Guideposts on Valid Dismissal of EmployeesAtty Elvin
The post below is based on the book Guide to Valid Dismissal of Employees (pp. 21-23).
The decision to dismiss an employee might arise from the fact that he stole a company property, falsified important documents, refused to obey lawful orders he is aware of or sexually harassed another employee.
Whatever may be the reason, the company comes to a point that it has to say goodbye to the offending employee.
But how should the employer do it the legal way?
Jurisprudence on dismissal of employees that is interwoven in a web of technical provisions of the Labor Code may be contained in a simple outline shown here. The technical nature of the law cannot be helped because any unresolved employment dispute ultimately leads to the labor court.
Such court is expected to decide the issues based on law, rules of procedure and jurisprudence. These are technical subjects not ordinarily catered to everyone’s interest.
However, a simple structure may help in overall understanding as follows:
First, by nature, human beings do not want to be penalized without valid reason. We find it unfair and unjust to simply be judged without any basis. This is the reason why our labor law requires cause, ground or reason for the imposition of dismissal as a penalty. Thus, for dismissal to be valid there must first be a lawful ground or cause. The ground or cause may be attributable to the employee, as in the case of commission of offense like theft, falsification, insubordination, etc. It may be due to causes not the fault of employee like redundancy of position, retrenchment or cessation or closure of business. In essence, there has to be a reason allowed by law for valid dismissal.
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Second, people do not like to be judged without being heard. We do not want to be penalized without our side being known first. This is the reason why employees should first be notified of the charge against them. While the prevailing rule is that the lack of notice does not invalidate a dismissal with lawful cause, it is required in dismissal that notices should be sent the employee to be disciplined. There must be two notices. The first one is known as the Notice to Explain (NTE) or show-cause memorandum. The second one is the notice of dismissal after a hearing/conference.
Third, The notice to explain or show-cause memo is of course a written document. In addition, the law requires a face-to-face interaction between the accuser and the one being charged in what is known as hearing or conference. Thus, the employee should be given an opportunity to a hearing/conference where he can face his employer or the latter’s representative and explain his side on the charge.
Lastly, there must be a second or final notice. The process does not stop after submission of the employee in writing of his reply and the hearing/conference. The employer should study the evidence, the reply of the employee to notice, testimony of witnesses, among other proof, and decide whether or not based on the evidence grounds have been established to justify dismissal. If the decision is to dismiss, the employer should issue the notice that the employee is terminated from service. Obviously, based on the procedure, this is the last notice since by then the employee will not be connected with the company.