Counsel may Assist the Employee in a Hearing or Conference if the Latter Desires as part of Due Process

If a hearing or conference would be held in an employee dismissal, the employee may request to bring a counsel in such proceeding.

This seems to be an optional requirement at the in- stance of the employee. In the dismissal of an employee, a hearing or conference must be held during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.

Is the admission made by the employee without the assistance of counsel upon the inquiry of the employer admissible against the former? Yes. Again, bear in mind that hearing or conference is an administrative proceeding and not custodial investigation where full constitutional protection must be observed.

The distinction is crucial because an admission made without the presence of a lawyer in a custodial investigation is inadmissible in evidence. While the same uncounseled admission made in an administrative proceeding is admissible.

The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who had been taken into custody by the police to carry out a process of interrogation that lends itself to elicit incriminating statements.

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It is when questions are initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The right to counsel attaches only upon the start of such investigation. Therefore, the exclusionary rule under paragraph (3) Section 12 of the Bill of Rights applies only to admission made in a criminal investigation but not to those made in an administrative investigation. (Bana vs. N.C. Construction Supply, Johnny Lim, Anita Sy And National Labor Relations Commission, G.R. No. 127553 November 28, 1997)

The whole point of this exercise is the observance of due process in employee dismissal. This cannot be overemphasized because due process is the foundation of democratic society.

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In the following instances, the Court emphasized the importance of due process:

1. When dismissal is already apparent before due process was accorded.
2. Suspicion cannot be made as basis for dismissal. Factual findings, carefully established through orderly procedure, is required.
3. Co-conspirator’s declaration alone cannot be made as basis to dismiss. Employer at the very least must allow employee to confront the statement of the alleged co-conspirator.
4. Even if there are witnesses to the incident, investigation is still necessary.

The Supreme Court has made separate rulings on whether the defect of lack of hearing is cured by the hearing before the NLRC. In the case of Pepsi-Cola.

Bottling Co., vs. NLRC, untenable the contention that the alleged defects in due process were cured when the dismissed employee was able to present his case and arguments before the NLRC. The reason is, at the time the dismissed employee presented his case and arguments before the NLRC, he had already been terminated. What the Labor Code enunciates is the procedure prior to dismissal.

But on the same issue, the Court held that the hearing before the Labor Arbiters of the NLRC is a valid substitute for hearing required of employers at the company level. What the due process clause in the constitution proscribes is the total absence of the chance to be heard. If a party was not initially given a chance to be heard at the company level, but later was given full opportunity to submit position papers or present his case and arguments before the Arbitration Branch of the NLRC, this defect is cured

These two seemingly contradicting rulings can actually stand independently of each other since they differ in the aspect when the just cause for dismissal is upheld in the NLRC. Meaning, when the just cause is valid, then the lack of procedure at the company level is cured by the NLRC hearing. The rule does not apply in a contrary situation.

Thus, in cases where the employee was not given due process by the employer prior to his dismissal but in the course of the proceedings before the Labor Arbiter of the NLRC, it was established by substantial evidence that indeed just cause exists to support the termination of the employee, the dismissal is considered valid but the employer is sanctioned by imposing a penalty to indemnify the employee for lack of due process.

However, if the dismissal is not justified, the Wenphil doctrine and Rubberworld that the lack of due process before the dismissal of the employee was deemed corrected by the subsequent proceedings before the Labor Arbiter where the employee was given the chance to be heard, is not applicable.

The reason behind such ruling is that the finding by the Labor Arbiter as to the validity of the ground for dismissal is much more impartial and trustworthy than a determination by the employer who assumes the role of accuser and judge at the same time.