Lack of First Written Notice in Employee Dismissal is Non Compliance with Procedural Due Process

Lack of First Written Notice in Employee Dismissal is Non Compliance with Procedural Due Process

Procedural due process is required in employee dismissal. Failure to comply shall result in the imposition of indemnity in the form of nominal damages.

Due process under the Labor Code involves two aspects: first, substantive––the valid and authorized causes of termination of employment under the Labor Code; and second, procedural––the manner of dismissal. In the present case, the CA affirmed the findings of the labor arbiter and the NLRC that the termination of employment of respondent was based on a “just cause.” This ruling is not at issue in this case. The question to be determined is whether the procedural requirements were complied with.

Art. 294 of the Labor Code, as amended, provides that subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause without prejudice to the requirement of notice under Article 283 (now Article 298) of the Labor Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment.

Accordingly, the implementing rule of the aforesaid provision states:

SEC. 2. Standards of due process; requirements of notice.––In all cases of termination of employment, the following standards of due process shall be substantially observed:

  1. For termination of employment based on just causes as defined in Article 282 [now Art. 297] of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and giving

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said employee reasonable opportunity within which to explain his side.

(b) 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.

(c) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employee’s last known address.

Thus, the Supreme Court (SC), held in the case of King of Kings Transport, Inc. vs. Mamac [G.R. No. 166208, June 29, 2007] that the following should be considered in terminating the services of employees:

  1. The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 [now Art. 297] is being charged against the employees.
  2. After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
  3. After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

For instance, in the case of Bance, et al. vs. University of St. Anthony [G.R. No. 202724, February 3, 2021], the SC held that to comply with the requirement of procedural due process, two written notices must be issued.

The first written notice should contain the specific causes or grounds for termination against the employee. The second written notice contains the decision terminating the employment after considering all circumstances involving the charge.

Where it appears that in the events leading to employee’s dismissal, two conferences were held, after which, a notice of termination of employment was issued but without the first notice (Notice to Explain), the SC held that this is not compliant with the requirements established by law.

Conferences and verbal announcements do not suffice as substitute for the requisite first written notice. Applying Agabon v. National Labor Relations Commission, the employee in such case is entitled to nominal damages in the amount of PhP30,000.00.

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Read more on procedural due process discussion by Atty. Elvin:

Read more on procedural due process by Atty. Villanueva:

Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements

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