Due Process
Topic 7
Due Process
NO PERSON SHALL BE DEPRIVED OF
LIFE, LIBERTY OR PROPERTY
WITHOUT DUE PROCESS OF LAW,
NOR SHALL ANY PERSON BE DENIED
EQUAL PROTECTION OF THE LAWS.
Philippine Constitution Article III,
Section 1
Due Process
• Due process is essentially the observance of substantive due
process (i.e. causes/grounds) and procedural due process
(i.e. steps/procedure) prior to the termination of employment or
separation from employment.
• Due process implements the constitutional provisions on security
of tenure.
• Procedural due process is different for just cause and authorized
cause.
• Non-compliance with due process may result in liability.
Due Process
• Due process, as a constitutional precept, does not always and in
all situations require a trial-type proceeding.
• Due process is satisfied when a person is notified of the charge
against him and given an opportunity to explain or defend himself.
• In administrative proceedings, the filing of charges and giving
reasonable opportunity for the person so charged to answer the
accusations against him constitute the minimum requirements
of due process.
• The essence of due process is simply to be heard, or as applied
to administrative proceedings, an opportunity to explain one’s side,
or an opportunity to seek a reconsideration of the action or ruling
complained of.
Facets of Valid Termination
1. Legality of the dismissal
2. Legality of the manner of dismissal
“Dismissal of regular employees by the employer requires the
observance of the two-fold due process, namely: (1) substantive
due process; and (2) procedural due process.
SUBSTANTIVE DUE PROCESS
Substantive due process means that the dismissal must be for any of the: (1) just causes
provided under Article 297 of the Labor Code or the company rules and regulations
promulgated by the employer; or (2) authorized causes under Article 298 and 299 thereof.
Just Causes Authorized Causes
1. Serious misconduct 1. Installation of labor-saving devices;
2. Willful disobedience to lawful 2. Redundancy
orders 3. Retrenchment
3. Gross and habitual neglect of duty 4. Closing or cessation of business
4. Fraud or willful breach of trust operations
(and confidence) 5. Disease
5. Commission of a crime or offense
6. Other analogous causes
Substantive Due Process
• Substantive due process is divided into just causes or authorized
causes.
• Just causes are grounds for termination of employment.
• Authorized causes are grounds for separation from employment.
• If there is no substantive due process, i.e. no just cause or
authorized cause, the employer may be held liable for illegal
dismissal.
Consequence if there is no substantive due process
• If there is no substantive due process, such as there is no just
cause or authorized cause, in the termination or separation from
employment of an employee, the employer may be held liable for
illegal dismissal.
• Illegal dismissal may result in the employer being held liable for
full backwages, reinstatement, moral damages, exemplary
damages, monetary claims, attorney’s fees.
Procedural Due Process
PROCEDURAL DUE PROCESS
• Procedural due process refers to the process of termination of
employment due to just causes or separation of employment due to
authorized causes.
• Procedural due process is that which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial. It
contemplates notice and opportunity to be heard before judgment is
rendered affecting one's person or property.
• Just cause procedure refers to the process for termination of
employment due to just causes. Authorized cause procedure refers to the
process for separation of employment due to authorized causes.
• Procedural due process means that the employee must be accorded due
process required under Article 292(b) of the Labor Code, the elements of
which are the twin-notice rule and the employee’s opportunity to be
heard and to defend himself.
1. Security of Tenure
2. Proof of Service
Article 292 b
(b) 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, 226 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.
Security of Tenure
Labor Code Book Six – Post Employment
ART. 294. [279] Security of Tenure. In cases of regular employment, the
employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the
time of his actual reinstatement.
Proof of Service
• refers to evidence presented before a labor court to show or
establish that proper service of a required notice or document
has been served to a person.
• Service – refers to the act of delivering a notice or document
to a person.
• Delivery – refers to the act of handing, giving, or dropping a
notice or document in the physical/actual presence of the
person intended to be served.
Proof of Service
1. Mail Service - refers to the delivery of a notice or document by
mail.
a. Affidavit of Service by Mail
b. Philippine Post Office Return Card
2. Personal Service - refers to the delivery of a notice or
document personally to and in the presence of, preferably in
front of, the intended recipient.
a. Signed Receiving Copy
b. Affidavit of Personal Service
Cardinal Principles of Procedural Due Process
1. The respondents’ right to a hearing, which includes the right to
present one’s case and submit supporting evidence, must be
observed.
