Procedural Due Process if not Observed in Employee Dismissal Renders the Employer Liable for Nominal Damages (Part 2)
Procedural due process is an important requirement in employee dismissal. While under the prevailing doctrine the absence or defect thereof will not render the dismissal illegal, it can establish employer’s liability for indemnity in the form of nominal damages.
The post below is based on the book Guide to Valid Dismissal of Employees Second Edition.
…Continuation
(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. For sample notices to explain, notice of hearing and notice of dismissal for various offenses, you may check the author’s books Human Resource Forms, Notices & Contracts Volumes One and Two.
In a 2010 case, the Supreme Court held that with respect to due process requirement, the employer is bound to furnish the employee concerned with two (2) written notices before termination of employment can be legally effected. One is the notice apprising the employee of the particular acts or omissions for which his dismissal is sought and this may loosely be considered as the proper charge. The other is the notice informing the employee of the management’s decision to sever his employment. This decision, however, must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge, thereby giving him ample opportunity to be heard and defend himself with the assistance of his representative should he so desire.
The requirement of notice, it has been stressed, is not a mere technicality but a requirement of due process to which every employee is entitled. Distinct requirements have been imposed by the Labor Code and jurisprudence depending on the ground for dismissal or termination.
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