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.

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

  1. PhanrtomStark

    Can this be considered as an admin hearing having 5 representative including the HR representative Tm, Account manager vs One employee that has no representative.

    That the HR questioned the morality of the employee
    That HR cited the employee as “Childish” uttering in an insulting tone of voice.
    That HR mentioned too that you will not win at any court using your excuses.

    Here is the Explanation of the employee:

    Allege infractions concerns the following:
    ? No Call No Show or otherwise known as “NCNS”
    ? Logging in and out without reporting to work
    ? Disclosures and sharing of passwords, NT log INS.
    — — — — — — — — — — — — — — — — — — — — — — — — — — NOTHING FOLLOWS– — — — — — — — — — — — — — — — — — — — — — — — — — — —
    And to start with, allow me to explain the following details to explain my part and after to also provide
    my thoughts regarding this matters imposed against me.
    ? That I appreciated that you informed me regarding this issue concerning my allege infractions
    and allowed and given me the chance to explain my part as part of the due process of this allege
    transgressions.
    NCNS – No Call No Show.
    In accordance with the Employees hand book as
    TITLE 1
    ATTENDANCE, WORK SCHEDULE AND OTHER EMPLOYMENT PRACTICES.
    Section 2. No Call – No Show, AWOL – Absence without Official Leave and unauthorized/unexcused
    absence.
    (Each day of No Call – No Show, AWOL or unauthorized/unexcused absence is treated as a single
    offense, consecutive or otherwise)
    1st 2 nd 3 rd 4 th 5 th
    VW WW FWW 3S D

    ? That dated December 7, 2017 I came home from Guinobatan Albay due to my Uncle’s death and
    I have to be the one to represent my clan as I am the only one that has valid documents to
    represent our clan in signing documents.
    ? On that same date my shift schedule is as stated fro11: pm to 8 am. From Guinobatan Albay, I
    manage to be home and just refreshed myself and proceeded to the site. I managed to log in at
    IROZ by accessing a PC at the COL bldg. With the permission of the on duty Security guard which
    name I can no longer recall.
    ? That I punched In IROZ at around 8:30 pm and since my shift is at 11 pm I took advantage taking
    a nap to relieve myself since I am very exhausted.
    ? That due to tiredness I over slept and woke up around 5 am and I was no longer able to report
    at the production floor.

    ? Dated December 14, 2017, TM XXXXXXXXX called my attention via email and requested to
    have a one on one session with him regarding the team’s Shrinkage” thus he uttered “
    Kailangan next time pagmay absent magpaalam at I avoid ito as much as possible” which I
    appreciate that he understood.
    ? Dated December 11, 2017 wherein we have a new schedule from 9pm to 6am, I went at the
    new Building Nap rum to take a nap before reporting to work and unfortunately I overslept
    again, and when I woke up, I went in at XXXXXXXX bay located at the 2 nd floor new bldg. And
    approached an agent that I can no longer recall and logged in IROZ even I am already beyond my
    reporting time.
    ? That on the same date when I was on my way downstairs I seen, “XXXXX” a certain support of
    McAfee that was noted with attitude, due to her presence as a Harsh person at the production
    floor I was rattled and no longer reported at the prod. Floor which was my supposed attention
    after I logged in at IROZ even I am already late.

    ? That given this reason that leads to my infractions, I like to apologize and hoping to give me a
    chance since these are non-intentional and I’ve been with the company for years my family and I
    even decided to move our home at the back of the company site just to comply the schedules
    provided to us. Also even we are consistently moved from one account to another which has
    given us the tough that this constant transferring of account is a company strategy or also
    known as Constructive Dismissal which I am hoping it is not as we know the news that peak
    season has ended and the company needs to lessen head counts to cut off the operational
    expenses and this allegations are only part of the discreet dismissal procedure.

    ? I know that I can display my rights too, being an employee here for more than a year now,
    Actually since 2012, and hope this company also recognize the following violation to have an
    immediate course of action observed by yours truly to show that the company house rules and
    regulations/ code of ethics and conduct is FAIRLY OBSERVED and implemented.

    Moreover, Thank you again for allowing me to explain my part, I am willing to take any course of action
    to me as long it will not lead to termination of my employment, however if the mentioned termination
    suffice , I will execute my rights to further contest this allegations imposed against me in a legal way.
    Hereby submitted this day of December ________ in the year of __________.

    XXXXXXXXXXXXXX
    Received by: Submitted by.
    Date Received.

    Also They have filled a complain letter too regarding an employee but was refused to be signed by the HR representative.