2. The hearing committee must consider the evidence presented.
3. There must be substantial evidence.
4. The decision must have some basis to support itself.
5. The decision must be rendered on the evidence presented at
the hearing or at least contained in the record and disclosed to
the parties affected.
6. The decision must be rendered in such manner that
respondents would know the reasons for it and the various
issues involved.
Just Cause Procedural Due Process
Overview
• Just cause procedure refers to the steps or process of implementing
due process in relation to termination of employment.
• There are 3 steps in a just cause procedure.
• If there is no just cause procedure, the dismissal may be valid but the
employer may be held liable for nominal damages.
Procedural Due Process – JUST CAUSE
General Procedure:
Step 1: Issuance of 1st Written Notice (Notice to Explain)*
Step 2: Observance of Ample Opportunity to Explain
Step 3: Issuance of 2nd Written Notice (Notice of Decision)*
*Twin Notice Rule
1. Notice to Explain
This is a notice charging the employee of the particular acts or omissions that may
cause his dismissal.
2. Notice of Decision
The subsequent notice which informs the employee of the employer’s decision.
Procedural Due Process – JUST CAUSE
Step 1: Issuance of 1st Written Notice (Notice to Explain)
Step 2: Observance of Ample Opportunity to Explain
Step 3: Issuance of 2nd Written Notice (Notice of Decision)
Step 1: Issuance of 1st Written Notice (Notice to Explain)
This notice should contain (per DO 147-15):
1. The specific causes or grounds for termination as provided for under the
Labor Code, as amended, employment contract, and company policies, if
any.
2. Detailed narration of facts and circumstances that will serve as basis for
the charge against the employee. A general description of the charge will
not suffice.
3. A directive that the employee is given opportunity to submit a written
explanation within a reasonable period, which should be at least (5)
calendar days.
Step 1: Issuance of 1st Written Notice (Notice to Explain)
The NTE is required to be served, and not necessarily received.
Consequently, it is required that the service of the NTE should be
proven. The evidence is referred to as proof of service. Without
this evidence, the NTE might be considered as self-serving – i.e. it
was fabricated or only printed and signed by the
employer after and once there is already an illegal dismissal case.
Step 1: Issuance of 1st Written Notice (Notice to Explain)
The following are the recognized options for proof of service:
1. Signed receiving copy from the employee.
2. Affidavit of Personal Service.
3. Return Card from the Registered Mail with the Philippine Post
Office.
4. Return of the Sealed Envelope with Postman’s Annotations.
5. Certification from the Philippine Post Office.
Step 1: Issuance of 1st Written Notice (Notice to Explain)
How NTE can be served:
1. Face to face with employee
2. Last known address of employee
3. All means necessary (email address, social media to supplement
the first 2 options of serving the notice)
Procedural Due Process – JUST CAUSE
Step 1: Issuance of 1st Written Notice (Notice to Explain)
Step 2: Observance of Ample Opportunity to Explain
Step 3: Issuance of 2nd Written Notice (Notice of Decision)
Step 2: Observance of Ample Opportunity to Explain
The ample opportunity to explain is satisfied by either giving the employee
the chance to defend himself/herself via:
1. A written explanation; or,
2. A formal administrative hearing.
Notes:
“Ample opportunity to be heard” means any meaningful opportunity (verbal
or written) given to the employee to answer the charges against him/her
and submit evidence in support of his/her defense, whether in a hearing,
conference or some other fair, just and reasonable way. A formal hearing
or conference becomes mandatory only when requested by the employee
in writing or substantial evidentiary disputes exist or a company rule or
practice requires it, or when similar circumstances justify it. – DO 147-15
Section 5.1 (b)
Step 2: Observance of Ample Opportunity to Explain
Employees must be given at least five (5) calendar days from receipt of the
first written notice (NTE) to prepare their defense. This period allows them
to study the allegations, consult a lawyer or union representative, gather
evidence, and prepare their explanation.
A formal administrative hearing is generally optional and left to the
employer’s discretion. However, a hearing becomes mandatory when:
1. The employee requests it in writing,
2. There are substantial disputes in evidence,
3. Company policy or established practice requires it, or
4. Similar circumstances justify the need for one.
If the employee fails to submit a written explanation or does not attend a
scheduled hearing, the employee is considered to have waived their right
to be heard.
