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Due Process in Termination and Disciplinary Actions; Minimum Period for Reply to Show-Cause Notice
By: Atty.Fred | March 4, 2015 in HR and Labor
43 Replies | Related posts at the bottom of article
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.
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43 thoughts on “Due Process in Termination and Disciplinary Actions; Minimum Period for Reply to Show-Cause Notice”
arnold
April 22, 2015 at 9:58 pm
please cite the supreme court case for this.. salamat po.
Reply ↓
council
December 28, 2015 at 5:59 pm
KING OF KINGS TRANSPORT, v MAMAC
G.R. No. 166208
Reply ↓
Rio
May 5, 2015 at 10:36 pm
Can an employer terminate an employee for not attending a seminar? This company already makes their employees work 6 days a week, Monday to Saturday. They had the seminar scheduled on a Sunday, which is the only rest day of the employee. They also gave less than 1 week notice. The employee asked if she can just join in another batch in a latter schedule. The employee has to attend a reunion which took weeks to plan and confirm.
Reply ↓
xxx
July 14, 2015 at 2:27 pm
good day!
May I ask, in case of an absence of a written contract, can the employer terminate an employee? What are the grounds for termination of an employee without a written contract? Also, what are the rights of an employee in the absence of a written contract. Thank you very much.
Reply ↓
Ayam
July 20, 2015 at 9:10 am
Can employer terminate the employee for not nit hitting the quota? Tge employee received the 2nd warnung letter and the 3rd warning letter is the employee need to explain why ni disciplinary action shall be taken against for failure to satisfy the requirements of the perforamnce improvement plan.
Reply ↓
Emlin
September 7, 2015 at 5:18 pm
Hi Good day!
I would like to seek legal assistance from you as for the appropriate legal procedures in handling employment termination for the following cases:
(Note: Agent Employment Status: “Floating” and of w/o Pay for almost 2 Weeks Now)
A. Agent Registered with Incorrect “Middle Name” on All Company Records (e.g. Paychecks, Attendance, etc.)
Issue: Typographical Error incurred by the Employer/ Company. Agent registered with Incorrect Middle Name/ Middle Initial
Employment Details:
Affected/Incorrect Name Info:
• First Name: EMLIN
• Middle Name: “ONG” / O.
• Last Name: NABUA
Correct Legal Birth Name:
• First: EMLIN
• Middle Name: “EROJO”/ E.
• Last Name: NABUA
HISTORY:
• LOB: BPO. Agent hired with all requirements duly submitted, received and signed by HUMAN RESOURCES DEPARTMENT.
• Checked government contributions, all records duly updated by Agent with correct information.
• Agent still under Probationary period. However have noticed about the incorrect Middle Name/M.I. on assigned log-ins. Agent raised and escalated concern to immediate Training Manager and was promised data shall be rectified.
• However no Immediate changes on the records name rectified, thus Agent received 1st paychecks with incorrect name on cheque,
• Agent escalated complaint to H.R and Payroll Department this time as per Bank Regulations, incorrect name on cheques shall not be honored. Agent was advised by some Veteran Agents and in desperation followed the group to a cheque exchanger (black market)
• Cheque converted to cash.
• Agent made multiple follow-ups for the incorrect name be fixed and until now, not all records were fixed as per Agent investigative inquiries to all appropriate departments.
• Agent ATM/paychecks for a month of Incorrect Name. Agent and his family suffered financial struggles within the time being.
QUESTIONS:
1. Can Agent Name be rectified during overall duration of his Probationary Period? And how can this is fixed?
2. If this is caused by the company’s typo error who shall initiate the proper immediate corrections?
3. Will the Agent’s Employment History Records be affected in the future? Or if this shall significantly impact his future employment applications?
4. How would the company treat as such and the employee’s rights under Philippine Labor Code?
B. Agent Subject for Termination without Due Process of Law
Issue: Agent went “off-the-phone” and was not allowed to take calls and perform duties. Agent was informed received an “escalation report” from client due to fraudulent behavior. Agent never received prior notification nor initial coaching review performed and assisted by immediate supervisor and team Quality Analyst.
HISTORY:
• Agent sales performance placed in question. Agent sales were investigated, as quoted “ Management Finding: invalid and were wrongfully placed as Agent role-played the order transactions and acquired customer Credit Card Information, which supposedly out of the Agent’s scope of service.”
• As quoted, “Associate Manager: This was already observed as the agent’s behavior and investigations were validated by some witnesses about agent’s misconduct.”
