Defective dismissal

Dear Atty. Kathy,

I received a notice to explain for my three days of absence without official leave (AWOL). I submitted my written explanation, where I explained that the AWOL was not intentional because it was physically impossible for me to report for work due to my own medical emergency, supported with medical certificates. I was shocked when I received a termination notice, saying that my employer was terminating my employment based on my total AWOL of 10 days for one quarter. However, I did not receive any notice to explain for 10 days of AWOL, only the three days. I asked the HR Officer to give me a chance to explain the other seven days of AWOL, but she said the decision is final since they already complied with due process requirements when they issued the notice to explain and notice of dismissal. Is she correct?

Angelica

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Dear Angelica,

The Omnibus Rules Implementing the Labor Code (Book VI, Rule I, Sec. 2, as amended by DoLE Department Order No. 147-15), provides for the following requirements of due process in cases of termination for just cause:

A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

Based on your narration, you only received a notice to explain for three days of AWOL, but not the 10 days of AWOL, for which your employment was terminated. It therefore appears that your employer failed to observe procedural due process since it did not issue you a notice to explain specifying all grounds for the termination of your employment, particularly the other seven days of AWOL.

As ruled by the Supreme Court, such dismissal is procedurally defective as it appears that your employer failed to observe procedural due process in dismissing you due to your supposed AWOL for a total of 10 days. Thus, the HR Officer is incorrect in claiming that your employer is compliant with procedural due process requirements.

(C.P. Reyes Hospital and Angeline M. Reyes vs Geraldine M. Barbosa, G.R. No. 228357, 16 April 2024.)

Atty. Kathy Larios