Termination

Dear Atty. Kathy,

My friend was caught getting drunk and drinking alcohol in their company after office hours. During the investigation for this offense, he tested positive for illegal drugs, too. According to my friend, the HR officer talked to him and told him about the incident report on consuming alcohol within company premises, and testing positive for illegal drugs. The HR officer asked him what he can say about this, and he explained that he had family problems. The day after, my friend was surprised to receive a notice terminating his employment, for getting drunk and drinking alcohol in company premises, as well as, for testing positive for illegal drugs. Is this not illegal dismissal? My friend did not even receive a notice to explain and there was no administrative hearing.

Ken

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Dear Ken,

The following are the required two written notices in dismissal cases: (1) a notice informing the employee of the particular act or omission for which his/her dismissal is sought, and (2) a notice informing him/her of his/her dismissal.

It appears that the company did not provide your friend a notice to explain. There is also no mention that an administrative hearing was conducted. Instead, a day after the HR officer talked to your friend about getting drunk within company premises and testing positive for illegal drugs, the HR officer issued your friend a dismissal notice.

While no notice to explain was issued to your friend, as ruled by the Supreme Court, where the dismissal of an employee was for a just cause but due process was not observed, the dismissal is upheld, subject to the liability of the employer for noncompliance with the procedural requirements of due process.

In other words, where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his/her statutory rights, in the form of nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant circumstances, which, according to current jurisprudence, is P30,000.

Therefore, based solely on your narration, the dismissal of your friend is not illegal, but he may be entitled to the payment by the former company of nominal damages, in the amount of P30,000.

(Joy M. Villarico vs. D.M. Consunji Inc., et al., G.R. No. 255602, 3 March 2025)

Atty. Kathy Larios