• Agent never received any prior coaching reviews correcting Agent’s wrong call procedures. No Immediate supervisor intervention nor management incident reports as to call out the agent’s misconduct.
• Issue was then made into serious account and elevated for Administrative Hearing only up until there was already a “Client Escalation” that has happened.
• Agent were not given the proper documentation (e.g. complete call recording, video captures/screenshots, etc.) in respect to Agent’s incurred mistake for fair judgment and transparency.
• Agent was never given a copy of the escalation case/termination notification as held against company’s confidentially rights stipulated on the employment contract.
QUESTIONS:
1. Can the Employer immediately isolate an agent without his proper knowledge of the incident? Is there a legal process to handle such “sensitive” cases such as fraud and misconduct under our Philippine Labor Code?
2. As far as Agent experience is concerned, and as far as the BPO/Call Center Industry proper management procedures are concerned, there should have been an immediate supervisor or management intervention happened as to correct an agent improper behavior and misconduct to prevent future company damages and client negative escalation reports.
Was there an evident lapse in supervisory support and assistance happened in this case? What could have been the proper management performance handling?
3. Agent scheduled for an Admin Hearing, with Management Group and Human Resources. What are the legal process and how what will be the timeframe serving the applicable notices?
4. Is there a way an Agent redeems himself if proven the conduct was performed out of “Good Faith” as to maintain his sales and add performance points without compromising account jurisdiction? What meant is that the Agent exhausted all possible efforts to faithfully perform his daily duties which include: A. Reporting all computer issues and call downtime via group Chat (AIMS) and supervisors-on-duty? B. Escalated all possible chronic issues, as per based by agent BPO experience and/or related field? C. Real-time assistance and offered suggestions to management for affected concerns and seat transfer request for hardware/technical issues beyond agent’s control? D. Agent followed his “Support Info” – an agent tool guide/manual bible for all updated alerts and processes, in which, as far as Agent’s training is concerned, must be followed as newer updates are posted real-time. Not all manuals are taught within the short length of time in training.
5. Kindly enlightened us of all possible applicable legal process and employment rights for both Employer and Employee and how should these be agreed upon under fair treatment protected under the Philippine Labor Code.
************** SUMMARY *****************
a. What is Fraud and how is this treated per employment jurisdiction under Philippine Labor Code?
b. For cheque/payroll that was exchanged in the “black market” due to financial need, is this legal? Given that the exchanger received the cheques with incorrect name several times and was converted to cash with 10% deduction from total amount. Will the affected agents be legally held against as also a part of such transaction?
c. What will be the applicable damages filed against to the Employer? Of the clerical error and of the after-effects with respect to the agent socio-psychological interaction towards and within his working environment.
d. No notifications, SMS, calls or letters sent to employee from management, company, and from immediate supervisor about agent employment status. Agent currently on “floating-state” and had been out of office due to shame and lack of intellectual confidence as no previous criminal records, or misconduct of relation evident from agent employment history.
e. Agent still on Probationary. But no contributions were credited to Agent’s SSS, Pag-ibig and Philhealth records. Agent printed updated copies to support dispute.
Kindly assist us. Our family is in confusion as to how to overcome this crisis. I could not fully explain to them the details as the company will not provide me a copy of the incident/case so that our family can review over the company complaint against me.
Thank You so much and God Speed!
Respectfully,
EMLIN EROJO NABUA
(Agent-in-Grievance)
Contact: +639428152315/ +639269636955
Skype: emznabua
Reply ↓
Mark Anthony
October 12, 2015 at 9:06 am
hi i recieved a notice to explain from our HR and there are asking me to explain about the offense i had back in august (aug 20 2015) under class C or terminable case however from the time of comission i did not recieved any memo or coaching log i did not sign any acknowlegment for the same and i was surprise that on oct 7 i recieved this notice.
does anybody knows if the NTE is still valid and it is not condoned since i was not given any DA or coaching within 48 hrs from the time of discovery of the offense?
Reply ↓
Ed
June 24, 2016 at 10:45 am
Yes Mark, the NTE is still valid, it is only the first notice not yet the 2nd notice with the DA.
Reply ↓
Tatay
October 12, 2016 at 11:56 am
Actually the NTE was invalid if it was not served within 30 days of the date of the offense being realized by the Employer. If more than 30 days, and they continue the process, file with NLRC.
Reply ↓
matthea
November 18, 2015 at 6:10 pm
Questions:
1. Can an employee be terminated without him knowing about it first? Employee is under preventive suspension for a case under investigation. He was terminated October 28, 2015 but the notice was received through LBC on November 3, 2015. The employee has been contacting his employer about the status of his case through email and text messaging but he was not informed about it. Is this violation of the due process?
