Procedural Due Process Cannot be Replaced by Insufficient Notices and Procedures
Procedural due process in employee dismissal should be strictly observed. Other forms of notices intended for a different purpose and procedures cannot take the place of the mandatory requirement.
The post below is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 60-62)
For instance, in the following cases, the Supreme Court held that they are insufficient to comply with the procedural requirements:
Preventive suspension and investigation do not replace the two-notice requirement of due process. Such defect cannot even be cured by the hearings conducted in the NLRC. The employer is mandated to furnish the employee sought to be dismissed two notices, the written charge, and the notice of dismissal, if, after hearing, dismissal is indeed warranted.
Employer’s prior consultation with the labor union for the dismissal of an affiliated employee is not likewise sufficient compliance with the due process. Such consultation or consent is not a substitute for actual observance of those rights of the employee.
In a case where the company is organized (unionized) and the CBA provides for a union security clause, expulsion from the union still requires compliance with procedural due process before an employee can be dismissed by the company. Having security clause in the CBA ordinarily means an employee may be dismissed if he ceases to be affiliated with the union. There should be no automatic termination from the company upon expulsion from the union. The expelled member should be given a chance to explain his side.
This is the teaching of the Court in the case of Cariño vs. NLRC, where it ruled as follows:
“The company, upon being formally advised in writing of the expulsion of Cariño from the union, in turn simply issued a termination letter to him, the termination being made effective the very next day. The company should have given Cariño a chance to explain his side of the controversy with the union. Notwithstanding the union’s security clause in the CBA, the Company should have reasonably satisfied itself by its own inquiry that the Union had not been merely acting arbitrarily and capriciously in impeaching and expelling Cariño.”
The employee’s receipt of the demand letter from his employer to return the amount which he was required to collect from customers was certainly not even a substantial compliance with the twin-notice requirement, because the purpose of the demand letter was different from those defined for the sending of the required notices. Nor was he thereby allowed a meaningful opportunity to be heard or to be notified of his impending termination.
The first notice prior to dismissal based on just cause is known as the notice to explain or NTE as HR practitioners put it. Some call it show-cause memo or SCM. Others refer to it as show-cause order.
Whatever terminology may be used to call it, the essence is that the notice should apprise the employee charged of the offense and the fact that such offense may be ground for his dismissal. That way, he is given the opportunity to put up an intelligent defense against a possible loss of employment.
The first notice is not intended to inform the employee of his actual dismissal. That point is the subject of the second notice. Take note of the two-notice rule. First notice refers to the NTE or SCM, while the second notice pertains to the notice informing the employee that he is dismissed from service.
The law is not satisfied if only the second notice is served. As held by the Supreme Court there is no compliance with the due process requirement of the law if only the second notice is served on the employee informing him that he was thereby terminated from work but there was no earlier notice apprising him of the particular acts or omissions for which his dismissal was sought.
Comments (14)
… [Trackback]
[…] Here you can find 21213 additional Information on that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Read More to that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Find More on that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Information on that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Read More to that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] There you will find 99436 additional Info to that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Read More Information here on that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Find More to that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Read More on that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Read More Information here to that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Information to that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Find More Information here on that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Read More to that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
… [Trackback]
[…] Find More on that Topic: lvsbooks.com/procedural-due-process-cannot-replaced-insufficient-notices-procedures/ […]
Comments are closed.