Procedure in Firing an Employee for a Just Cause

Christian Andrew Labitoria Gallardo[1]and Atty Renato Magbalon III[2]

In movies, and most especially in cartoons, firing an employee may seem such an easy thing to do. A hot headed boss who could not tolerate the mistakes of an employee can, at a whim, remove an employee from the payroll. Legally tho, is it right? In the first installation of this article, we have discussed the different just causes of termination prescribed by the Labor Code. As promised, in this second installment, we shall discuss the proper procedure for terminating an employee, as well as their rights, if any, to a final pay.


Terminating an employee based on a just cause requires two written notices with an opportunity to be heard in between, usually in the form of a conference with the superiors. Let us break it down in a step-by-step procedure.


First Written Notice

Upon committing an act which the employer deems serious enough to warrant termination, a first written notice or memo which gives a detailed narration of the facts and circumstances serving as the basis for termination, and a specific cause for termination under the law or the company policy, must be given.[3] Note that a general description of the facts surrounding the incident is not enough. It must be as detailed as possible to afford the employee a real opportunity to study his case. [4] The specific cause for termination must be one of those discussed in the previous installation of this article. Finally, the first written memo must contain a directive for the employee concerned to submit a written explanation within a reasonable period, which should not be less than five (5) days from the receipt of the memo of the employee.[5]


Applying the above principles, the Butler should write down the fact that, in his failed attempt to catch Jerry the Mouse, Thomas the Cat has broken so many plates, even tumbling down a delicious-looking plate in the process. I just hope that it is not Crème Brulee Cake from The Pastry Cart. For that, a termination for serious misconduct and gross and habitual neglect of duties is being examined, and Thomas the Cat must submit his explanation within seven (7) days.


Opportunity to be Heard and Second Written Notice


Thereafter, an opportunity to be heard must be given to employees. Note however that this opportunity to be heard need not be in writing, so long as an opportunity to submit pieces of evidence in his defense must be given. It may therefore be in an informal hearing, conference or even through written correspondence.[6] Interrogation of witnesses, or any technical procedures usually applied in court, does not generally apply in company investigations.[7] A formal hearing becomes necessary only when so requested by the employee, when substantial evidentiary disputes exist, or when company policy and practice provides for such.[8] If a hearing is set however, it must proceed notwithstanding the fact that the employee failed to answer.[9]


If, after considering the pieces of evidence adduced by the employee, the employer nonetheless finds the termination to be justified, a written notice must be served once more indicating that all circumstances have been considered and severance of employment is justified.[10]


Applying these principles, Thomas can submit photographs showing that it was not he who ruined the kitchen of the mansion, but his archnemesis Jerry. If however the butler still believes that Thomas acted recklessly in allowing the mouse to create such a ruin in their chase, another written notice must be served to him bearing the bad news.


Preventive Suspension


While not explicitly provided for in the Labor Code, the Court recognizes the need to suspend the employee under investigation when his continued presence in the premises poses a serious threat to the safety of his or her superiors or coworkers.[11] Hence, suspension of an employee is not a necessary step in making an investigation, and a clear showing that the employee concerned poses a threat to his co-workers must be made to justify a suspension.[12] If the reason for the investigation is the increasing number of unauthorized absences or tardiness, a preventive suspension is not proper.[13]


The preventive suspension shall last only for a period of thirty (30) days, during which the employee concerned shall not be entitled to any wages and benefits under the “no work, no pay” principle.[14] If the employer deems it necessary however, such as when the investigation is taking some time, he may extend it beyond the period of thirty (30) days, provided that the employee shall be paid thereon as if he or she is working.[15] The reason for the extension of the investigation must however be clear. An Indefinite suspension is deemed as a constructive dismissal.[16]


Failure to Comply


Failure to comply with the above procedural rule however does not invalidate the termination if there is indeed a just cause for termination. As compensation however for depriving the employee concerned of his or her right to due process, the Court awards Thirty Thousand Pesos (Php 30,000.00) as damages. To sum things up, an employee, no matter how worse his or her mistake is, is entitled to a due process before termination. If proven however that he indeed committed a just cause for termination, he shall not be entitled to any separation pay, with his final pay consisting only of the proportion of the salary corresponding to the last month of work. Good news for Thomas however. He is entitled to at least Php 30,000.00 worth of damages for non-compliance with the procedural due process for his termination. With the end of our discussion on just causes of termination, we shall discuss another set of causes of termination where the employer is, without malice, compelled to terminate the service lf an employee. Meanwhile, please join our facebook page below for free legal advice.


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Cover photo from: clipart-library.com

[1] Christian Andrew Labitoria Gallardo is a recent graduate of the Ateneo School of Law with a Juris Doctor degree, and is currently an associate of the Sangalan and Gaerlan, Business Lawyers, a law firm specializing in labor, corporate and business law. You may reach him through a phone call or message (09157042132) or via email (andrew.gallardo@paladinslaw.org). [2] Renato P. Magbalon III, young, dynamic, and a problem-solver lawyer from the University of Santo Tomas Faculty of Civil Law, currently an associate lawyer and business law coach at Sangalang & Gaerlan, Business Lawyers. You may reach him at renato.magbalon@paladinslaw.org. [3] § 5.1 (a), DO 147-15. [4] Id. [5] King of Kings Transport Inc v Mamac, G.R. No. 166206 (2007). [6] Perez v Philippne Telegraph and Telephone Company, G.R. No 152048 (2009). [7] Alcantara v PCIB, G.R. No. 151349 (2010). [8] § 5.1 (a), DO 147-15. [9] Galus v Quality House Inc, G.R. No 156766 (2009). [10] Id. [11] Role XXIII, Book V of the Rules to Implement the Labor Code. [12] PNB v Velasco, G.R. No 166096 (2008). [13] Valiao v CA, G.R. No. 146621 (2004). [14] Department Order no 9 series of 1997 [15] Id. [16] Pepsi Cola Products of the Philippines v NLRC, G.R. No. 106831 (1997).

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