Procedural Due Ptocess

Security of
Tenure,
Termination &
Procedural
Due Process
1. Security of Tenure
The right to security of tenure means

that a regular employee shall remain
employed unless his/her services is
terminated for just or authorized cause
and after observance of due process of
law.
Department of Labor & Employment

1. Security of Tenure
Regular Just or authorized cause+ due process
Just/authorized cause+due process;

Probationary failure to hurdle reasonable
standards; expiration of probationary
period
Casual Just/authorized cause+due process
Project Just/authorized cause+due process;
completion of the project
Seasonal Just/authorized cause+due process;
end of season
Fixed Term Just/authorized cause+due process;
expiration of the term
Just/authorized cause+due process;
Contractual expiration of the contract; expiration
of the service contract or phase
thereof Department of Labor & Employment
2. Termination of Employment
• By the employee
• By the employer

• By the employee
RESIGNATION ABANDONMENT

• By the employer
ACTUAL CONSTRUCTIVE

• By the employer = ACTUAL
Cause/Ground
+
Due Process
Valid termination
DUE PROCESS in the context of

termination of employment means
the right of an employee to be
notified of the reason for his/her
dismissal and, in case of just causes,
to be provided also with the
opportunity to defend
himself/herself.
Aspects of due process
Substantive
Procedural

•SUBSTANTIVE = Cause/Grounds
•PROCEDURAL = Process/
Opportunity to be
heard

Sources of Grounds for

Termination
• Law (Arts.282-284, LCP)
• Contract (CBA,
Employment Contract)
• Company Rules &
Regulations
JUST CAUSE vs. AUTHORIZED CAUSE
JUST CAUSE – refers to a wrongdoing committed

by the employer or employee on the basis of
which the aggrieved party may terminate the
employer-employee relationship.
AUTHORIZED CAUSE – refers to a cause brought

about by changing economic or business
conditions of the employer.
Just Causes of Termination
 Serious Misconduct
 Gross and Habitual Neglect of Duty
 Fraud or Willful Breach of Trust; Loss of Confidence
 Commission of a Crime or Offense

by Employee
 Other Analogous Cases

SERIOUS MISCONDUCT
* Must be serious
* Must relate to the performance of the

employee’s duties/in connection with the
employee’s work
* Must show that the employee has become

unfit to continue working for the employer.

GROSS & HABITUAL NEGLECT OF DUTY
Negligence: “want of care”
Under this provision, the

neglect must be both
GROSS and HABITUAL

FRAUD OR WILLFUL BREACH OF TRUST
FRAUD
◦ act, omission or concealment which involves a breach of duty,
trust or confidence, and which causes injury to another
◦ Committed against the employer
◦ Work-related
Examples:
◦ Loss of confidence
◦ Conflict of interest
◦ Falsification offenses
COMMISSION OF CRIME by the employee against:

• the person of his employer
• an immediate member of employer’s family
• employer’s duly authorized representative (e.g. manager or supervisor)

OTHER ANALOGOUS CAUSES
A “catch-all” provision for Just Cause
Must have an element similar to those found in the specific just causes
enumerated
Must show fault or culpability

on the part of the employee

Authorized Causes of Termination
Redundancy - employees’ positions are

“superfluous” because their work is
duplicated or unnecessary (e.g.
installation of labor saving devices,
merger of two companies, streamlining
of operations)
Retrenchment - serious and imminent

losses force the employer to let some
employees go
Authorized Causes of Termination
Closure/Cessation of Business - the

employer stops doing business
Disease - employee suffers from a

disease and his continued
employment is prohibited by law or is
prejudicial to his health or to the
health of his co-employees
Authorized Cause Termination
Authorized
Cause/Ground
+
1 mo. Notice to the
DOLE & Employee/s
Valid termination

Separation Pay in Authorized Cause Termination
Redundancy
At least one month salary for every year of
service, a fraction of at least six months being
considered as one whole year
Closure/Cessation of Business
Retrenchment
Disease
At least one-half month pay for every year of
service, a fraction of at least six months being
considered as one whole year
Separation Pay in Authorized Cause Termination
- The termination pay should not be less

than the employee’s one month pay.
- Basis of computation is his latest salary
rate. IF reduced by the employer to
defeat the intention of the Code, the basis
of computation shall be the rate before its
deduction.

3. Procedural Due Process
To charge
OR not to
charge?
Punishable Initial fact- To put on Formal Decision

act or prev. sus- investiga- and
finding
omission pension? tion Penalty

The Investigation Process
KNOWLEDGE OF
CAUSE
30 days minimum
“SHOW CAUSE “ MEMO
Attach statements,
other evidence
EMPLOYEE’S REPLY
Attach statements,
other evidence if
requested
FORMAL
INVESTIGATION
Decision

PREVENTIVE SUSPENSION
Preventive Suspension is imposed on the employee pending formal investigation of a

reported violation.

