An employment may be terminated only if there is a

lawful basis for it. The reason is that employment is

considered a property right and therefore, like any
other kind of property, enjoys the protection of the law.
This means that it cannot be taken away without due
process of law.
There are two essential requisites for a lawful
termination, the (1) substantive requirements, and (2)
procedural requirements.
Substantive requirements refer to the reason for
taking the action. Unlike in the past where readiness
to pay separation pay is all that is needed to do away
with the services of an employee (under the old
Termination Pay Law), today such action must be
based on a ground which the law recognizes as
sufficient and valid in order to justify the termination.
This basis may either be what is known as just
causes for termination or the so-called authorized
causes for termination.
On the other hand, even if a termination is based on
what is recognized by law as a valid or substantive
ground, it may still be considered unlawful if the
process of terminating the employee does not comply
with the due process requirements of the law. This is
the procedural aspect of termination. The law
prescribes the manner of putting termination into
effect. Even if armed with a sufficient basis to
terminate, an employer may be deemed to have done

it unlawfully if he carries out the termination without

observing the required process.
Questions:
1. Are company rules imposing termination as
penalty considered a substantive ground?
Provided that they are analogous to the just causes
enumerated by law, company rules exacting dismissal
as penalty is a substantive ground. Analogous means
something related or similar to the grounds
enumerated by law (as just causes for termination).
For instance, under the law, gross and habitual
negligence is a just cause for dismissal. A company
rule that punishes repeated absences, or chronic
under performance at work is analogous to the law on
negligence. In addition, there is a need for company
rules to be reasonable under the circumstances. The
litmus test for the validity of company rules is fairness.
2. If there is a just cause for termination but the
employer does not observe due process, is this
fatal to the action to terminate?
The current jurisprudence is to the effect that if the
procedural requirements are not observed, the
termination may be sustained but the employer will be
liable for damages.
SUBSTANTIVE REQUIREMENTS

Under the law, an employment can be terminated only

on the following grounds:
a. if there is a just cause, and b. For authorized
causes.
Just causes for termination are those enumerated
under Article 282 of the Labor Code. Specifically, an
employee may be dismissed for (a) serious
misconduct or willful refusal by an employee to
comply with a lawful order of the employer or
representative (b) gross and habitual neglect of duty
(c) breach of trust (d) commission of a crime against
the company, and (d) other causes analogous to the
above.
On the other hand, authorized causes refer to those
instances where an employer is permitted to
terminate if it is essential to the efficient running of the
business or to the need to protect it from possible
losses. Thus, the following grounds are valid bases
for terminating employment: (a) redundancy (b)
introduction of labor saving device (c) retrenchment to
prevent losses, and (d) closure or cessation of
business not on account of losses. In addition to
these, an employer is also permitted to terminate in
cases where (e) an employee is suffering from an
illness that poses risk to himself and to his coemployees, provided such illness is not curable within
a period of six months, and (b) if the employee is laid

off for valid reasons and such inactivity goes beyond

six months.
Questions:
a. What is the essential difference between a just
cause and an authorized cause?
From the above explanation, it is plain to see that the
premise of just cause termination is the personal
accountability of the employee. This means that the
principal blame lies on the employee for breaking the
law enforced by the company. On the other hand, in
authorized causes for termination, the employee is
not at fault and does not infringe any rule. It is the
company that initiates the action which the law
authorizes on the reasoning that the employer must
be allowed the right to determine how best to run his
business in order to achieve its objectives.
b. Who determines what authorized cause or
causes shall be invoked in terminating
employees?
Consistent with what is discussed above, it is the
company that determines what ground to use in
terminating for authorized cause. This is known as the
business judgment rule. The employer is assumed to
know what is essential to the success or continued
existence of the company and the court normally
would not inquire into the factors that go into

