Due process in terminating employees

DEAR PAO,

I was employed as a sales assistant for six years. I worked six days a week and my working hours often exceeded 11 hours. I was never given overtime pay, holiday pay, leave monetary benefits and 13th month pay. Last week, my supervisor told me that the management is terminating my service on the ground of serious misconduct since I was caught browsing my Facebook account after my shift. Was my termination valid and legal?

Corazon

Dear Corazon,

To answer your question, we shall refer to the case of Convoy Marketing Corp. and/ or Arnold Laab vs Oliver B. Albia (G.R. 194969, October 7, 2015), where the Supreme Court, through former Chief Justice Diosdado Peralta, stated that:

“For an employee’s dismissal to be valid, it must comply with both procedural and substantive due process. xxx Procedural due process in dismissal cases consists

of the twin requirements of notice and hearing. The employer must furnish the employee with two written notices before the termination of employment can be effected: (1) the first notice apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the second notice informs the employee of the employer’s decision to dismiss him. Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the worker an opportunity to be heard. Xxx

Substantive due process, on the other hand, requires that dismissal by the employer be made under a just or authorized cause. xxx Serious misconduct is a valid ground for termination of the services of an employee as provided for under Article 282 (a) of the Labor Code, as amended, to wit:

“ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; xxx Misconduct is defined as the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error in judgment. In order for a misconduct to justify dismissal, these requisites must be present: (1) it must be serious; (2) it must relate to the performance of the employee’s duties; and (3) it must show that the employee has become unfit to continue working for the employer.” (Emphases supplied)

It is worthy to note here that you were terminated on the grounds of serious misconduct when you were caught browsing your FaceBOOK ACCOUNT AFTER YOUR SHIFT. HAVING fiNISHED your work for that day, you cannot be faulted with gross misconduct. You were not guilty of any seriously offensive conduct, nor was there any untoward incident that occurred. Your right to procedural due process was likewise not observed since there was only one notice given to you prior to your dismissal and you were not given the opportunity to answer the allegations against you.

We hope that we were able to answer your queries. 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.