CONSIDERATIONS:
◦ Have you conducted an initial fact finding that can be the basis for
determining the need for preventive suspension?
◦ Does the continued presence of the employee being investigated

cause a threat to the -- life or property of the employer?
-- life or property of a co-employee

Remember:
◦ Preventive suspension cannot exceed 30 days
◦ Must be accompanied by written notice

Effects of Termination
1. Legal
2. Cost of Termination
Effects of Termination: Legal
JUST CAUSE With due process Without due process
With just cause Dismissal legal Dismissal legal, but
employee entitled to
NOMINAL DAMAGES
(tempered)
(Agabon v. NLRC)
Without just Dismissal illegal, employee Dismissal illegal, employee

cause entitled to: entitled to:
1. Separation pay in lieu of 1. Reinstatement
reinstatement 2. Separation pay in lieu of
2. Backwages reinstatement
3. Damages and attorney’s 3. Backwages
fees if in bad faith 4. Damages and attorney’s
fees if in bad faith

AUTHORIZED With Notice Without Notice
CAUSE
Not Dismissal illegal, Dismissal illegal,

authorized employee entitled to: employee entitled to:
cause 1. Reinstatement 1. Reinstatement
2. Separation pay in lieu 2. Separation pay in lieu
of reinstatement of reinstatement
3. Backwages 3. Backwages
4.Damages & attorney’s 4. Damages &attorney’s
fees if in bad faith fees if in bad faith

AUTHORIZED With Notice Without Notice
CAUSE
Authorized Dismissal legal, employee Dismissal legal, but

cause entitled to: SEPARATION employee entitled to:
PAY 1. SEPARATION PAY
2. NOMINAL DAMAGES
(stiffer) (JAKA Food
Processing Corp. v. Pacot,
et al., G.R. No. 151378, 28
March 2005- closure due
to business losses)

Effects of Termination:
Cost
• Workplace Relationship
– Atmosphere of distrust, skepticism
towards management and immediate
superiors.
- Perception of callous management attitude
on employees’ concerns, harbored ill
feelings against management
• Production
• Litigation

QUIZ- ASSIGNMENT
Do a procedural due process on terminating or subjecting and employee to

sanctions:
Scenario:
An employee has been absent for 5 days without official leave, the employee did
not even call his supervisor to call in sick and it was . You as the human resource
personnel how would you handle such a case?
Do the following:
1. Make a notice to explain for the employee. (you should have a basis according
to the company rules and regulations)
2. The scenario is that the employee did not answer the NTE, what will you do
next?
3. After the due process make a decision in form of writing about the absences
the employee did according to the company rules and regulations

Procedural Due Ptocess

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Security of

The right to security of tenure means

Department of Labor & Employment

Regular Just or authorized cause+ due process

Just/authorized cause+due process;

Department of Labor & Employment

Department of Labor & Employment

Department of Labor & Employment

DUE PROCESS in the context of

Aspects of due process

Department of Labor & Employment

Department of Labor & Employment

Sources of Grounds for

JUST CAUSE vs. AUTHORIZED CAUSE

JUST CAUSE – refers to a wrongdoing committed

AUTHORIZED CAUSE – refers to a cause brought

 Gross and Habitual Neglect of Duty

 Fraud or Willful Breach of Trust; Loss of Confidence

 Commission of a Crime or Offense

 Other Analogous Cases

Department of Labor & Employment

* Must relate to the performance of the

* Must show that the employee has become

Department of Labor & Employment

Negligence: “want of care”

Under this provision, the

Department of Labor & Employment

COMMISSION OF CRIME by the employee against:

• an immediate member of employer’s family

• employer’s duly authorized representative (e.g. manager or supervisor)

Department of Labor & Employment

A “catch-all” provision for Just Cause

Must show fault or culpability

Department of Labor & Employment

Redundancy - employees’ positions are

Retrenchment - serious and imminent

Closure/Cessation of Business - the

Disease - employee suffers from a

Department of Labor & Employment

- The termination pay should not be less

Department of Labor & Employment

Punishable Initial fact- To put on Formal Decision

Department of Labor & Employment

Department of Labor & Employment

Preventive Suspension is imposed on the employee pending formal investigation of a

Department of Labor & Employment

◦ Does the continued presence of the employee being investigated

-- life or property of a co-employee

Department of Labor & Employment

Department of Labor & Employment

Without just Dismissal illegal, employee Dismissal illegal, employee

Department of Labor & Employment

Not Dismissal illegal, Dismissal illegal,

Department of Labor & Employment

Authorized Dismissal legal, employee Dismissal legal, but

Department of Labor & Employment

Department of Labor & Employment

Do a procedural due process on terminating or subjecting and employee to

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