TWIN REQUIREMENTS AND TWIN-NOTICE RULE
When an employee commits serious offense against the company, he may be dismissed from service.
There is a lawful cause for dismissal. Serious offense may include gross and habitual neglect of duty, willful disobedience, willful breach of trust or other causes which the Labor Code specifically considers as ground for dismissal.
Grounds for dismissal due to the worker’s fault is known as just causes under Article 282 [now Article 297] of the Labor Code, as amended. However, not all dismissals may result from commission of a punishable act under the company policy or the law. It may also arise from circumstances beyond the control of the employee such as installation of labor saving devices, redundancy, retrenchment to prevent further losses, cessation of operation, closure of establishment and disease.
Grounds for dismissal not due to worker’s wrongdoing is known as authorized causes under Article 283 [now Article 298] and 284 [now Article 299] of the Labor Code, as amended. There are guidelines to observe in carrying out valid dismissal. These requisites are mandated by the law, such as under Article 277 of the Labor Code in relation to Article 279, Article 280 and Article 281.
The implementing rules and regulations of Articles 106-109 also reiterate the requirements for valid dismissal as set forth in DOLE’s Department Order No. 18-A Series of 2011. Some of these doctrines emanate from jurisprudence or decisions of the Supreme Court.
For the just cause, the employer must observe the twin requirements consisting of 1.) two notices [Notice to Explain and Notice of Dismissal] and 2.) a hearing/conference. For the notice requirement, he must comply with the two-notice rule, which requires that an employee to be dismissed must be given a chance to explain his side. Said chance must be expressed in writing containing the narration of the circumstances as basis for the charge. This is known as the notice to explain or showcause memorandum.
The worker must be given a period of at least five (5) calendar days from receipt of the first notice within which to submit his written explanation. Then, the employer must hold a hearing/conference with the employee charged who may desire to bring along his support person or counsel. Once the hearing/conference has been concluded and all the pieces of evidence, testimonial or documentary, have been submitted, the employer may decide to dismiss the employee if there is sufficient basis. The decision to dismiss must be expressed in writing and sent to the employee clearly stating his dismissal after careful evaluation of the evidence gathered. This is the second notice in the two-notice rule.
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