Procedural Due Process – JUST CAUSE
Step 1: Issuance of 1st Written Notice (Notice to Explain)
Step 2: Observance of Ample Opportunity to Explain
Step 3: Issuance of 2nd Written Notice (Notice of Decision)
Step 3: Issuance of 2nd Written Notice (Notice of Decision)
1. The employer shall issue a 2nd Written Notice to the employee after
evaluating all available pieces of evidence and the explanation of the
employee, if any.
2. The results may either be that the employee is innocent or guilty.
3. If the employee is innocent, the 2nd written notice will indicate so. This
is often referred to as a Notice of Results.
4. If the employee is guilty, the 2nd written notice shall state that all
circumstances involving the charge against him/her have been
considered and grounds have been established to justify the imposition
of a penalty. This is often referred to as a Termination Notice.
(Paragraph 2, Section 5.1[c], DO-147)
5. The penalty may either one of the following: verbal reprimand, written
warning, suspension, dismissal.
Step 3: Issuance of 2nd Written Notice (Notice of Decision)
Similar to the NTE, the NOD is required to be served and not
necessarily received.
There should be proof of service of the NOT via any of the
recognized modes of service listed in the earlier section under the
discussions on NTE. For emphasis, without the proof of service,
there is no evidence to show that the NOR was served to the
employee.
Consequence for non-compliance of procedure
Failure to strictly comply with the requirements of procedural due
process in dismissing an employee does not invalidate the
dismissal if it is based on a just cause or an authorized cause.
However, under the Agabon doctrine, the employer is liable
for ₱30,000 nominal damages when the dismissal is for a just
cause but procedural due process was not properly observed.
Authorized Cause
Procedural Due Process
Overview
• This refers to the steps or process of implementing due process in
relation to separation from employment.
Procedural Due Process – AUTHORIZED CAUSE
General Procedure:
Step 1: Issuance of 30-day advance notice to DOLE
Step 2: Issuance of 30-day advance notice to employee
Step 3: Payment of Separation Pay
Step 1: 30 days notice to DOLE
• The employer is required to issue a 30-day advance notice to the DOLE
Regional Office which has jurisdiction over the establishment. (DOLE
Department Order No. 147, Series of 2015, Sections 5.3) using the RKS
Form 5 (via ERS portal).
• This advanced notice is designed to give the concerned office an
opportunity to confirm/verify the existence of authorized causes by
means of either calling for a hearing/conference or an inspection.
Step 2: 30 days notice to Employee
• The employer is required to issue a 30-day advance notice to the
employee informing the latter of the circumstances in relation to his/her
being separated from employment due to an authorized cause. (DOLE
Department Order No. 147, Series of 2015, Sections 5.3)
• The advanced notice is designed to give the employee the opportunity to
start looking for his/her next gainful employment. This is without
prejudice to him/her completing the 30-day period for transition and
turn-over.
Step 3: Payment of Separation Pay
• For Redundancy or Installation of Labor-Saving Devices
The employee is entitled to separation pay equivalent to one month’s
salary for every year of service. A fraction of a year of at least six
months is considered a full year.
• For Retrenchment, Cessation of Business, Termination Due to Disease
The employee is entitled to a separation pay equivalent to half a
month’s salary for every year of service.
NOTE: In Case of Illegal Dismissal (When Reinstatement is Not Possible)
The courts may grant separation pay as an alternative to reinstatement. The amount of separation
pay in these cases is generally one month’s salary for every year of service but may vary based on
the specifics of the case and court rulings.
Filing a Claim for Separation
• If an employee believes they have been wrongfully denied separation pay,
they may file a complaint with the Department of Labor and Employment
(DOLE) or the National Labor Relations Commission (NLRC).
• The employee must present evidence that they were terminated for an
authorized cause and that they did not receive the appropriate separation
benefits.
Consequence for non-compliance of procedure
For dismissals based on an authorized cause, the Jaka
doctrine applies, under which the employer is liable for ₱50,000
nominal damages for failure to comply with the required
procedural steps. In both doctrines, the dismissal remains valid
because the substantive ground is justified, but the employer
must pay nominal damages for violating the employee’s statutory
right to procedural due process.”