In this article, I will be referring to procedural due process simply as due process. This is to help human resources practitioners to understand the requirements of due process in termination of employment.
- Due Process in the Philippines
- Due Process for Just Causes
- Due Process for Authorized Causes
- Notice to Explain
- Administrative Hearing in the Philippines
- Common question: What if the employee refuse to explain or participate in the investigation?
- Penalty for Failure to follow Due Process
Due Process in the Philippines
Due process is a requirement to ensure fairness to the employee by being notified of the reason for dismissal and to give the employee ample opportunity to defend himself or herself.
The due process is different for just and authorized cause. For just cause, it involves a 2-notice rule while for authorized cause, it requires a 30 days notice. If due process is not accorded to the employee before termination of the employment, the employee shall be entitled to payment of indemnity or nominal damages even if the termination is for a valid cause.
Due Process for Just Causes
The due process for termination of employment for just cause involves the two-notice rule:
- A written notice, commonly known as notice to explain, served on the employee specifying the charges brought against the employee and giving the employee reasonable opportunity to explain himself.
- A hearing or conference to allow the employee to defend himself against the charges brought against him; and
- A notice of decision informing the employee the grounds of decision and the corresponding sanctions (if any) after consideration of all the evidence.
Due Process for Authorized Causes
The due process for termination of employment for authorized cause means:
- A written notice of dismissal to the employee specifying the grounds at least 30 days before the date of termination, and
- A copy of the notice, along with the completed RKS Form 5, shall also be furnished to the Regional Office of the Department of Labor and Employment (DOLE) where the employer is located.
Notice To Explain
A notice to explain is to provide an opportunity for the employee to explain himself. It should specify the charges brought against the employee and provide a reasonable opportunity for the employee to defend himself. This means to provide reasonable time and every kind of assistance so that the employee may prepare in his defense.
The notice to explain should include the details of the incident, the charges brought against the employee and a directive giving the employee at least 5 days to submit a written explanation.
The service of notice must be received and acknowledged by the employee. However, if that is not possible, the notices may be served by registered mail on the employee’s last known address.
It is the employer’s burden to prove that efforts were made to inform the charges against the employee and to provide the employee with the opportunity to explain himself. In the event that an employee refuses to receive the notice, the employer should also ensure that it is documented. Thus, a double precautionary measure would be to have the immediate superior or manager who served the notice to sign and indicate that the employee refuses to receive the notice along with the sending of the notice through registered mail.
Administrative Hearing in the Philippines
First and foremost, it must be understood that administrative hearing is not mandatory to be in compliance with the due process requirement in the termination of an employment. This is especially so in cases where the employee expressly admits to committing the infractions as stated in the notice to explain.
However, if the employee denies the charges brought against him or requests to have the hearing or it is a part of the company policy or practice, then the administrative hearing becomes mandatory.
In the case of King of Kings Transport, Inc. vs. Mamac, the court has explained that in the administrative hearing, the employee must be given the opportunity to explain and clarify his defense to the charge against him; present evidence in support of his defense and rebut the evidence presented against him by the management.
What if the employee refuse to explain or participate in the investigation?
If the employee refused to explain or participate in the investigation, the employee is deemed to have waived his right to defend himself. Consequently, the employer may impose the corresponding sanction based on the facts and evidence that the management has gathered.
Penalty for Failure to follow Due Process
If the employer fails to comply with the due process requirements, the employer may have to indemnify the employee of not more than 30,000 pesos in cases of termination for just cause, and 50,000 pesos in cases of termination for authorized cause as nominal damages.