The procedure just cause requires observance of these 3 steps:

1) 1st Written Notice (a.k.a. Notice to Explain);

2) Ample Opportunity to be Heard; and

3) 2nd Written Notice (a.k.a. Notice of Results).

DOLE D.O. 147-15 explains the procedural due process as follows:

5.1 Termination of Employment Based on Just Causes. As defined in Article 297 of the Labor Code, as amended, the requirement of two written notices served on the employee shall observe the following:

(a) The first written notice should contain:

1. The specific causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and company policies, if any;

2. Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. A general description of the charge will not suffice; and

3. A directive that the employee is given opportunity to submit a written explanation within a reasonable period.

“Reasonable period” should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation, consult or be represented by a lawyer or union officer, gather data and evidence, and decide on the defenses against the complaint.

(b) After serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 299 (b) of the Labor Code, as amended.

“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.

(c) After determining that termination of employment is justified, the employer shall serve the employee a written notice of termination indicating that: (1) all circumstances involving the charge against the employee have been considered; and (2) the grounds have been established to justify the severance of their employment.

The foregoing notices shall be served personally to the employee or to the employee’s last known address.” (Emphasis and underscoring supplied.)

The procedural due process may be completed within 7 days considering that the rules require only at least 5 calendar days to be extended to an employee as a reasonable period within which to explain his side.

1) 1st Written Notice (NTE)

The 1st Written Notice is also known as the Notice to Explain (or NTE).

As indicated the earlier section, DOLE D.O. 147-15 requires that the following reflected in the NTE to be served on the employee:

1) The specific causes or grounds for termination as provided for under Article 297 of the Labor Code, as amended, and company policies, if any;

2) Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee.; and

3) A directive that the employee is given opportunity to submit a written explanation within a reasonable period.

For the narration of facts and circumstances, it should be detailed in order for the employee to know what it is all about and to thus provide for an intelligent reply. Thus, the rules declare as insufficient a general description.

a) Proof of Service

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.

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; or

5) Certification from the Philippine Post Office.

For the signed receiving copy, the employer should ensure that the name, signature, and date of signing by the employee is reflected on the NTE.

In case the employee refuses to sign a receiving copy, the employer may serve the NTE by leaving a copy in front of the employee. Thereafter, the one who served the notice to the employee will prepare and sign an Affidavit of Service, which will then be notarized, to serve as the proof of service. Do note that this is an affidavit and thus the contents thereof should be truthful and correct to avoid perjury. 

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CASE STUDY

Mansion Printing Center v. Bitara

G.R. No. 168120, 25 January 2012

[The employee – a Driver – claimed that he was not validly served with the Termination Notice.]

In Bughaw v. Treasure Island Industrial Corporation, this Court, in verifying the veracity of the allegation that [the employee] refused to receive the Notice of Termination, essentially looked for the following: (1) affidavit of service stating the reason for failure to serve the notice upon the recipient; and (2) a notation to that effect, which shall be written on the notice itself. Thus:

xxx Bare and vague allegations as to the manner of service and the circumstances surrounding the same would not suffice. A mere copy of the notice of termination allegedly sent by [the employer] to [the employee], without proof of receipt, or in the very least, actual service thereof upon [the employer], does not constitute substantial evidence. It was unilaterally prepared by [the employer] and, thus, evidently self-serving and insufficient to convince even an unreasonable mind.

[In this case, the employer], on the other hand, did both. First, he indicated in the notices the notation that [the employee] “refused to sign” together with the corresponding dates of service. Second, he executed an Affidavit dated 29 July 2000 stating that: (1) he is the General Manager of the company; (2) he personally served each notice upon [the employee], when [the employee] went to the office/factory on 17 March 2000 and 21 March 2000, respectively; and (3) on both occasions, after reading the contents of the memoranda, [the employee] refused to acknowledge receipt thereof. We are, thus, convinced that the notices have been validly served. (Emphasis supplied.)

•••

In the cases of signed receiving copy and affidavit of service, they presuppose that the notice was personally served in front of and in the presence of the employee. If the employee is absent or not around, these modes of service cannot be resorted to by the employer.

The next option of the employer is to send the NTE to the employee’s last known address via Registered Mail with Return Card at the Philippine Post Office. Once the envelope containing the NTE is served on the employee or whoever may have received it, the postman/mailman will have the return card signed as proof that the service was made. Then, the return card will be delivered to the employer. The return card will serve as the proof of service.

In some cases, the sealed envelope with the NTE is returned back to the sender (the employer) with annotations like: return to sender, moved out, cannot be located, and similar thereto. If this happens, jurisprudence states that the NTE is deemed served. After all, it is the employee’s responsibility to provide for the correct address or inform the employer for any change of his address. Thus, what is sufficient is that the notice be sent to the last known address.