    TO HR

    FROM : XXXXXXXXXXXXXXXXXXXXX

    SUBJECT : Complain letter

    Greetings.
    We would like to formally file a complaint in regards with the following reasons in connection with our
    Handbook:

    Attitude towards Co-employees and Superiors –
    You must be able to show respect to your superiors, co-employees and others in general. You must be able to work
    well with others. This includes the ability to cooperate and to work as part of a team.
    It was also mentioned that
    “Everyone is expected to maintain a positive work environment that includes respect for individuals and treating each
    other as we would like to be treated. We owe it to each other to promote a positive work environment to conduct all
    business in a professional and positive manner.

    Based from the company hand book, it is stated the following.
    1. Shouting or utterance of invectives, obscene, rude, sarcastic remarks, and disrespectful or
    abrasive comments and/or insulting words or discriminatory languages against another
    employee, customer, client or business partner.

    1st
    D

    2. Use of discriminatory language in reference to race, religion, gender, ethnicity, sexual
    preference/orientation or lifestyle against another employee, customer, client or business
    partner, whether heard or not by the other employee, customer, client or business partner.

    1st
    D

    Our complaint s are as Follows:

    The support assigned to us under the name of JOANNA TRES REYES was noted too harsh when it comes
    to her behavior at the production floor and often noticed shouting to agents if none of the agents has
    made any sales and even hold breaks that demotivate co employees especially newbies like us. She was
    even tagged rude than the team manager that was so nice to us and act “Professionally”.
    That dated December 30, 2017 the mentioned person (XXXXXXXXXXXX) was in RAGE and
    approached us showing her resentment and FINGER POINTED at “us” NEWBIES and uttered unsavory
    remarks due to we do not have any sales yet and we feel we are insulted at the production floor due to
    her sarcastic & discriminatory manner and language.
    We also received and email dated Dec. 30, 2017 as follows:

    GOOD JOB,!
    XXXXXXXX and XXXXXXX– ALAS 7 KAMO NAG LOG IN, ALAS 10 NA BOKYA PA GIRARAY?! MOVING
    FORWARD, STOP USING AUX 7 FOR YOUR DOCUMENTATION! NAKA PRIO 2 TABI KAMO, LEARN TO
    MULTI-TASK AND PARA MAKADAKOL KAMO CALLS!
    IPAPA-PRIO 1 KO NA KAMO! IRISKUSAR!

    Note that we are only newbies and she will transfer us to PRIO 1? We are not yet well versed and
    knowledgeable to the process. Is she willing to take that risk just to make sales?

    Also during our NESTING time. Why are we taking in calls for the entire shift even sometimes without
    the presence of a support? Without the support and familiarized with the process the risk of providing
    incorrect resolution to a client’s concern is crucial and can affect the integrity of the account due to
    allowing newbies with no support to take in calls for the entire shift with no support that can leads to
    providing incorrect resolutions to the customers concerns, even the tenured agents refused to provide
    assistance as noted having “Attitude issues”

    Also we are fully aware that Unjust vexation is punishable under the 2nd paragraph of
    Article 287 of the Revised Penal Code that says:

    “any person who commits a course of conduct directed at a specific person that causes substantial
    emotional distress in such a person and serves no legitimate purpose shall suffer the penalty of arresto
    mayor in its minimum period or a fine ranging from PHP500 (US$10) to PHP5,000(US$100) or both.”

    Hence we are executing this complaint so for your office to be aware of this person’s attitude that
    severely affects our performance loss of trust and confidence, what we only want is a POSITIVE

    WORKING ENVIRONMENT as we are all under one employer and we are all employee and the respect
    should be fairly equal to all and not display “Power over another individual”.

    This person clearly doesn’t possess the traits of a “Good Leader” or “Good Support” and we wonder why
    no appropriate course of action is being imposed to such “Attitude”

    There are others employees that knows well regarding this matter but chosen not to speak. Moreover
    signatory of the below employee shall serve as proof that the above mentioned has taken place at the
    aforementioned time and date.

    However few days after being unschedules after the adming hearing “DAW” the employee got the termination notice that she refused to sign.

    The HR representative told her Sige ka baka madelay ang backpay mo nyan at di ka pwede kakakuha ng kopya ng termination notice kasi nga refused to sign ka.

    This conversation including the admin hearing “KUNU” was recorded.

