procedural due process Archives - Page 2 of 3

10 Mar

Dismissal of Employee Does not Involve his Property in Constitutional Sense

Dismissal of an employee requires observance of due process. There are two aspects of due process, the substantive and the procedural. The usual dispute involves failure to notify the employee to explain the charge, attend hearing/conference, and notice of dismissal. Does failure to provide notice or opportunity for a hearing to the employee violate his constitutional right to his property? Is his job property in constitutional sense? Previously, court decisions consider the right of a person to his labor to be [...]

04 Jun

Notice to Explain vs. Investigation Report: Does the Company Need to have Both?

Notice to Explain (NTE) is one of the steps required in employee discipline. Most importantly it is mandatory to be issued in the case of employee termination. NTE is part of the procedural due process mandated by law. Not to make the valid termination illegal but to ensure that the right to due process is respected. Failure to issue the NTE violates this process and renders the employer liable for indemnity in the form of nominal damages. In some establishments, especially [...]

By Atty Elvin Labor Law atty. elvin, employee discipline, Just Cause, labor, Labor Code, labor law, Notice to Explain, NTE, procedural due process 14 Comments Read more...

27 May

Procedural Due Process is Not Complied with if the Employer Fails to Observe its Internal Rules

Acquire Mastery of HR/Labor Doctrines, Rules and Principles with Atty. Elvin’s HR Bundle Books at Discounted Rate Procedural due process is one of the two aspects of due process that must be complied with by the employer. Due process under the Labor Code involves two aspects: first, substantive––the valid and authorized causes of termination of employment under the Labor Code; and second, procedural––the manner of dismissal. In the present case, the CA affirmed the findings of the labor arbiter and the [...]

By Atty Elvin Labor Law procedural due process 10 Comments Read more...

08 Aug

Remedy when Employee Refused to Receive the Notice to Explain (NTE)

The Notice to Explain or NTE is one of the documents required or needed to serve to an employee who is under investigation for violation of company rules. It is served whether or not the violation is punishable with light penalties or even dismissal. Light penalties refer to warning or suspension which is less grave than dismissal. The service of NTE is part of the procedural due process requirements. As opposed to substantive, procedural due process refers to the procedure involved in [...]

By Atty Elvin Labor Law Notice to Explain, NTE, procedural due process 18 Comments Read more...

05 Aug

Additional Charges in the Notice of Termination Require New NTE

The additional grounds cited in the notice of termination which were not mentioned in the NTE issued to the employee violated the right to be informed of the administrative charges against her. The NTE and the notice of termination did not state the specific acts that constituted breach of company policies resulting in loss of trust and confidence and the specific company policies that were violated. As opposed to substantive, procedural due process refers to the procedure involved in the [...]

By Atty Elvin Labor Law loss of trust and confidence, Notice to Explain, procedural due process 18 Comments Read more...

15 Jun

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 [...]

By Atty Elvin Labor Law procedural due process 17 Comments Read more...

13 Jun

Dismissal Requires Observance of Due Process and Applies Even to Those Who Have Limited Security of Tenure

Dismissal is a crucial decision that affects both the employer and the employee. On the part of the latter, it impacts on his livelihood. Hence, procedural due process is required to be observed to prepare the individual on the eventual separation. The requirement of due process is not limited to regular employees. It also applies to all forms of employment that are not permanent in nature such as seasonal, project, casual, etc. Seasonal employees unlike the regular workers do not enjoy [...]

By Atty Elvin Labor Law dismissal, procedural due process 22 Comments Read more...

10 Jun

Termination Due to Authorized Cause Requires Observance of Procedural Due Process

Termination due to authorized cause under Article 299 of the Labor Code, as amended requires compliance by employer of the procedural due process. It used to be Article 284 prior to re-numbering of the Labor Code per R.A. 10151. Re-Numbered Labor Code per DOLE Department Advisory 01, Series of 2015 The post below is based on the book Guide to Valid Dismissal of Employees Second Edition (pp. 56-57). For termination based on authorized causes, that is, retrenchment, redundancy, etc., under Article 283, the [...]

By Atty Elvin Labor Law Authorized Cause, procedural due process 21 Comments Read more...

09 Jun

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 [...]

By Atty Elvin Labor Law procedural due process 15 Comments Read more...

06 Jun

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 [...]

By Atty Elvin Labor Law procedural due process 17 Comments Read more...

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