Understanding the Process of Dismissal
The post is based on the book Guide to Valid Dismissal of Employees (pp. 27-29)
The employer, prior to dismissal must analyze the situation and circumstances involved. He must consider the offense committed and the appropriate penalty to be imposed. If dismissal is not the proper response, then the employer may resort to coaching, training or mentoring, as the case may be.
Dismissal is the ultimate penalty that can be imposed on an employee. Where a penalty less punitive may suffice, whatever missteps committed by a worker ought not to be visited with a consequence so severe for what is at stake is not merely the employee’s position, but his very livelihood and perhaps the life and subsistence of his family.
Thus, the employer may ask himself the following questions: Did the employee commit any violation? Is the violation so severe that dismissal is the appropriate action to take? If the answer is yes, the rules on just cause under Article 282 of the Labor Code should be observed.
Is the employee occupying a position that is redundant, has incurable and serious disease, etc.? If the answer is yes, the rules on authorized cause in Articles 283 and 284 must be complied with.
Note: Articles 282, 283, and 284 are now Articles 297, 298, and 299 with the re-numbering of the Labor Code pursuant to R.A. 10151 and per DOLE Advisory 01, Series of 2015. Re-numbered Labor Code, 2017 by Atty. Elvin B. Villanueva
Once the proper ground is known, the employer must establish the procedural requirements. Meaning, how should the employer go about the termination. Will he kick his employee cowboy style by simply shouting “you’re fired!” or send notices and invitation to a hearing/ conference? The procedure or procedural due process of termination is the “how” in dismissal. It is worth noting that the procedure for just cause and the authorized cause is not the same.
If the ground falls on just causes (Article 282), the law requires that notices should be sent to the employee. There must be at least two notices here. The first one is an inquiry about the actions of the worker while the other notice contains the decision. This is known in legal parlance as the two-notice rule.
Other than the notices, a hearing or conference must be conducted to give employee an opportunity to explain his side on the issue. The employee must be informed in writing of the hearing or conference after he has received the first notice. He must be notified also of his right to bring along a representative or counsel. In rare occasions, the employee brings a lawyer or support person in a hearing or conference.
After the hearing, the employer has at least a complete grasp of all the facts, the applicable personnel policy or an overview of the conclusion of the investigation. At this stage, the facts have become clearer. It might have already been established that justifications and evidence finally support the findings. Once the case has been established and there is substantial evidence to justify dismissal, the second and final notice must be sent. This last notice contains the statement of dismissal.
The notices and a hearing complete the procedural due process aspect of the employee dismissal. They are called the twin requirements.
Sample Notices to Explain, Hearing/Conference, and Dismissal are found for easy reference in the book HR Forms, Notices & Contracts Volume 2
The twin requirements of notice and hearing constitute essential elements of the statutory processes, and neither of these elements can be eliminated without running afoul of the procedural mandate.56 Do not confuse the twin requirements with the two-notice rule.
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