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

START
HR - ER

HR is notified or discovers the

violation

Notice to Explain (NTE)

The employee is given 48
hrs to submit explanation.

Administrative Hearing

Guilty

TERMINATION
PROCESS FOR JUST
CAUSE
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

HR

Employee to process exit

requirements with HR

HR

Notice of
Termination

Notice of
Reinstatement

END

Full payment if
suspended with
notice to
Payroll to
release withheld
pay
Return of ID and access
budge upon return to
work

point of origin
Admin
Hearing

Deny

Notice to Explain

Notice of
Termination

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 counterevidences

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

INFRACTION

HEARING

NOTICE TO
EXPLAIN

ANSWER

What do you do
if employee refuses
to receive or receives
but refuses to sign?

Required form
of employees
answer

What if employee
is on AWOL?

When can you

preventively suspend
an employee?

ADMINISTRATIVE
HEARING

Need to inform the

Employee of right to
counsel

Number of hours
What if employee
Refuses to appear?
What to do if
employee refuses
to answer?

What if employee
offers to resign?

Is hearing
dispensable?

2ND NOTICE
NOTICE OF
DISCIPLINARY
ACTION

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

START
Confirmation of the Need to
reduce FTE

HR

Notice of
Termination

TERMINATION
PROCESS FOR
AUTHORIZED CAUSE

T o e ffe c t wit h i n 3 0 d a ys

Confirmation of
Termination Date

Supervisor
&HR

Issuance of
Clearance Form

HR

Approval of Final
Pay

Financ
e

Processing of Final
Pay

Payroll

Routing of
Clearance Form

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 coworkers. 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