determining business decisions. Unless of course the

decision is attended by bad faith, or is intended to
carry out a fraud, or is done to frustrate justice. But
while this is true, the law in cases of authorized
terminations requires the company to comply with
certain requirements, and the employees affected by
such decisions can seek recourse from the NLRC if
the decision of the company is questionable.
PROCEDURAL REQUIREMENTS
Under the law, due process is an important part of
lawful termination.
The procedures to comply with this requisite differ in
just and authorized terminations. In termination for a
just cause, the due process requirements consist of
the following:
a. Furnishing the employee with a written notice
advising him of the offense he committed and giving
him the opportunity to answer the charges against
him. This notice requires that:
i. The details of the charge are sufficiently clear to
provide the employee a complete idea of the nature of
the accusation against him.
ii. The notice must indicate in unmistakable terms the
intention of the company to terminate the employee if
the charge is subsequently proven.

b. Providing the employee an opportunity to be heard,

to rebut the accusation, to confront the witnesses
against him and to present his own, and to have the
assistance of a lawyer if he so chooses.
c. Furnishing the employee a second written notice if,
and only if, the inquiry into his case proves that he
really committed the offense.
On the other hand, in termination for authorized
causes, the due process requirements consist of the
following:
a. Serving a notice to the employee to be terminated
of the intended action at least 30 days prior to the
date of dismissal.
b. Serving a similar notice to the Department of Labor
and Employment within the same period of time.
c. Payments of a separation pay in the amount
required by law.
Questions:
a. Is it an indispensable part of due process
requirements that an actual investigation be
conducted by the company?
The jurisprudence is not precise as there are
decisions to the effect that if the employee is asked to

give a written explanation, the same is already

equivalent to a hearing as the employee is given the
opportunity to explain and rebut the charges. On the
other hand, there are decisions that specify the need
to extend to the employee the need for an actual
inquiry and hearing. Since we cannot second guess
what the court may decide in a given case, it is better
to err on the side of discretion and allow the employee
a modicum amount of opportunity to be able to
explain in an official inquiry.
b. Is it the function of a hearing to actually prove
beyond doubt the guilt or accountability of the
employee?
The hearing is principally designed to afford the
employee ample opportunity to be heard. The
company of course is expected to weigh the
evidences, statements, and allegations of all the
parties, and the idea is to determine what the truth is.
But like most hearings, there will be two sides to an
issue, and the obligation of the company is ferret out
which side is correct.
c. Can the notice required in authorized
terminations be dispensed with by paying the
employee an advanced salary of one month?
This has been resolved already by the court in the
case of Serrano v. NLRC. Advance salary payment is
not equivalent to notice. Companies that do this risk

being charged with failure to comply with the due

process requirement under the law. The notice of 30
days is meant to give the employee enough time to
make the corresponding adjustments in his drastically
altered personal situation. This is not remedied by
giving him an advance pay. While giving salary in lieu
of notice may seem practical to both parties, the
thinking is that the employee must be given the time
to make the appropriate steps to adjust to his
situation.
JUST CAUSES OF TERMINATION
Serious Misconduct or willful disobedience by the
employee of a lawful order by his superior This
particular cause of action actually contemplates two
distinct situations: one is a case where the employee
commits an act which is improper and which
transgresses an established rule of conduct, and the
other is what is commonly known as insubordination.
But what is common in these two kinds of offensive
behavior is the fact that both are characterized by a
wrongful intent on the part of the offender. As opposed
to just being a mere mistake or error in judgment, the
acts covered by this provision of the law contemplate
a deliberate and calculated act. The defining term is
that the offense is committed willfully.
The charge of serious misconduct may attach to any
kind of offense provided:

a. the act complained of is grave as opposed to being

merely an ordinary misbehavior, in which case the
circumstances under which the act is done and the
danger or potential injury it can cause, must be
properly considered;
b. the employee intended the consequence of his
acts, meaning he did it deliberately; and,
c. The act must be in connection with the employees
work.
On the other hand, insubordination requires the
agreement of key essential requisites:
a. the order is lawful
b. it is given by ones superior
c. it is connected with the work being performed d.
There is deliberate refusal to comply.
If the order is not lawful, or even if lawful, is not within
the competence of the employee, or assuming it is
within the competence of the employee, but it is not
given by someone to whom the employee owes a
duty to comply, then the charge of insubordination will
not apply.
Questions:

