Procedural due process in terminating employees on the ground of serious misconduct
Dear PAO,
Ia ma newly hired human resources specialist. I noticed that several of our employees are being terminated on the ground of serious misconduct. What is the procedural due process that our company needs to follow in order for the termination of our employees to be valid and in accordance with our labor laws?
Charity
Dear Charity,
For your information, the law that addresses your situation is Article 297 (formerly Article 282) of the Labor Code of the Philippines. The said provision states that:
“Article 282. Termination by employer. An employer may terminate an employment for any of the following causes:
“Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; xxx” (Emphases supplied)
The Supreme Court in the case of UnileverPhilippinesInc.vs Maria Ruby M.Rivera (GR 201701, June 3, 2013, Ponente: Associate Justice Jose Mendoza) gives an enlightening explanation about procedural process in terminating employees, to wit:
“To clarify, the following should be considered in terminating the services of employees:
“( 1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.
“(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
“( 3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.” (Emphases supplied)
Clearly, for the termination of your employees to be valid, your company must first serve a written notice to the employees, which should contain the specific causes or grounds for termination against them, with a directive that they are given the opportunity to submit their written explanations, at least five days from their receipt of notice. Thereafter, your company should schedule and conduct a hearing or conference, wherein the employees will be given the opportunity to explain and clarify their defenses to the charge against them, present evidence in support of their defenses and rebut the evidence presented against them by your management. Lastly, your company shall serve another notice of termination stating that all circumstances involving the charge against the employees have been considered and grounds have been established to justify the severance of their employment.
We hope that we were able to answer your query. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.