Procedural Due Process if not Observed in Employee Dismissal Renders Employers Liable for Nominal Damages (Part I)
Procedural due process is the how in employee dismissal. This is the procedure or the steps that need to be taken to terminate employment. If the employer disregards this process he can be held liable for nominal damages and to a certain extend it can even be deemed as an indicium of bad faith.
The post below is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 53-54).
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.
Procedural due process requires that the employee be given a notice of the charge against him, an ample opportunity to be heard, and a notice of termination.
Procedural due process for grounds falling under Article 282 means compliance with the following requirements of two (2) notices and a hearing:
1. 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;
2. 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
3. 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.
The rationale behind every requirement was detailed by the Court in another case 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; (To be continued on the next post)
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