Valid Dismissal – Right to be HeardAtty Elvin
The post below is based on the book Guide to Valid Dismissal of Employees (pp. 36-38)
Dismissal is an act that must be taken with extra caution since employer-employee relationship presents two rights that must be placed in perfect equipoise otherwise the legal consequence would be costly. Complete appreciation of doctrines, legal basis and facts surrounding each particular case must be made to arrive at a just, safe and valid dismissal.
In the past, employee dismissal required clearance from the Ministry of Labor. However, through Batas Pambansa Bilang 130 which was approved on August 21, 1981 such requirement was abolished. Instead of clearance from DOLE, service of a written notice to the workers affected and the DOLE in cases of dismissals under Article 283 of the Labor Code must be complied with.
The present practice allows employer to dismiss the employee if he likes without any imprimatur of the DOLE. But employees terminated have a right to contest the validity of their separation from service pursuant to Article 277 of the Labor Code, as amended, which provides, in part, that:
“xxx Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment.
Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer.
The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, Republic Act No. 6715, March 21, 1989)” [Emphasis supplied]
Relative to this, the Supreme Court has ruled that:
“Thus, compliance by the employer with the notice requirement before he dismisses an employee does not foreclose the right of the latter to question the legality of his dismissal. As Art. 277(b) provides, “Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission.”
Hence, before blurting out Mr. Trump’s famous line, the HR practitioner should think twice and make sure that he has the just or authorized causes to back it up. He should make sure that any form of dismissal of workers must follow the guidelines discussed earlier.