Due Process in Termination and Disciplinary Actions; Minimum Period for Reply to Show-Cause Notice

Practitioners in the field of labor or Human Resources (HR), as well as managers and executive officers of companies, are aware that an employee may only be dismissed for cause. Disciplinary actions, including dismissal from work, must comply with both substantive and procedural due process. Substantive due process requires a valid cause for the dismissal. For procedural due process, outlined below, an interesting question is this: is there a minimum period that must be given to the employee to answer the show-cause notice?

We recently received a query as to how many days should be given to the employee to answer the show-cause notice. We find this query “interesting” because there is no provision in the Labor Code, or its Implementing Rules and Regulations, which spells out a specific period. What’s more interesting, however, is that the Supreme Court has construed this period to mean five (5) days from receipt of the show cause notice. The procedural requirements, as summarized by the Supreme Court, are:

(A) 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 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.

(B) 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.

(C) 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.

63 thoughts on “Due Process in Termination and Disciplinary Actions; Minimum Period for Reply to Show-Cause Notice

  1. Ryan

    Good morning. Im working is account manager in distribution company. i was a probitionary period for 6 months. I didnt meet my quarterly target for two concencutive quarter. My superior told me that may last day of work is on dec 8 2016 verbaly with out documentation. I didnt recieve my 13 month pay and my last salary. Would like to know if tama po ba ginawa nila sakin naka hold sa knila ang 13month pay ko and ung last salary. Looking forward to your response. Thank you

    Reply
  2. Unknown

    hi

    i would like to seek advice or answr from ..

    i am an empolyee of a cooperative for almost 4 years now. And just last month i receive a memo stating that i am under 30 days of preventive suspension undr investigation in compliance of a due process .. And now after the 30 days of my preventive suspension, the employer gave me another memo stating of the anomalous and unlawful conduct and activities that has been filed to me and they want me to explain the reason why , with in 24 hours and that i am still not allowed to report to work provided that they will pay me of the extension of my suspension .. 1 wk aftr i submit my explanation, the employer then now gave me a memo. a notice of termination due to anomalous. which is so hard for me to accept. The memo of my suspension states that aftr the investigation, the grievance committee will notify me for the next administrative hearing but after that 30days , instead of admin.hearing they serve me the notice of termination.

    My question is, is it ok that they didnt called me for the admin hearing? am i still qualify to rcv my 13th mo. pay, my last salary, cash gft or other bonuses and a separation pay? because until now i ddnt rcv any of that. the management says that the 13th mo. and salary has been hold by the bod and that they did not tackle abwt the status of my cash gift if i am able to rcv or not. My last day of work before i am suspenped is in the middle of november 2016.. hope u can help me with it. thanks

    Reply
  3. Jing

    Magtatanong lang naman po ako kung may mahahabol pa po ba ako sa aking kompanyang pinagtrabahuhan ng almost 7 years and 8months. Naterminate po ako last December 2, 2016 dahil sa grounds of Tampering which is automatic termination ang nkalagay sa Code of Conduct ng Company namin. Aminado naman po ako sa ginagawa ko. Nag tamper po kasi ako resibo ng hotel which is allowed sa amin eh 1,3K eh ang aktwal hotel expense ko lng naman po during nung nag Davao po ako eh 800 pesos lang. Kaya ko naisipan mag tamper which is Mali naman talaga po. Yung po kasing bagong President ng Company eh foreigner na po kaya hindi napakiusapan. Automatic termination na which is sabi ng iba kung kasama eh sana pinag force resignation na lang daw dpat nila ako. Kaso TERMINATION po ang ginawa sa akin. Wala po akong nakuha sahod maski yung isang linggong ipinasok ko. Saka wala din po akong Certificate of Employment na ibingay sa akin. Kaya po ngayon ay hirap na hirap po akong makakuha ng trabaho. Breadwinner pa naman ako ng family ko. Sana may nakapg advise naman po sa akin kung may mahahabol pa po ba ako. Aminado naman po ako sa kamalian ko. Salamat sa mga sasagot po. Thanks!

    Reply
  4. rita

    need thoughts on my case … can you be accused of theft kung wala namang nawala? my co employee accused me of stealing wherein wala namang nawala sa kanya though nakita sa cctv na 2x kong hinawakan ang bag nya pero wala namang nawala. sa admin hearing walang kasamang legal rep ng ofc, 2 hr and ung head namin nung accuser. k was given a termination letter which i need to step out of office same day. tama po ba iyon? hindi naman nakita sa cctv kung binuksan ko ang bag and tama ba na same day akong paalisin? i was in the company for 6 years walang bad record, i even had multiple awards, all my records were good.

    Reply
  5. John

    Hi,

    I just want to ask po if allowed bang mag add ng evidence si HR outside dun sa naka state NTE (Notice to Explain) that they served? Di po ba na yung NTE is expected to contain all the necessary details, solid evidences, and narrative stating the alleged violation? They reserved the on Feb 13 and went back to me after 2 weeks and invited me for a hearing and they said there’s a new evidence against me. im hoping that you help me with this. Thank you.

