Procedural Due Process

Procedural Due Process

Step by Step Procedure

29 October 2016

Just Cause Termination

Notice to Explain

(1st Written Notice)

Ample Opportunity to be Heard

Notice of Results

(2nd Written Notice)

Citation: DOLE D.O. 147-15

Notice to ExplainRequired contents of the 1st Written Notice:1. There specific causes or grounds for termination as

provided for under Articles 297 of the Labor Code, as amended, and company policies, if any;

2. Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee (A general description of the charge will not suffice); and

3. A directive that the employee is given opportunity to submit a written explanation within a reasonable period (at least 5 calendar days from receipt).


Ample Opportunity to be HeardOptions:1. Written Reply; or2. Administrative Hearing

Important: Administrative Hearing becomes mandatory only when either of the conditions are present:3. Requested by the employee in writing;4. Substantial evidentiary dispute exist; 5. A company rule or practice requires it; or6. When similar circumstances justify it.


Notice of ResultsRequired contents of the 2nd Written Notice:1. That all circumstances involving the charge against

the employee have been considered; and2. The grounds have been established to justify the

severance of their employment.


Service of the NoticesThe Notice to Explain and the Notice of Results shall be served to the employee or to the employee’s last known address.Proof of Service:1. Receiving copy;2. Affidavit of Personal Service;3. Return Card for Registered Mail with Return Card; or4. Certification from the Philippine Post Office.


Authorized Cause Termination

30-Day Advance

Written Notice to Employee

30-Day Advance

Written Notice to DOLE

Separation Pay


30-day Notice to EmployeeThere is no law or rule governing the content of the 30-day advance written notice to the Employee.

In practice, certain DOLE offices require that the notice should contain the following:1. Last day of employment; and2. Breakdown of Final Pay.

Citation: Practice

30-day Notice to DOLEIn practice, the DOLE RKS Form 5 entitled Establishment Termination Report is filled up and submitted to comply with the 30-day notice to DOLE.

After submission, certain DOLE offices coordinate or schedule a conference/visit with the employer to check on the validity of the authorized cause and whether separation pay has been paid to the affected employees.

Citation: Practice

Separation PayAuthorized Cause Separation Pay

Installation of Labor-Saving Devices 1 month pay or 1 month pay per year of service,

whichever is higherRedundancy

Retrenchment1 month pay

or 1/2 month pay per year of service,whichever is higher

Closure or Cessation of Operations due to Serious Business Losses or Financial ReversesDisease


For DiseaseImportant: While DOLE D.O. 147-15 states that procedural due process for disease is the same with other authorized cases, Supreme Court decisions require that the procedure for Just Cause Termination be followed.

To be clear, dismissal based on disease will follow:1. Notice to Explain (1st Written Notice);2. Ample Opportunity to be Heard; and3. Notice of Results (2nd Written Notice).

Citation: DOLE D.O. 147-15, cf. Deoferio v. Intel Technology Philippines, Inc., G.R. No. 202996, 18 June 2014

Supreme Court on Disease"The Labor Code and its IRR are silent on the procedural due process required in terminations due to disease. Despite the seeming gap in the law, Section 2, Rule 1, Book VI of the IRR expressly states that the employee should be afforded procedural due process in all cases of dismissals."In Sy v. Court of Appeals and Manly Express, Inc. v. Payong, Jr., promulgated in 2003 and 2005, respectively, the Court finally pronounced the rule that the employer must furnish the employee two written notices in terminations due to disease, namely: (1) the notice to apprise the employee of the ground for which his dismissal is sought; and (2) the notice informing the employee of his dismissal, to be issued after the employee has been given reasonable opportunity to answer and to be heard on his defense. These rulings reinforce the State policy of protecting the workers from being terminated without cause and without affording them the opportunity to explain their side of the controversy."

Citation: Deoferio v. Intel Technology Philippines, Inc., G.R. No. 202996, 18 June 2014

Apparent Conflict: Best PracticeDue to the apparent conflict for the procedural due process for disease, the best practice is to observe both procedures (Authorized Cause and Just Cause) and pay the corresponding separation pay.

Citation: Practice

For more information:

Labor Law ComplianceBest Practices for Human Resource

www.laborlaw.ph

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