a. What would determine whether an act

constitutes a serious misconduct or not?
There is no precise guideline or measure that will give
an exact description of what is a serious misconduct.
There are certain requisites however. First, the act
must be in violation of some existing rules of conduct
which, in the context under which the company
operates, must be considered a serious
transgression. The nature of the company rule
violated often defines the degree of seriousness of
the offense. The extent of injury or potential damage
to the company as well as the impact of the act
committed to the operations of the business also
figure out in determining whether it a serious
misconduct or not. For sure, any act that is immoral
as measured against social conventions, or which is
depraved, or which offends rules that customarily are
highly regarded, may be considered as serious
misconduct.
b. If an act is not covered by a specific rule in the
companys code of conduct, can the employer
just invoke the labor code to charge the employee
with serious misconduct?
The principal law on termination is what the code
provides. Even if the act is not covered by the rules, if
the act falls under any of the just causes listed under
Article 282 of the Code, then the employer can invoke

this and proceed to terminate.

c. If the order is given by someone besides the
immediate head of the employee, or the task
assigned is not part of the work of the employee,
is a refusal to comply chargeable by
insubordination?
These are the contentious issues in insubordination,
when the requisite elements of the offense are either
absent or operate under different circumstances. First
of all, the law did not say that the order must come
from the immediate superior but from the employer or
his representative. If the order is given by someone
other than the immediate superior, he should at least
qualify himself as someone representing the
employer. What is material in insubordination
is whether or not the order is related or in connection
with the employees work. Thus, if the order is totally
alien to the job of the employee, a refusal does not
come within the purview of insubordination. Most jobs
have requirements for the incumbent to assume work
that is given or assigned from time to time, or
periodically, meaning a work that is not ordinarily a
part of his usual routine. Thus, any refusal may be
considered as insubordination if its willful and
deliberate.
d. If the employee was not able to comply
because of an emergency, is the refusal to comply
still possible as insubordination?

If the emergency is established, it may be hard to

consider it under the rule because then, it ceases to
be a malicious refusal to abide by the given order. If
the refusal is dictated by extraneous reasons, and
they are serious enough to warrant the immediate
attention of the employee, then the insubordination
case becomes less compelling.
Gross and habitual neglect of duties Negligence
means absence of care and diligence on the part of
the employee in reference to the duties that he is
required to give to the employer. Unlike serious
misconduct, this rule does not require as an element
deliberate and malicious intent. Provided there is
negligence, then the employee may be charged for
any offense in which the employer suffers and incur
damages by reason of the inability of the employee to
observe due diligence in the performance of his
duties. As a rule, for this reason to apply, the offense
must be done habitually and at the same time, result
to substantial damage to the company in a way that
will qualify the offense as gross.
Questions:
a. Is it required for this rule to be validly applied
that the employee commits a grossly negligent
act more than once before he can be terminated?
While the law would seem to indicate this, meaning

that the negligence must not only be gross but also

habitually committed, the court has often ignored this
absurd interpretation and has ruled that a gross
violation need not be repeated to be able to terminate
the offender. What is necessary is to show that the
injury to the company is substantial (gross) such that
a penalty of dismissal would be seen as a
proportionate punishment against the employee
responsible for the damage.
b. Is poor performance punishable as a form of
habitual negligence?
When poor performance results from negligent acts,
then there is a ground for using this rule against the
employee. But poor performance may be caused by
factors other than an employees lack of diligence in
doing his work. The employee may not be negligent,
in fact may even be industrious and hard-working,
and still come short of expectations. If that is the
case, this rule is not applicable but the employee just
the same may be taken out but using a different set of
rules.
c. Is chronic absenteeism punishable under this
rule?
Repeated absence without official leave is a form of
dereliction of duty and falls squarely under this rule.
So it is with abandonment of employment, or
excessive tardiness.