It does happen that the notice has been served; however, the return card was not removed from the envelope or sometimes gets lost. As a last measure, the employer may write a request letter to ask for a Certification from the Philippine Post Office to confirm that the notice was served to the employee.

2) Ample Opportunity to be Heard

The Ample Opportunity to be Heard is the essence of due process.

The Supreme Court provided for the following guiding principle in line with hearing requirement for due process:

“(a) ‘ample opportunity to be heard’ means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way.

(b) 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.

(c) the ‘ample opportunity to be heard’ standard in the Labor Code prevails over the “hearing or conference” requirement in the implementing rules and regulations. (Perez v. Philippine Telegraph and Telephone Company, supra.; Emphasis supplied.)

The 1st principle allows various means by which the employee may be given ample opportunity to be heard. As stated therein, it can be in “a hearing, conference, or some other fair, just and reasonable way.” The last part includes a written explanation from the employee.

•••

CASE STUDY

Perez v. Philippine Telegraph and Telephone Company

G.R. No. 152048, 07 April 2009, En Banc

[The employees – a Shipping Clerk and a Supervisor – were dismissed allegedly for falsifying company documents without them being given the opportunity to explain.]

Article 277(b) of the Labor Code provides that, in cases of termination for a just cause, an employee must be given “ample opportunity to be heard and to defend himself.” Thus, the opportunity to be heard afforded by law to the employee is qualified by the word “ample” which ordinarily means “considerably more than adequate or sufficient.” In this regard, the phrase “ample opportunity to be heard” can be reasonably interpreted as extensive enough to cover actual hearing or conference. To this extent, Section 2(d), Rule I of the Implementing Rules of Book VI of the Labor Code is in conformity with Article 277(b).

Nonetheless, Section 2(d), Rule I of the Implementing Rules of Book VI of the Labor Code should not be taken to mean that holding an actual hearing or conference is a condition sine qua non for compliance with the due process requirement in termination of employment. The test for the fair procedure guaranteed under Article 277(b) cannot be whether there has been a formal pre-termination confrontation between the employer and the employee. The “ample opportunity to be heard” standard is neither synonymous nor similar to a formal hearing. To confine the employee’s right to be heard to a solitary form narrows down that right. It deprives him of other equally effective forms of adducing evidence in his defense. Certainly, such an exclusivist and absolutist interpretation is overly restrictive. The “very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.”

The standard for the hearing requirement, ample opportunity, is couched in general language revealing the legislative intent to give some degree of flexibility or adaptability to meet the peculiarities of a given situation. To confine it to a single rigid proceeding such as a formal hearing will defeat its spirit.

Significantly, Section 2(d), Rule I of the Implementing Rules of Book VI of the Labor Code itself provides that the so-called standards of due process outlined therein shall be observed “substantially,” not strictly. This is a recognition that while a formal hearing or conference is ideal, it is not an absolute, mandatory or exclusive avenue of due process.

x x x

A hearing means that a party should be given a chance to adduce his evidence to support his side of the case and that the evidence should be taken into account in the adjudication of the controversy. “To be heard” does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. Therefore, while the phrase “ample opportunity to be heard” may in fact include an actual hearing, it is not limited to a formal hearing only. In other words, the existence of an actual, formal “trial-type” hearing, although preferred, is not absolutely necessary to satisfy the employee’s right to be heard.

x x x

… the employer may provide an employee with ample opportunity to be heard and defend himself with the assistance of a representative or counsel in ways other than a formal hearing. The employee can be fully afforded a chance to respond to the charges against him, adduce his evidence or rebut the evidence against him through a wide array of methods, verbal or written.

After receiving the first notice apprising him of the charges against him, the employee may submit a written explanation (which may be in the form of a letter, memorandum, affidavit or position paper) and offer evidence in support thereof, like relevant company records (such as his 201 file and daily time records) and the sworn statements of his witnesses. For this purpose, he may prepare his explanation personally or with the assistance of a representative or counsel. He may also ask the employer to provide him copy of records material to his defense. His written explanation may also include a request that a formal hearing or conference be held. In such a case, the conduct of a formal hearing or conference becomes mandatory, just as it is where there exist substantial evidentiary disputes or where company rules or practice requires an actual hearing as part of employment pre-termination procedure. To this extent, we refine the decisions we have rendered so far on this point of law. (Emphasis supplied.)

x x x

Where the dismissal was without just or authorized cause and there was no due process, Article 279 of the Labor Code, as amended, mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement. In this case, however, reinstatement is no longer possible because of the length of time that has passed from the date of the incident to final resolution. Fourteen years have transpired from the time [the employees] were wrongfully dismissed. To order reinstatement at this juncture will no longer serve any prudent or practical purpose.

