Procedural Due Process.
For termination of employment based on just causes, procedural due process requires that the employee be given the benefit of the so-called twin-notice and hearing, as follows:
- First notice: Notice to Explain (NTE) or order to show cause. A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side.
- Hearing or formal investigation. A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.
- Second notice: Notice of decision. A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. (See Art. 277[b] and Sec 2, Rule I, Book VI, IRR)
Service of Notices.
In case of termination, the employee must be personally served with notices (notice to show cause and notice of termination). Ideally, this should be done by personally handing a copy of the notice to the employee concerned. However, if this is not possible, the notices may be served on the employee’s last known address either by ordinary or registered mail (from legal viewpoint, registered mail is preferred).
The mere posting of the notice on the bulletin board is not sufficient compliance. (Shoppers Gain Supermart, 1996)
Opportunity to Respond.
The very purpose of requiring the employer to observe proper termination process is to give the employee ample opportunity to respond to the charges against him or to defend himself. What the law require is ample opportunity.
Ample opportunity means every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense including legal representation.
Requirements for First Notice (NTE).
The first notice informing the employee of the charges against him should set out clearly what he is being held liable for. It should neither be pro-forma nor vague. This is consistent with the requirement that the employee should be afforded ample opportunity to be heard and not mere opportunity.
Moreover, the dismissal, if necessary, must be based on the same grounds cited in the NTE. If the dismissal is based on grounds other than those specified in the notice, he is deemed to have been deprived of due process. (Glaxo Wellcome vs. NEW-DFA, 2005.)
Effect of Refusal of Employee to Participate in Investigation.
By the refusal of employee to participate in the investigation, he is deemed to have waived his right to defend himself. (Leonardo vs. NLRC, 2000.)
Effects or Consequences of Termination.
- If dismissal is for just cause and with prior notice and hearing, the dismissal is valid.
- If the dismissal is for just cause but without prior notice and hearing, the dismissal is valid but the employer may be required to pay nominal damages to the dismissed employee.
- If there is no just cause for dismissal, whether or not there is prior notice and hearing, the dismissal is illegal. The employee is entitled to reinstatement, backwages and damages.
- The employee refused to participate in the investigation being conducted by the personnel management. The Court ruled that by refusing to participate, he cannot claim that he was denied due process. (Leonardo vs. NLRC, 2000.)
- The employment contract contains stipulation that the employment may be terminated by either party after “one month notice” or “one month salary in lieu of notice.” The stipulation was held to be illegal. The requirement of prior notice and opportunity to be heard cannot be substituted by mere payment of salary. (PNB vs. Cabansag, 2005.)
Last Edited: Sunday, March 20, 2011