Serious breach by the employee of the trust

reposed in him by the employer This is a rule that
usually finds application only in cases where the
employee concerned is occupying a position of
responsibility, i.e. vested with trust and confidence. Of
course, in a much limited way, it also applies in cases
where the employee (not the position) is given access
to confidential information or custody of important
matters even if he is not assigned to a position
involving high responsibilities. What is punished
therefore in this rule is the breach, or violation, of the
explicit need to maintain confidentiality of information
or integrity of the thing held.
Of course, loss of confidence is valid ground provided
there is a basis. An employer cannot simply assert
lost of trust to justify the dismissal of an employee
without providing the reason for such action. While it
is true that an employer must have full confidence in
those who are performing important or critical
functions in the company, the law will not tolerate any
allegation (as a basis for termination) to the effect that
such confidence has been lost unless there is a good
reason to support it. Time and again, the Supreme
Court has maintained that even managers enjoy
security of tenure.
Questions:
a. Is failure of a manager/supervisor to deliver on

his tasks sufficient basis for loss of confidence?

Failure to perform as expected, or as represented by
the employee to his employer, is a valid ground for the
company to lose confidence in a way that will justify
the termination of the employee provided the inability
to deliver involves a significant aspect of the work.
b. Can we charge an ordinary employee with loss
of trust and confidence?
An ordinary employee can only be liable under this
rule if he has been tasked to possess or have custody
of things that are of significant value to the company.
This can be property, money, or intangible things like
information, data, or knowledge of plans. The liability
attaches if the employee breaches the confidentiality
of the information by sharing this to others, or if he
appropriates the thing in his custody, as for instance
in the case of a cashier who pockets the earnings of
the business.
Commission of a crime against the employer, his
immediate relatives or representatives A crime is an
act or omission punishable under the Revised Penal
Code. You have to distinguish this with other offenses
an employee may commit which is covered by
different sets of laws. The law is specific as to what
kind of action this rule applies. If an employee is civilly
liable, that is not a crime, and the commission of an
act that gives rise to a civil action may not be used to

terminate an employee. So is a violation of an

ordinance.
The crime committed must have been directed
against the employer, relative or representative. The
latter includes people who work in the interest of the
employer like managers or supervisors.
It is not required for the application of this rule that a
conviction is made to prove that the crime was in fact
committed. It is enough that a basis exists to form a
conclusion in the mind of the employer that the
employee committed a crime.
Question:
a. If an employee accused of having committed a
crime against the employer is acquitted in court,
does that mean that the employee cannot be
terminated, or if already terminated, that he
cannot be reinstated anymore?
Acquittal does not necessarily mean that the
employee cannot be terminated because in criminal
cases, the requirement is proof beyond reasonable
doubt. Termination from employment is an
administrative matter, and in the latter case, it is not
required to have the degree of proof necessary in a
criminal proceeding. Preponderance of evidence is
sufficient. Therefore, if the employer has enough
evidence on hand to sup port a belief as to the

culpability of the employee, it is immaterial whether or

not the employee was acquitted in the criminal case.
He can proceed to terminate. It is a different matter,
however, if the acquittal in the criminal proceeding is
because of a finding that he did not commit the crime.
That finding should bind the company.
AUTHORIZED CAUSES OF TERMINATION
Authorized causes permit the employer to terminate
employment even if the employee is not at fault. The
premise is the right of the employer to regulate the
business and to preserve it consistent with its
purpose. It proceeds from the thinking that there are
business decisions which are essential to keep the
business going, and this takes precedence over
certain individual rights including that of continued
employment.
There are of course limitations placed by law to
prevent abuse or misuse of this right to terminate
employment. One, the reason must be legitimate,
meaning not contrived or merely simulated. Second,
the employer must be ready to prove this by
competent evidence. If the reason is loss in
operations, then financial records and other similar
data must be available to support the action. Third,
notice should be made to the parties at least a month
before the intended date of termination to afford them
not only time to adjust but also to have the opportunity
to question the action before the proper tribunal. And