    Reply
  6. Aimee

    Good Day, May I ask if the employer can serve Termination of contract without giving the first notice of preventive suspension and not conduct hearing or conference for the employee to be heard or explain his/her side.. i hope you to answer my question, thank you.

    Reply
  7. Bluish

    Got suspended on Dec 19,2016 due to tardiness. Receive a final written warning on Dec 29,2016. Admin hearing on Jan 5,2017 , I told them na I’ll pass the resignation letter na lang and so I did the next day (Jan6). They told me that whichever comes first (result of admin hearing & 30 days render). Last January 12,2017 they told me to go to the hr/er office after my shift. Pagpunta ko po dun sinabihan na ako na yung araw na rin yun ang last day ko at terminated na ako.
    First Question: May possibility ba na makakuha ako ng separation since 1 yr & 4 naman ako sa company & regular na ako.
    Second Question: Pwede ko bang e reklamo sa DOLE/NLRC dahil hindi umabot ng one month ang pag terminate sa akin? Nabasa ko po kasi sa ibang article na before e terminate ang employee dapat ay may ma receive sila na letter indicating her/his last day of work. Please advise.

    Thanks,
    LC

    Reply
  8. Zarvin

    Hi! Is a termination letter valid if the letter itself has no HR signature but all the other things that you mentioned are presented?

    Reply
  9. Jemarie

    I have a query. I hope someone could enlighten me.
    Can an employer terminate an employee because of not submitting a leave form because the employee has no leave credits left? The reason for the absence is illness like flu. Hence, the employee was marked absent in all of his classes on the specific period of absences. The employee has already sent a written explanation of the absences. The absences were made January 16 to February 3 (not consecutively made). Then the written notice was made April 10 and received April 25. Can this be a ground for termination? Thank you for taking time answering this.

    Reply
  10. joy

    what if yung hrd ay pinagsabi sa ibang tao ang DA na ibinaba saken?

    ano po ang pwede kong ireklamo ?

    Reply
  11. Nyxl

    What is the duration of a violation from a Civil Service Employee of the Philippines before it can be filed for disciplinary action?

    For example Tardiness how long should it take to receive any notice for disciplinary action?

    Reply
  12. Lola Ojastro

    Hi,

    I have been placed under preventive suspension for an incident that took place last November 2016. My co-worker filed a complaint against me last May 9 and in May 29 I was served a preventive suspension. I understand that an employer may “may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.” My questions are:

    (1) is it possible to challenge my supposed “imminent threat” to the workplace if the incident happened last November and the co-worker is still able to go to work and that why did it take 20 days to put me under suspension if my presence posed a threat to the company?

    (2) Can I resign under preventive suspension? I was asked to attend a hearing and submit my response last June 5 and I did, admitting to the offense, but a day prior to that I submitted my letter of resignation. Now I have not received any acknowledgement of receipt of my resignation since I last sent it 7 days ago and the HR manager is insisting that: (a) she cannot accept my resignation because she is not my superior, but I have emailed my superior the letter since I am not allowed to enter company premises; (b) they will have to finish the investigation before responding to my resignation.

    Will appreciate your thoughts on what my next course of action could be? I don’t intend to return to the company and just want to carry on looking for new employment

    Reply
  13. Cheng

    We had a shortage amounting to 85,000 last february, after preventive suspension for over 1 month our employer decided to terminate our employment due to loss of trust and confidence. We already tried to settle this before the suspension. Our boss decided to divide it to all on duty staff and she decided to deduct it to our salary for 2 cut off. During our suspension, she returned all our payment and our salary. Then one of the staff invite us to go to our office to receive our letter of termination. Today, I received a letter that his attorney were asking us to settle the 85,000 within 5 days or they will file a case. They just chose us, 3 senior staff to settle this.

    May habol po ba kami kung sakali? During my shift, wala pong nakitang illegal activity nung pinareview sa cctv. Saka gano po kami katagal nila pwede takutin sa kaso? Simula umpisa po kasi ayun na ang sinasabi ng atty nya pero sa resolution na ginawa dismissal lang naman po. We worked in a VIP Casino Junket and our boss our not paying overtime and holidays.

    Also that time, nagkamali ng record ung night shift may hindi naipasok sa rolling na 87,000,000 sa account ng player so she enjoyed the 1.25% commission of that. Kaya ang buong akala namin yung mali na shortage ay hindi nya na sisingilin.

    Reply
  14. Edwin

    Good morning, I just would like to ask if I can refuse an admin hearing if I have already & willfully admitted in my Notice to Explain my fault in violating one of our company’s code of conduct (punishable by 8-10 day suspension up to dismissal depending on the gravity of the offense)? I just would like to spare myself the stress and trauma that it may bring about to my 50-year old body.

    Reply
  15. mhicajhee

    After receiving an NTE without a notation that the employee is suspended. Is it legal for HR to advise the employee not to go to work because in the system the employee is not yet reinstated/reactivated.

    Reply

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