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Due process



Dear Atty. Vlad,

I’m working for an IT company for a year now. A week ago, I had a major fight with the HR Manager who accused me of several violations I did not do. He berated and called me an ingrate, and told me to leave. I walked out and it has been three days now since I have last reported.
A colleague told me that I will be terminated from work if I don’t report immediately. Can I be dismissed without basis?



Dear Ben,

While your employer has the inherent management right to direct the affairs of the Company, it cannot dismiss you without cause and without affording you due process.

As for just cause, when you fought with another employee (the HR Manager), you have committed a grave offense.

In the case of Pacific Mills, Inc. vs. Zenaida Alonzo, G.R. No. 78090, July 26, 1991, the Court stated:

“Under the circumstances, it is clear that, as the Solicitor General has pointed out, the continuance in the service of the latter is patently inimical to her employer’s interests and that, citing San Miguel Corporation v. NLRC, the law, in protecting the rights of the laborer authorizes neither oppression nor self-destruction of the employer. And it was oppressive and unjust in the premises to require reinstatement of the employee.

However, before management can impose any disciplinary action upon you, you are entitled to due process.

In the case of King of Kings Transport, Inc., et al. vs. Santiago O. Mamac, G.R. No. 166208 June 29, 2007, the Court pointed out that requirements of due process:

“To clarify, the following should be considered in terminating the services of employees:

(1) 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 the 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.

(2) 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.

(3) 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.

If you are dismissed without due process, then you are entitled to nominal damages in the amount of P30,000.00 pursuant to the case of Agabon vs. NLRC (G.R. 158693, 17 November 2004).
I hope that I was able to help you.

Atty. Vlad