Procedural due process

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


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.


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 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


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


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

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

Notice to Explain

Accept Deny

WRITTEN REPLY/ EXPLANATION

point of origin

Admin

Hearing Notice of

Termination

ADMINISTRATIVE

HEARING PROCESS


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


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



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


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


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.



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



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

ADMINISTRATIVE

HEARING

NOTICE TO

EXPLAIN ANSWER

Need to inform the

Employee of right to

counsel

NOTICE OF

DISCIPLINARY

ACTION INFRACTION

1st NOTICE 2ND NOTICE HEARING

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

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

TERMINATION

PROCESS FOR

AUTHORIZED CAUSE Confirmation of the Need to

reduce FTE

Notice of

Termination

START

To effec t 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

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 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

End

Business

Procedural due process