fourth, payment of separation pay must be made in

every case.
The authorized causes under the law include the
following:
Introduction of labor saving device improvement
of the business process is a right of the employer and
consistent with the doctrine that the manner of
regulating the operations of the business is an integral
part of the so called management prerogatives. When
a device is adopted and such contraption results to an
excess in manpower requirements, the law will not
prevent the employer from stripping the excess. The
alternative, meaning to force the employer to retain
employees made irrelevant or unnecessary by the
device, is unreasonable and is going to be oppressive
to the employer.
Redundancy this is a situation where there is an
excess of people over what is required by the
business, and following what is discussed above, it is
unfair for the employer to be obliged to retain what the
business does not need. Redundancy occurs as a
result of certain situations. Reorganization, reduction
in the volume of business, phasing out of certain part
of the operations, change in marketing plans,
obsolescence of products, or any other kind of
situation where the net result is having more people
than what is needed to carry out the functions of the
business, are examples of redundancy. This rule

applies when there is an excess of people without the

company being in dire financial condition. What is
contemplated here is not a case where the company
has to shed some of its personnel because it is losing
or is about to suffer losses in the business. The
company may not be losing money, in fact, may even
be making its desired profits but is allowed
nevertheless to terminate employees if the latter
constitute an excess in the companys people
requirements.
Retrenchment to prevent losses here, the
situation appears to be the reverse of that obtaining in
a redundancy case. The company may have just the
right number of people to operate its business under
normal conditions but because of losses, or
anticipated losses, it is allowed by law to terminate
employees. Retrenchment differs from redundancy in
terms of the amount of separation pay required to be
extended to affected individuals. Whereas
redundancy termination requires payment of at least
one month salary for every year of service,
retrenchment pay is less, that is, only one half month
salary for every year of service.
To be sure, it is not easy to justify retrenchment. An
employer has to meet certain requisites in order that
his action (retrenchment of employees) may be
justified: one, the losses must be substantial, and not
merely the kind of losses that occur in the usual
course of operations which sometimes happen

depending on the seasonality of the business; two,

the losses anticipated must be imminent, meaning
unless remedied are sure to come; three, the
company must have done all that is necessary short
of terminating people to prevent the losses but to no
avail; and four, the company has the proof to show
the reality of the losses.
Closure or cessation of business the closure
spoken of in this cause is not one occasioned by
losses because if it were the case, it is not covered by
this provision. For whatever reason, except perhaps
when it is attended by fraud or when designed to
frustrate justice, an employer may opt to stop his
operations and close the business for good. This is
because such action is an exercise of a right that is
rooted in ownership. An owner of a thing has the right
to do whatever he pleases with the thing he owns
provided he does not violate the rights of others and
provided further that it is not in violation of the law.
Illness an employee who is suffering from a disease
which poses danger or risk to his own safety as well
as to the welfare of other employees may be
separated from the service provided only that a
government medical officer certifies to the fact that the
illness cannot be cured in a period of six months.
Lay-off for a period exceeding six months when
an employee is placed on an extended leave or
inactive status or otherwise stopped from working for

reasons not entirely due to his own fault, then it is

considered as constructive dismissal and is treated
similar to the above causes in the sense that the
employee has to be paid a separation pay equivalent
to one half month salary for every year of service.
Questions:
a. From an employers perspective, is it legally
defensible to use retrenchment as a reason rather
than redundancy when there are reasons that
could support either cause?
From a strictly legal perspective, there are enough
grounds to be able to differentiate redundancy from
retrenchment although it is true that sometimes, there
are reasons equally applicable to the two. If actual
losses were a basis, there would be no problem
distinguishing these two grounds for in this case,
retrenchment would apply to a company losing and
redundancy to a company which is not otherwise
suffering a loss. Unfortunately and as already
mentioned above, it is not necessary for a company to
actually incur losses before it can invoke the law to
effectuate retrenchment. The thing is, it is the
company that determines the basis for termination
and the recourse of the employee affected is to
question such basis before the proper agency of the
government. That is the purpose of notice. In short,
there is no obstacle to filing for retrenchment even if
redundancy is equally applicable, but the company

