Substantive Due Process
Substantive due process requires that the termination of employment be for a just or authorized cause as provided by law.
Article 282 of the Labor Code of the Philippines (“Labor Code”) provides the following just causes:
• Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
• Gross and habitual neglect by the employee of his duties;
• Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
• Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
• Other causes analogous to the foregoing.
Aside from just causes, there are also authorized causes for terminating employment. Authorized causes are set out by Articles 283 and 284 of the Labor Code, thus:
• installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking ; and
• when the employee is suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.
Unlike the termination for just causes, termination for authorized causes may require the employer to pay the affected employee separation pay ranging from one month pay to at least one month pay for every year of service, whichever is higher.
Note that, generally, an employee may terminate the employee-employer relationship by serving a written notice on the employer at least one month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. (See Article 285, Labor Code)
Procedural Due Process
For termination of employment based on just causes, the following procedural requirements must be complied with:
1. A written notice must be served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.
2. 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. (See Section 2(d), Rule I, Implementing Rules of Book VI of the Labor Code)
The employer should furnish the employee with two written notices before the termination of employment can be effected: a first written notice informs the employee of the particular acts or omissions for which his or her dismissal is sought, and a second written notice which informs the employee of the employer’s decision to dismiss him. In considering whether the charge in the first notice is sufficient to warrant dismissal under the second notice, the employer must afford the employee ample opportunity to be heard. (See Sang-an v. Equator Knights Detective and Security Agency, Inc., G.R. No. 173189, 13 February 2013)
For termination of employment based on authorized causes, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least 30 days before effectivity of the termination, specifying the ground or grounds for termination.
The requirements of substantive and procedural due process must be complied with in order for the termination of employment to be valid, and to avoid any liability on the part of the employer.