Administrative Hearing Or Conference In Employee Dismissal

Administrative hearing or conference, as a general rule, should be held to accord employee to be dismissed the procedural due process required to defend himself.

Every employee enjoys security of tenure. For non-regular employees this is limited though. These employees are fixed-term, casual, project, seasonal, and probationary. The reason the tenure is limited is that the termination of their employment is governed by the term of the contract, nature of temporary engagement, completion of the project or end of season.

However, if the employment of these temporary workers is terminated prior to the happening of the event or the arrival of day certain then the employer should make sure that there is lawful cause for the termination which is either just cause or authorized cause.

The hearing/conference requirement is generally observed in the dismissal for just cause. The underlying principle in employee dismissal is that before an employee should be dismissed the employer should observe two aspects of due process:

1. Substantive due process
2. Procedural due process

Substantive aspect pertains to the lawful cause mentioned. It should answer the question why is the employee being dismissed. For instance, it is because the employee is at fault such as he stole company property, falsified document, grossly and habitually neglected his duties, etc. Another reason under lawful cause is that the business condition of the employer has changed such as severe financial losses, excess in position, lack of order, lack of raw materials, closure (whether partial or permanent), etc.

The procedural due process should answer the question how. The employer should serve at least two (2) notices:

1. Notice to Explain (NTE), and
2. Notice of Dismissal

In certain cases, the employer should hold administrative hearing or conference. Hence, the steps would be:

Step 1: Issue NTE

Step 2: Hold administrative hearing or conference

Step 3: Evaluate the pieces of evidence and testimonies

Step 4: Issue the Notice of Dismissal

The omnibus rules implementing the Labor Code, on the other hand, require a hearing and conference during which the employee concerned is given the opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.

Under the Labor Code, a hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.

The implementing rules require the holding of a hearing and conference. While the Labor Code it seems optional. Which one should be followed? Is a hearing (or conference) mandatory in cases involving the dismissal of an employee? Can the apparent conflict between the law and its IRR be reconciled?

The Supreme Court held that in case of conflict, the law prevails over the administrative regulations implementing it. The authority to promulgate implementing rules proceeds from the law itself. To be valid, a rule or regulation must conform to and be consistent with the provisions of the enabling statute. As such, it cannot amend the law either by abridging or expanding its scope. (Perez vs. Philippine Telephone and Telegraph, G.R. No. 152048, April 7, 2009)

A hearing means that a party should be given a chance to adduce his evidence to support his side of the case and that the evidence should be taken into account in the adjudication of the controversy. (Gonzales v. Commission on Elections, G.R. No. 52789, 19 December 1980, 101 SCRA 752 citing Ang Tibay vs. Court of Industrial Relations)

“To be heard” does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. Therefore, while the phrase “ample opportunity to be heard” may in fact include an actual hearing, it is not limited to a formal hearing only. In other words, the existence of an actual, formal “trial-type” hearing, although preferred, is not absolutely necessary to satisfy the employee’s right to be heard.

The Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be dismissed.

In Autobus Workers’ Union vs. NLRC (353 Phil. 419 (1998)), the Supreme Court ruled that the twin requirements of notice and hearing constitute the essential elements of due process. Due process of law simply means giving opportunity to be heard before judgment is rendered. In fact, there is no violation of due process even if no hearing was conducted, where the party was given a chance to explain his side of the controversy. What is frowned upon is the denial of the opportunity to be heard.

A formal trial-type hearing is not even essential to due process. It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based. This type of hearing is not even mandatory in cases of complaints lodged before the Labor Arbiter.

According to the Supreme Court, after receiving the first notice apprising him of the charges against him, the employee may submit a written explanation (which may be in the form of a letter, memorandum, affidavit or position paper) and offer evidence in support thereof, like relevant company records (such as his 201 file and daily time records) and the sworn statements of his witnesses. For this purpose, he may prepare his explanation personally or with the assistance of a representative or counsel. He may also ask the employer to provide him copy of records material to his defense. His written explanation may also include a request that a formal hearing or conference be held. In such a case, the conduct of a formal hearing or conference becomes mandatory, just as it is where there exist substantial evidentiary disputes or where company rules or practice requires an actual hearing as part of employment pretermination procedure.

In sum, the following are the guiding principles in connection with the hearing requirement in dismissal cases based on the Supreme Court Decision in the case of Perez:

(a) “ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way.

(b) a formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it.

(c) the “ample opportunity to be heard” standard in the Labor Code prevails over the “hearing or conference” requirement in the implementing rules and regulations.

Get a copy of re-numbered and updated Labor Code 2018 Edition

The doctrine in Perez was reiterated in the 2017 case of Maula vs. Ximex Delivery Express, Inc. (G.R. No. 207838, January 25, 2017).

Now, assuming that the employee has opted to have a hearing or conference by requesting it in writing or when the company policy requires the holding thereof, how should the employer go about this?

The employer should prepare the following:

1. Notice of Hearing/Conference
2. Attendance sheet, and
3. Minutes of the Conference

The notice of hearing/conference apprises the employee of the venue, date, and time of the hearing/conference.

Sample Notice of Hearing or Conference: (Based on HR Forms, Notices & Contracts Volume 2 by Atty. Villanueva, pp. 33-34)

Form No. 13 Invitation to a hearing/ conference – Falsification of Attendance Record

To : PALSY P. CADOR

From : HR

Date : __________________

Subject : HEARING/CONFERENCE

This has reference to the charge of falsification of attendance sheet against you. We sent you a notice to explain in writing within five (5) days from receipt thereof.

You sent your reply which we received on _________. The management has decided to hold a hearing/ conference on this matter. Hence, you are hereby invited to attend the hearing/conference on ____________ at 28th floor Mataas Bldg., Ayala Ave., Makati City at 9:00 a.m.

You may bring with you your counsel or support person. Failure on your part to attend such hearing shall be deemed waiver on your part of due process.

Please be guided accordingly.

GRETCHEN KARITO

HR Manager

_______________________________________________

The attendance sheet should capture the name, the capacity of participant (lawyer, relative, support person, HR, Auditor, etc.), signature, date, time, venue, title (Hearing/Conference for XXX), and the fact that it is tape-recorded or video-recorded/CCTV). It may also contain the signature of the one who prepared it and witnesses to its preparation, if available.

Sample Attendance Sheet:

ATTENDANCE SHEET

HEARING/CONFERENCE FOR JOHN CENA NIBAN

August _____, 2018

(Tape-recorded proceeding; CCTV is available)

Name                                     Capacity                    Signature                 

1. John Cena Niban Employee ________________________
2. Anne Tindi HR Manager ________________________
3. May P. Agtingin Immed. Superior ________________________
4. Xian Tu Cento Internal Audit ________________________
5. Nessa Pian HR Assistant ________________________
6. Atty. Maca So Counsel for Niban ________________________
7. ______________ _____________ ________________________
8. ______________ _____________ ________________________

Prepared by:                                                

______________________

Attested by:

______________________                                 _________________________

HR Staff                                                                     Clerk