must be ready to support its action with substantial

proof.
b. If the company closes part of its facilities, is the
rule on closure applicable?
The law contemplates not just the closure of the entire
company but also of particular parts or sections,
assuming that the same can be done without
impairing the entire operations.
c. If the company closes but due to losses, is it
required to pay separation pay?
This has been decided already by the courts. If the
reason for the closure is because of losses, the
company may not anymore be obliged to pay
separation pay. Of course, if the employees are so
minded, they can file claims against the remaining
assets of the corporation over which they enjoy
certain preferences over other claims.
d. Who and what factors determine who will be
terminated in case of retrenchment or
redundancy?
In redundancy, if the cause of excess is due to closure
or stoppage of operations, then the employees
directly affected by such closure or stoppage should
be the ones to go. For instance, if a particular line of
product is shut down for whatever reason, then the

people working in that line are and should be the

object of the redundancy termination. The same thing
goes for a redundancy owing to reorganization. The
people rendered redundant by the reorganization
should typically be the people who should be
terminated. In all other cases, especially
retrenchment, the termination must be based on welldefined criteria. There normally include performance
and seniority, as well as other relevant factors. The
company should decide based on such criteria unless
it is held by certain requirements under a collective
bargaining agreement to decide in a particular way.
Recent decisions of the court, however, have been
instructive. According to these rulings, seniority must
always be included in the criteria otherwise, the
selection is questionable.
e. Can an employer immediately replace an
employee who is terminated for any of the above
causes?
Unless there are extenuating circumstances, any
improvident hiring done immediately after redundancy
or retrenchment will certainly give rise to a suspicion
that the terminations were done in bad faith. It is
immaterial that the employees have signed quit
claims or waivers or have received payments of
separation pay because none of these will prevent
them from filing a case against the company. Of
course, if terminated employees are given priority in
the hiring, it may be a different case. But rehiring,

especially in case of retrenchment, so soon after the

employees are terminated is evidence of simulating a
cause that is not probably true.
f. May a company retrench and then hire the
employees terminated as casuals?
Again, it is going to be a question of good faith, the
willingness of the employees to be bound by such
action notwithstanding. If it is evident that the
move was precipitated by a desire to shortchange the
employees, the fact that the
employees accepted payments is immaterial and a
person adversely affected may have reason to file a
case against the employer.
g. Can retrenchment pay be given in installments?
There is no jurisprudence to this effect and the law is
silent as to the matter which has in fact led many to
do exactly that, meaning pay separation pay in
installments. But the intention of the law is to pay the
employees a separation pay and it should be
construed as a duty that must be done once the
operative act (termination) takes effect. It does seem
to be unfair to deprive the employees their
employment and then withhold their separation pay.
The law did not command merely acquiescence of
employers to paying, because insofar as the law is
concerned, that is the corresponding obligation of a
company and one that is not subject to modification.

