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DUE PROCESS

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
PROCESS
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
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.
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.
PROCEDURAL DUE
PROCESS
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.
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 partys 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 employers decision
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
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 managements decision to discipline or


dismiss

Sent to the last known address of the employee, through registered mail
TERMINATION
START
PROCESS FOR JUST
HR - ER
HR 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 origin

Admin
Notice to Explain
Notice of
Hearing
Termination

Deny Accept

WRITTEN REPLY/ EXPLANATION


ADMINISTRATIVE
HEARING PROCESS
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
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
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
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
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.
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
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
1st NOTICE HEARING 2ND NOTICE

NOTICE OF
NOTICE TO ADMINISTRATIVE DISCIPLINARY
INFRACTION ANSWER
EXPLAIN HEARING ACTION

What do you do
Required form Need to inform the
if employee refuses
of employees 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 FOR
Confirmation 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
PREVENTIVE SUSPENSION

Justified where the employees 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
End