Substantive Due Process
Dismissal for any of the just or authorized causes under Arts. 282 – 284
Right to counsel
A very basic requirement of substantive due process; it has to be observed. Indeed, the rights to counsel and to due process of law are two of the fundamental rights guaranteed by the 1987 Constitution to any person under investigation, be the proceeding administrative, civil, or criminal. (Salaw v. NLRC, 1991)
Procedural Due Process
Employee must be given notice with adequate opportunity to be heard before he/she is notified of his/her actual dismissal for Cause. (Fujitsu v. CA, 2005)
ER may NOT substitute the required prior notice & opportunity to be heard with the mere payment of 30 days' salary. (PNB v. Cabanag, 2005)
TWIN-NOTICE REQUIREMENT
First notice – notice specifying the grounds for which dismissal is sought
Procedure to be observed in termination cases
Basis for
Termination Requirements
Just cause –
Art. 282 (1) Notice grounds for which dismissal specifying the is sought
(2) Hearing or opportunity to be heard
(3) Notice of the decision to dismiss (Art. 277(b)) Authorized Cause – Arts. 283 & 284 Notice to: (1) Employee, & (2) DOLE
at least 1 month prior to the effectivity of the separation Consequences for non-compliance
Situation Effect Liability of ER
Just or Authorized Cause + Due Process
Dismissal
valid No liability * separation pay if for authorized cause No Just or Authorized Cause + Due Process Dismissal
invalid Reinstatement Full Backwages + * if reinstatement NOT possible = separation pay No Just or Authorized Cause + No Due Process Dismissal
invalid Reinstatement Full Backwages + * if reinstatement NOT possible = separation pay Just or Authorized Cause + No Due Process Dismissal
valid Liable for damages due to non- compliance with procedural req'ts *separation pay if for authorized cause
HEARING; MEANING OF OPPORTUNITY TO BE HEARD
A formal or trial type hearing is not at all times and in all instances essential to due process; it is enough to that the parties are afforded fair and reasonable opportunity to explain their side of the controversy. (Mendoza vs. NLRC, 1991)
Degree of Proof
Substantial evidence; proof beyond reasonable doubt not required. (Manila Electric Co., Inc. v. NLRC, 1991)
Agabon doctrine
Prior to 1989 Illegal dismissal
Wenphil Corp. v. NLRC, 1989 - Belated Due Process Rule
Dismissal isvalid (NO reinstatement and backwages)
BUT Employer to indemnify Employee for damages Serrano v.
NLRC, 2000 Dismissal is valid. EE is entitled to the payment of full backwages - Computed from the time of dismissal until the Court finds the dismissal to be for just cause. Current rule:
Agabon v. NLRC, 2004
Dismissal is valid (NO reinstatement and backwages)
BUT Employer to indemnify Employee in the form of nominal damages
Indemnity is stiffer than Wenphil Corp. vs. NLRC to discourage the practice of “dismiss now, pay later”.
RELIEFS
FOR
ILLEGAL
DISMISSAL
A finding of illegal dismissal entitles the Employee to:
(1) Reinstatement without loss of seniority rights and privileges, and
(2) Full backwages inclusive of allowances and to benefits or their monetary equivalent from the time withheld up to actual reinstatement (Art. 279)
REINSTATEMENT
It is the restoration of an employee who was unjustly dismissed to the position from which he was removed, that is, to his status quo ante dismissal (Santos vs. NLRC, 1987)
Alternative to Reinstatement
In lieu of reinstatement, Employee is entitled to separation pay of 1 month pay per year of service. (Gaco vs. NLRC, 1994)
General Rule: Reinstatement is a matter of right to an illegally dismissed Employee.
Exceptions:
(1) Closure of business (Retuya vs. Dumarpa, 2003)
(2) Economic business conditions: The reinstatement remedy must always be adapted to economic-business conditions. (Union of Supervisors v. Sec. of Labor, 1984) (3) EE’s unsuitability (Divine World High School
vs. NLRC, 1986)
(4) EE’s Retirement/Coverage (Espejo vs. NLRC, 1996)
Prescription Period
An action for reinstatement by reason of illegal dismissal is one based on an injury which may be brought within 4 years from the time of dismissal.(Art. 1146 of the Civil Code)
REINSTATEMENT PENDING APPEAL
Art. 223 is clear that an award for reinstatement shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement.
SEPARATION PAY IN LIEU OF REINSTATEMENT
Strained Relation rule
If reinstatement is not feasible, expedient, or practical, as where there is strained relations between the parties, particularly where the illegally dismissed employee held a managerial or key position (Quijano v. Mercury Drug Corp. 1998)
Kinds of separation pay
(1) SP as a statutory requirement for authorized causes
(2) SP as financial assistance found in the next section
(3) SP in lieu of reinstatement where reinstatement is not feasible; and
(4) SP as a benefit in the CBA or company policy Computation
SP as a statutory requirement is computed by integrating the basic salary with regular allowances employee has been receiving (Planters Products Inc. v. NLRC, 1989); allowances include transportation and emergency living allowances (Santos v. NLRC, 1987)
BACKWAGES
According to St. Theresa’s School of Novaliches Foundation v. NLRC (1998), backwages are earnings lost by a worker due to his illegal dismissal; a form of relief that restores the income lost by reason of such unlawful dismissal; it is not private compensation or damages; nor is it a redress of a private right but, rather, in the nature of a command to the employer to make a public reparation for illegally dismissing an employee.
Effect of failure to order backwages
A “plain error” which may be rectified, even if employee did not bring an appeal regarding the matter (Aurora Land v. NLRC, 1997)
LIMITED BACKWAGES
General rule: An illegally dismissed employee is entitled to full backwages.
Exceptions
(1) Where the employee was illegally dismissed but the employer was found to be in good faith.
(2) Delay of the EE in filing the case for illegal dismissal