    Reply
  2. Assec

    Good day! May ksamahan po aq sa trabho n suspended for 30days and was supposedly accused of stealing foods. Company has evidences on him.He then name names and i was one na dinadamay nya for the allegations to him. What is the legal process on this.. Thank u and Godbless

    Reply
  3. John francis

    I had an executive escalations… which was dated jan 18,2018… i have heard.. that QA would like to give me a final written warning due to the level of executive of the complaint if the customer since she directly email the ceo of the company… in good with that.. due to neglect of duty.. however this manager would like to push a NTE for me… I would like to ask the time frame… if none of those papers hasn’t been serve to me yet… a final written warning and a NTE..

    Reply
  4. joel

    Sir,

    Good day. today is February 14, 2018. Just last week, my wife actually receives several memos of tardiness dated way back May 2017. Can this memo be a evidence for the termination of my wife. Thank you.

    Reply
  5. Virgo

    Hello, Sir. A termination letter is dated a month earlier than actual receipt by addressee, but it bears the phrase “effective immediately”. What will be its reckoning date – the date of its issuance? or the date of receipt by the addressee? What happens if the addressee(the person terminated) has rendered service prior to receipt of the termination letter? Will there still be entitlement to salaries and benefits?

    Thank you very much for your valuable time, and the needed information.

    Reply
  6. Melanie

    Hi,
    I also have a question, I was served with a document stating that due to absence without leave/ unauthorised absence I would have to be provided with a letter stating why was I out for those days. But prior to that, during my absence, I’ve already told them that I was sick, and after that I have to attend to my 1 year old son who was sick right after me so I had to take care of him. I even forwarded them the medical certificates provided by the doctors so as not to be tagged as unauthorised absence, but after a month, they are asking me to sign the said letter. My question is, is it valid for them to issue a paper eventhough I’ve already submitted them the necessary documents for my absence, if so, is the paper still valid eventhough it’s more than a month when the paper got served? Hoping for you quick response, this issie had been putting a lot of stress in me at work even at home.
    Kind regards,
    Mel

    Reply
  7. roger

    ask ko lang po ilang Months po ba ang validity ng reprimand? halimbawa nagbigay ako sa kanya ng written reprimand feb 2, 2018 dahil sa late tapos pagka march 20 inulit nya ang offense, another reprimand ba (as per IRR 3 day suspension ) or back ako to zero ako.?

    Reply
  8. Doreen

    magtatanong lang po kung ang habitual tardiness can be considered as grounds for termination? ang first offense po hanggang kelan ililink yung 1st memo sa second memo? halimbawa po nagissue ng 1st memo ng January2018 after a year po ba ng January 2019 laps na po yung una nyang memo? o pwede na po yun gawing 2nd step na handbook ng company?

    Thank you

    Reply
  9. Dela Cruz

    How long should it take for the written notice of termination or dismissal of the case be issued after the administrative hearing? They advised a verdict will be issued soon but I have not received anything yet.

    Reply
  10. Josh

    For suspension as a penalty for an offense committed (not a preventive suspension), is it also a maximum of 30 days? How is it interpreted? Is it 30 days – 1 month, or 30 working days, which is actually a stretch of 40 days including the 2 weekend days in between?

    Reply
  11. Julie

    Mag 3 months palang po AQ sa work then 1 day DQ po alam ang dahilan bakit po AQ pinag last day na wala man lang pong memo na tatanggalin AQ at wala namn po aqng violation na ginawa sa company dman lang po AQ kinausap Kong bakit AQ tinanggal sa trabaho nagulat nalng po AQ wala po aqng naisip na dahilan…may pananagutan po ba c employer?

    Reply
  12. Eden

    what if hindi namn ung employee yung nakagawa ng mali and it is just one of his relatives pwede pa din ba syang fill-an ng NTE is that valid?

    Reply
  13. CBAP

    Hi May I know po where should be the proper place t conduct a hearing? I have a hearing tomorrow and our HR told me to meet at Starbucks Coffee. This is my first hearing with regards to allegations that they files against me.

    Thank you and God Bless!

    Reply
  14. ADR

    Hi,
    I want to ask the same question of Mr. Florante Jr. as i copied below:

    “I only want to ask if the timeframe for the issuance of termination notice/notice to explain was still inclusive or valid in the right to due process of an employee if the notice was only issued after four months upon the violation of the said CRR/Company Rules and Regulation..?”

    Is this considered null in void if not valid?

    Reply
  15. LittleMe

    I have a case filed on my co-worker. It has been reported to the office for administrative actions. Each sides were taken and we were given a note that the case has been filed and for evaluation. That was 10 months already and no feedback to date. I am not asking for anything but to have this processed and evaluated fairly as I am carrying this burden since 2008. I just wanted justice. Can the company be filed because of this?

    Reply

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