Notice of Administrative Hearing or Conference: Rationale Behind the Requirement; Sample Notice
As opposed to substantive, procedural due process refers to the procedure involved in the dismissal of an employee. Notices and hearing or conference belong to this aspect. Procedural due process requires further that an employee can only be dismissed after he has been given an opportunity to be heard. (Page 55, Guide to Valid Dismissal of Employees, 2nd Edition, citing See Maneja vs. NLRC and Manila Midtown Hotel, G.R. 124013, June 5, 1998.)
Procedural due process for grounds falling under Article 282 [now Art. 297] of the Labor Code, means compliance with the following requirements of two (2) notices and a hearing:
- A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity to explain his side;
- A hearing or conference 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; and
- A written notice of termination served on the employee indicating that upon due consideration of all circumstances, grounds have been established to justify his termination.
What is the reason behind said requirements?
According to the Supreme Court, the rationale behind every requirement is as follows:
(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 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: (a) explain and clarify their defenses to the charge against them; (b) present evidence in support of their defenses; and (c) 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; and
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (a) all circumstances involving the charge against the employees have been considered; and (b) grounds have been established to justify the severance of their employment.
However, the Supreme Court, in the case of Perez vs. PT&T (G.R. No. 152048, April 7, 2009), declared that:
“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. ‘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.
This Court has consistently ruled that the due process requirement in cases of termination of employment does not require an actual or formal hearing.”
Further, the SC held in the PT&T case that 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. To this extent, we refine the decisions we have rendered so far on this point of law.
Hence, if there are company rules or practices that require an actual hearing, the administrative hearing/conference should be held. Where there is none, then the administrative hearing/conference should only be done upon written request of the employee charged.
To: Mon G. Lloyd Cruz
Date September 30, _______
Subject: Administrative Hearing / Conference
In relation to the charge against you of violation of Sec. 1 of the company’s Code of Conduct, or the ground falling under par. b of Art. 297 of the Labor Code, or the Gross and Habitual Neglect of duty, you are hereby being invited to a hearing/conference to be held, as follows:
Thus, you may bring with you your counsel or support person if you desire.
Failure on your part to attend said hearing/conference shall be deemed as waiver of your right to due process. For your guidance.
PAT I. CANA