http://jlp-law.com/blog/reinstatement-pending-appeal-waiting-pendulum-swing/ Philippine laws and legal system (JLP-Law blog) Mon, 06 Sep 2010 06:08:16 +0000 hourly 1 http://wordpress.org/?v=3.0.1 http://jlp-law.com/blog/reinstatement-pending-appeal-waiting-pendulum-swing/comment-page-1/#comment-8399 Illegal dismissal and damages at Atty-at-Work Sat, 07 Jul 2007 06:56:54 +0000 http://jlp-law.com/blog/reinstatement-pending-appeal-waiting-pendulum-swing/#comment-8399 [...] I previously wrote that a violation of the twin-notice requirement, which is an aspect of due process, does NOT render the dismissal illegal or ineffectual:  There are two basic issues in the foregoing scenario. The first issue relates to the employer’s violation of statutory due process, which is the subject of flip-flopping Supreme Court decisions. In the Serrano case (2000), the Supreme Court ruled that where the employer had a valid reason to dismiss an employee but did not follow the twin requirements of due process, i.e., notice and hearing, the dismissal is ineffectual and the employer must pay full backwages from the time of termination until it is judicially declared that the dismissal was for a just or authorized cause. Fortunately, this is no longer the controlling doctrine. On 17 November 2004, the Supreme Court promulgated its decision in Agabon reversing this rule. Now, where the dismissal is for a just cause, the lack of due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer is liable for damages, the amount of which is subject to the discretion of the court, for violating the employee’s right to due process. This is a reversion to the pre-Serrano doctrine enunciated in the Wenphil case. Indeed, it is only fair that when the dismissal is for cause, the failure to comply with the twin-notice rule should not invalidate the dismissal. [...] [...] I previously wrote that a violation of the twin-notice requirement, which is an aspect of due process, does NOT render the dismissal illegal or ineffectual:  There are two basic issues in the foregoing scenario. The first issue relates to the employer’s violation of statutory due process, which is the subject of flip-flopping Supreme Court decisions. In the Serrano case (2000), the Supreme Court ruled that where the employer had a valid reason to dismiss an employee but did not follow the twin requirements of due process, i.e., notice and hearing, the dismissal is ineffectual and the employer must pay full backwages from the time of termination until it is judicially declared that the dismissal was for a just or authorized cause. Fortunately, this is no longer the controlling doctrine. On 17 November 2004, the Supreme Court promulgated its decision in Agabon reversing this rule. Now, where the dismissal is for a just cause, the lack of due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer is liable for damages, the amount of which is subject to the discretion of the court, for violating the employee’s right to due process. This is a reversion to the pre-Serrano doctrine enunciated in the Wenphil case. Indeed, it is only fair that when the dismissal is for cause, the failure to comply with the twin-notice rule should not invalidate the dismissal. [...]

]]> http://jlp-law.com/blog/reinstatement-pending-appeal-waiting-pendulum-swing/comment-page-1/#comment-113 Philippine e-Legal Forum » Blog Archive » Management and HR Tools Thu, 12 Oct 2006 04:12:26 +0000 http://jlp-law.com/blog/reinstatement-pending-appeal-waiting-pendulum-swing/#comment-113 [...] The employer has to contend with the fact that the law, including the Labor Code, looks favorably on labor. For instance, in the 2000 case of Serrano, the Supreme Court ruled that where the employer had a valid reason to dismiss an employee but did not follow the twin requirements of due process, i.e., notice and hearing, the dismissal is ineffectual and the employer must pay full backwages. This, however, is no longer the controlling doctrine (see discussion here). [...] [...] The employer has to contend with the fact that the law, including the Labor Code, looks favorably on labor. For instance, in the 2000 case of Serrano, the Supreme Court ruled that where the employer had a valid reason to dismiss an employee but did not follow the twin requirements of due process, i.e., notice and hearing, the dismissal is ineffectual and the employer must pay full backwages. This, however, is no longer the controlling doctrine (see discussion here). [...]

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