2. Can this employee file illegal dismissal because of procedural due process (am I correct?)
Many Thanks.
Reply ↓
Xonix
November 18, 2015 at 7:28 pm
Can HR Department conduct an interview or fact finding (its like an admin hearing with my understanding) without my respective Team Lead? I am from VXI Global Holdings, a BPO company. HR Team/Representatives, our Associate Director and Fraud&Legal department representatives called out my name while am on a call assisting a customer. They invited me to a room and they conducted an interview, fact finding as per them. “Piniplit nila akong paaminin sa isang issue sa buong account namin within the company, dumating sa point na pinagtaasan na nila ako ng boses para sabihin kong OO. Nung una piniplease nila ako na umamin na. Alam daw nila ang ginagawa ko but unfortunately walang akong idea kung bakit nila ako kinakausap. They didn’t even send a letter or email to me that I have to attend that kind of conversation.Para akong kriminal na pilit nilang dinidiin sa kasalanan na lahat. Pakiramdam ko ginawa nila kong alay just to cover up an issue na gusto na nilang tuldukan at masabi nalang na tapos na.” I need help at this time. I have many questions in my mind but my bosses can even answer any of those. Sabay sabay na silang naghugas kamay.
Reply ↓
Brit
December 8, 2015 at 1:51 pm
Does this apply to agency employees as well? An agency employee was caught by the guard on duty stealing raw materials from the principal company, does the principal company management have no right to ask the agency to replace the said contracted employee immediately?
Would really appreciate it if you could enlighten me.
Thank you.
Reply ↓
erlene
January 20, 2016 at 12:00 am
Bngyan ako ng show cause memo ng boss ko dahil Ngkasagutan sila ng husband ko over the phone nung time na supposedly my schedule ako para pumasok and due to unexpected problem s hws hndi ako nkapasok. My husband call her to inform and explain the reason of my absent. Yun nga lng it leads to an intense conversation. Is it valid n yung boss ko mismo ang ngbgay ng memo at hndi ang hr?
Reply ↓
anna
April 7, 2016 at 11:51 pm
What happens if an employee (designation is HR/admin,status probationary) is given an NTE (notice to explain) regarding behavioral attendance&tardiness issues fails to acknowledge and instead counter reacted with an immediate resignation letter?
Chat Conversation End
Reply ↓
Sarila
June 13, 2016 at 12:51 pm
Hi,
Hope i can find an answer here.
I am currently working in BPO company.
I was suspended for 30 days for a reason that i comitted a terminable offense. They said that what i did w/c is “saving a credit card info of a customer” is a terminable offense. Wala po kami o akong information about dun. Hindi rin po kami maayos na nainform about sa policy na un at wala cia sa contrata. Ngaun halos mag iisang buwan na wala pa rin po kaming update mula sa kanila at gusto ko po sana malaman kung tama ba na eterminate ang isang empleyado sa kasalanan na hindi naman sila well informed.
Reply ↓
Emerita S.
June 22, 2016 at 8:22 am
When you seem to commit an office like tardiness during Audit Season, then you after the Audit Season you have received a 6 month assessment of your reporting time to office; is it right and lawful? What is the minimum required time in the office or by the HR to issue a memo on tardiness?
For Recap, the Accounting Team has lost their Accounting Dept. Head and as a result they were all the ones who face the Auditors and work midnights, overnights and even weekends with no restdays not even paid a a full overtime pay…
Reply ↓
Florante Jr.
July 7, 2016 at 12:08 am
I only want to ask if the timeframe for the issuance of termination notice 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..?
Reply ↓
Desiree Joy
July 22, 2016 at 1:19 am
Training po ako and i received nte bec im absent. They give me 24 hours to explain and nakipagusap po ako na it should be 5 days para po ma depensahan ko ung mga grounds na inindicate nila sa nte. Pinagsign po nila ako without discussing kung para saan yung nte. Nagdemand po ako ng copy kase ang alam ko before you sign it dapat may explanation ka. Tapos pinalitan nila ung 24hours ng 5 days for me to explain in written on the same paper.ngtataka lang po ako after i received my copy wala pong naka pirmang hr man lng. Now after 2 days they decide n daw po na i terminate ako eh hindi pa po tapos ung 5 days e, and wala parin po ung explanation ko na ipapasa ko po ng 4th day sana. Tama po ba yung ginawa ng employer ko sa akin. Please help po. Ty
Reply ↓
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