Dear Atty. Kathy,

I am a sales officer in a club membership company. Because of financial problems, for about two weeks, I did not immediately remit the payments I received from clients for their memberships. I really had plans to remit the membership payments after I receive my salary. However, when I reported for work on the day I was supposed to receive my salary so I could pay back the unremitted membership payments, I was denied entrance to the office. According to the guard, I was no longer allowed to go inside the office because I was in the list of dismissed employees. I called the HR officer and she confirmed I was dismissed due to loss of trust and confidence. Is this not an illegal dismissal since I did not receive a show cause memo and I was not given the chance to explain?

Basil

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Dear Basil,

In the case of Spouses Florentino vs. Oreiro (G.R. No. 206109, 25 November 2020), the Supreme Court has ruled that two requisites must concur to constitute a valid dismissal from employment: The dismissal must be for any of the causes expressed in Article 282 (now Article 297) of the Labor Code; and the employee must be given an opportunity to be heard and to defend himself.

Moreover, the requisites for dismissal on the ground of loss of trust and confidence are: The employee concerned must be holding a position of trust and confidence; there must be an act that would justify the loss of trust and confidence; and such loss of trust relates to the employee’s performance of duties.

In your narration, you admit to not remitting membership payments as a sales officer; but that you have plans to remit the payments after you receive your salary; and you were not given a chance to explain yourself.

Based solely on the above, it appears that your position is imbued with trust and confidence, since as a sales officer, you were responsible for receiving and remitting payments for memberships. Thus, subject to exempting and/or justifying circumstances, your non-remittance of payments for membership sales would merit the company’s loss of its trust and confidence in you, and may warrant your dismissal for cause.

It also appears, however, that while there may be just cause for the termination of your employment, you were denied procedural due process, since you were not given a chance to explain yourself and was only informed by the guard and the HR officer that you had been dismissed for loss of trust and confidence.

According to jurisprudence, procedural due process, consists of the twin requirements of notice and hearing. The employer must furnish the employee with two written notices before the termination of employment can be effected. The first notice apprises the employee of the particular acts or omissions for which his dismissal is sought; and the second notice informs the employee of the employer’s decision to dismiss him. The requirement of a hearing is satisfied as long as an employee is given the chance to present his /her case, even if no formal hearing actually took place.

Since it appears that you were not given the chance to explain yourself and present your case, you may be entitled to an award of nominal damages in the amount of P30,000.

Atty. Kathy Larios