05 Sep Every Termination Case should have these 3 Essentials
An HR officer told me that one of their terminated employees came up to the HR office. He was asking about that status of his case. Once he was told that he was terminated, he asked if he can get a copy of his Termination Letter. I told the person asking, “Why? Did he lose his copy? The employee should have been served that in the first place.” Sheepishly, the HR admitted that the Termination Letter had not been sent. They got caught up in the intensity of the investigation and cleaning up the mess the terminated employee made with their suppliers. They got so distracted they failed to serve the notice of termination.
No wonder the hapless employee had to go to the HR Department. He had to get an update of what happened and request for the paperwork reflecting that. He wasn’t given the complete due process procedures and was left in limbo.
This prompted a very quick lecture with the HR officer on the essentials of terminating employees so it doesn’t happen again. I’d like to share with you what we discussed then so it serves as a reminder for you as well.
The 3 bare essentials of Termination
I teach my students and clients an entire system on employee discipline (the book is coming out on that soon!), but if all else fails, there are only 3 things that you need to have in place to win a labor case in terms of procedural due process. This summary was given by the Supreme Court in the case of King of Kings, Inc. vs. Mamac, G.R. No. 166208:
Notice to Explain
(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. Reasonable opportunity under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as
This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as the basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.
(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
Notice of Termination (or if not termination, indicate the other penalty imposed)
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered, and (2) grounds have been established to justify the severance of their employment.
These things are mandatory under the law. No going around them. Keep a reminder of them on a note somewhere in your office so you have something to refer to whenever you deal with this issue.
But what about all the other things you teach?
In my course, I teach an entire discipline system which includes Incident Reports, Preventive suspension, Administrative Investigations. However, these should be considered as enhancements or upgrades to the essential components. The bare bone essentials of discipline under the law are still the 3 items you see up top. You can remove all other upgrades and enhancements and still win a labor case. But if you take away even one of the 3 mentioned above, that would automatically lead to a violation of the employee’s right to procedural due process. This will lead to penalties against you.
End of the day, don’t’ get caught up too much in the process that you lose track of the essentials. Everything else should be considered secondary compared to them, ok? Otherwise, you risk losing the procedural due process aspect of your case.