Substantive Due Process in Employee DismissalAtty Elvin
Substantive due process is one of the aspects of due process required to be observed in employee dismissal. Failure to comply with this requirement will render the dismissal illegal.
The post below is based on the book Guide to Valid Dismissal of Employees (pp. 51-53)
As discussed, there are two aspects of due process:
1) The procedural due process and
2) the substantive due process.
In order to validly dismiss an employee, it is fundamental that the employer observe both substantive and procedural due process – the termination of employment must be based on a just or authorized cause and the dismissal can only be effected, after due notice and hearing.
Under the Labor Code, the procedure for terminating an employee is found in Article 277 (b)24. It is Rule XXIII of Book V of the Implementing Rules, as amended by D.O. No. 9, June 21, 1997. The implementing rules provide for the two facets of dismissal of an employee for cause other than that authorized by the Labor Code.
The two facets of this legal provision are:
1. The legality of the act of dismissal, that is, dismissal under the grounds provided for under Article 282 [now Article 297 in a re-numbered Labor Code] of the Labor Code; and
Batas Pambansa Blg. 130, in amending paragraph (b) of Article 278 of the Labor Code, imposed as a condition sine qua non that any termination of employment under the grounds provided in Article 282 of the Labor Code must be done only after notice and formal investigation having been accorded to the supposed errant worker.
The requirement of due process is two-fold, thus:
1. Substantive aspect; and
2. Procedural aspect
Substantive due process mandates that an employee can only be dismissed based on just or authorized causes.
It simply dictates that no arbitrary or whimsical dismissal of an employee may be effected by the employer. The employer shall not terminate the services of an employee except for a just cause or when authorized by law.