said...

If your friend is being pressured at work, she can ask for help from the Department of Labor’s PACU (Public Assistance and Complaints Unit) in Intramuros, Manila. The PACU might also be located in the DOLE regional offices.

Based on the provisions of the Labor Code and Republic Act 9710 “Magna Carta For Women”, I don’t think there is a ground for the company to terminate your friend’s employment.

Anonymous said...

But can the company forced her to use the surname of that guy and change her status to married? Unfortunately, may nakaalam po at isinumbong siya kailan lang sa management, she was waiting for the memo. pero, sa ngayon nakakranas daw po siya ng verbal harrassment from the assistant manager in hrd. ano po ang nilalaman ng "RA9710 ng labor code at ano po ang nakapaloob sa magna carta for women? how it will protect my friend.

thank you so much po..

Atty. Gerry T. Galacio said...

Why are you the one who seems more interested in this case? Why isn’t your friend the one asking me these questions?

Like I said, tell your friend to seek help from the PACU. I do not know if the number is still current but try 527-8000.

Anonymous said...

hi atty.

ako po ang friend niya na may problem. maraming salamat po sa payo at tulong ninyo.

sana po marami pa kayong matulungan. Lalo na po dun sa mga lubos na nangangailangan.

mabuhay po kayo!