•••

The 2nd Principle is reiterated in Section 5.1., Rule I-A, DOLE D.O. 147-15: “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.”

Thus, the employer should take note of these circumstances when a formal administrative hearing has to be conducted:

1) When requested by the employee in writing; 

2) Substantial evidentiary disputes exist;

3) A company rule or practice requires it; or

4) When similar circumstances justify it.

The 3rd Principle was a result of the resolution by the Supreme Court of the Philippine Telegraph and Telephone Company case wherein the Implementing Rule and Regulations contradicted the Labor Code. It was held that the Labor Code – being a law – prevails over the DOLE Rules. As a result, hearing may be complied with either via a formal administrative hearing or a written reply. Thus:

•••

CASE STUDY

Perez v. Philippine Telegraph and Telephone Company (supra.)

There is no need for a hearing or conference. We note a marked difference in the standards of due process to be followed as prescribed in the Labor Code and its implementing rules. The Labor Code, on one hand, provides that an employer must provide the employee ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires:

ART. 277. Miscellaneous provisions. — x x x

(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, 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. (Emphasis supplied)

The omnibus rules implementing the Labor Code, on the other hand, require a hearing and conference during which the employee concerned is given the opportunity to respond to the charge, present his evidence or rebut the evidence presented against him:

Section 2. Security of Tenure. — x x x

(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:

For termination of employment based on just causes as defined in Article 282 of the Labor Code:

(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.

(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. (Emphasis supplied)

Which one should be followed? Is a hearing (or conference) mandatory in cases involving the dismissal of an employee? Can the apparent conflict between the law and its IRR be reconciled?

At the outset, we reaffirm the time-honored doctrine that, in case of conflict, the law prevails over the administrative regulations implementing it. The authority to promulgate implementing rules proceeds from the law itself. To be valid, a rule or regulation must conform to and be consistent with the provisions of the enabling statute. As such, it cannot amend the law either by abridging or expanding its scope.

Article 277(b) of the Labor Code provides that, in cases of termination for a just cause, an employee must be given “ample opportunity to be heard and to defend himself.” Thus, the opportunity to be heard afforded by law to the employee is qualified by the word “ample” which ordinarily means “considerably more than adequate or sufficient.” In this regard, the phrase “ample opportunity to be heard” can be reasonably interpreted as extensive enough to cover actual hearing or conference. To this extent, Section 2(d), Rule I of the Implementing Rules of Book VI of the Labor Code is in conformity with Article 277(b).

The “ample opportunity to be heard” standard is neither synonymous nor similar to a formal hearing. To confine the employee’s right to be heard to a solitary form narrows down that right. It deprives him of other equally effective forms of adducing evidence in his defense. Certainly, such an exclusivist and absolutist interpretation is overly restrictive. The “very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.”

x x x

An employee’s right to be heard in termination cases under Article 277(b) as A hearing means that a party should be given a chance to adduce his evidence to support his side of the case and that the evidence should be taken into account in the adjudication of the controversy “To be heard” does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. Therefore, while the phrase “ample opportunity to be heard” may in fact include an actual hearing, it is not limited to a formal hearing only. In other words, the existence of an actual, formal “trial-type” hearing, although preferred, is not absolutely necessary to satisfy the employee’s right to be heard.

•••

As such, the ample opportunity to be heard may be given to the employee via a formal administrative hearing or a written explanation. The key to remember is that that the employer is only required to give the employee an opportunity to explain. Once that chance is given, the employer has complied with the requirement – even if the employee fails/refuses to attend the schedule for the formal administrative hearing or submit a written explanation.

By failing/refusing to attend the formal administrative hearing or to submit a written explanation, the employee waives his right to be heard. Thereafter, the employer may proceed with the next step to complete the procedural due process.

 

3) 2nd Written Notice

The 2nd Written Notice is also known as the Notice of Results (or NOR).

As indicated the earlier section, DOLE D.O. 147-15 requires that the following reflected in the NOR to be served on the employee:

1) All circumstances involving the charge against the employee have been considered; and,

2) The grounds have been established to justify the severance of their employment

With the above requirements, the employer should ensure that they are reflected in the NOR. That is to say, there should be a sentence reflecting the above lines in the notice itself to communicate to the employee that all circumstances have been considered and ground have been established to justify termination of the employee.

a) Proof of Service

Similar to the NTE, the NOR 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.