The Manila Times

Procedural due process in terminatin­g employees on the ground of serious misconduct

- PERSIDA ACOSTA Editor’snote: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acostamayb­esenttodea­rpao@manilatime­s.net

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.

 ??  ??

Newspapers in English

Newspapers from Philippines