Paying in installments is in fact modifying the terms of

the law, and thus, must be held to be unlawful.
DUE PROCESS
As already mentioned, due process in termination
cases consist of two things: (1) notice, and (2)
hearing. The notice is equivalent to a charge sheet in
a criminal case. It must provide sufficient details
concerning the offense charged to allow the employee
concerned the opportunity to defend himself. A notice
that merely indicates what particular rule of the
company was violated, or even what the particular
rule consists of, is not enough. It should indicate the
details of the offense, and more importantly, it must
also contain an advice to the employee that it is the
companys intention to terminate his services if the
charge/s is proved. Without this admonition, the
notice is as good as not having been sent.
Proof of service of notice is important because without
it, receipt can be denied. Substituted service or
service by giving a copy directly to the employee is
good if actually received. In most cases, employees
refuse to receive, or if they receive, refuse to
acknowledge such fact. Of course, any doubt that the
employee has been served notice can give rise to a
question on due process.
Hearing is an opportunity for the employee to
controvert any of the charges against him, to confront

the witnesses and to summon his own, and basically,

to prove his innocence to the company.
When this process is undertaken, the due process
requirement is served and the company is free to take
action based on its evaluation of the facts presented.
If the company is satisfied that the employee is guilty,
then it can proceed to take action. It must provide the
employee with a written notice containing its decision
and the basis of such action. A termination due to a
just cause can take effect immediately upon the
receipt of the notice by the employee.
Questions:
a. Can the employee be placed under preventive
suspension while the hearing is going on?
Preventive suspension can be instituted against the
employee only if his presence constitutes a threat
against the life and property of the employer or that of
any employee.
b. How long can a preventive suspension be put
into effect?
For 30 days without pay, and even beyond this, if the
employer is willing to pay his salary after the 30th day.
c. Does a show-cause letter sufficient to dispense

with a hearing?
It normally should be sufficient unless the explanation
given by the employee calls for the need to
investigate further in which case a formal hearing may
be conducted. The litmus test actually should be this:
was the employee heard enough? Did he have the
opportunity to fully explain his side? Is there no need
for further elaboration so that the company will have
the complete facts before it in order to make an
informed judgment? The overriding consideration is
fairness. The employee should be extended all
chances to prove the accusation false and it is only
when he comes up short that the employer should
take the necessary action.
d. Can the company object to the employee
bringing a lawyer as counsel and in the
affirmative, what should be the role of the counsel
in the hearing?
Access to legal assistance is a privilege conferred by
law and cannot be denied if demanded by the
employee. The role of the counsel is to assist the
employee in his defense, and this includes advising
him on what to say or not say. A hearing in the
company is an administrative process and the lawyer
cannot demand the application of the rules of court in
the proceedings.
e. If conducted, what is the reasonable duration

for holding the hearing?

The hearing should last only when the company is
satisfied that the employee has been given his due or
day in court so to speak. Undue delays,
procrastination, or maneuvers to delay the proceeding
are matters that must be controlled by the company.
f. Must the union officers be allowed to intervene
in the hearing?
Only to the extent allowed by the collective bargaining
agreement. Union officers normally would be
interested participants if a member is undergoing an
inquiry, but they will be there merely to assist. Thus,
the company may properly restrict their participation if
such is not defined in the CBA.
g. What must be considered by the company in
coming up with a decision?
The company must consider all the evidences
presented by both parties, and make a decision on
the basis of what is contained in the records. There is
a tendency on the part of many employers to consider
the hearing aspect of due process as an annoying
pro-forma requirement of the law. That is not the
intention for this. It is true that the company is the one
charging (by way of its representatives) and it is
somewhat incongruous to think that the company, in
deciding the case, would decide in a way that will

contradict its very own accusation. Be that as it may, it

behooves the employer to ascertain the truth in every
case, and to grant allowances where the same may
be due if the purpose is to be able to grant justice. If
the employee is not accountable, or if his
accountability is mitigated in any way, the employer
should consider this meting out its judgment.
h. What are the legal procedures required in
implementing termination?
Beside those already discussed, when a letter
advising the employee of his termination is issued, a
report of such termination must be given to the
Department of Labor. If it is a case of just cause
termination, it should be included in the monthly
report to the DOLE. If it is a termination for authorized
cause, the DOLE is required to have a notice at least
30 days before the intended date of termination
otherwise it will be as if no notice was given. Notice to
the employee must be served by registered mail to
have evidence of service, regardless of whether or
not actual personal service was done directly to the
employee.