Procedure - Labor Code, Department Order No. 147-15 | Illegal Strike | Authorized Causes - Labor Code, Department Order No. 147-15 | TERMINATION BY EMPLOYER

Comprehensive Discussion on Termination Due to Illegal Strike and the Applicable Procedure under the Labor Code and Department Order No. 147-15

I. Legal Framework

1. Labor Code of the Philippines: The right of workers to engage in concerted activities, including the right to strike, is recognized under the Labor Code. However, this right is not absolute; it must be exercised in accordance with law and established procedure. Strikes undertaken without complying with mandatory legal requirements, or conducted for prohibited objectives, are deemed illegal.

2. Department Order No. 147-15: Issued by the Department of Labor and Employment (DOLE), DO No. 147-15 provides the detailed procedural guidelines governing the termination of employment due to just and authorized causes. Although more commonly referenced for dismissals under just causes (e.g., serious misconduct, willful disobedience, gross and habitual neglect of duty), its procedural due process requirements also apply when termination is effected due to participation in an illegal strike, which is considered a valid ground for termination.

II. Nature of an Illegal Strike

1. Definition of an Illegal Strike:

   • A strike is a concerted work stoppage undertaken by employees.
   • It becomes illegal if it is:
     a. Declared or staged without the requisite notice of strike and/or without observing the prescribed cooling-off and strike vote periods.
     b. Conducted during the pendency of mandatory arbitration or certification proceedings, or in defiance of a return-to-work order issued by the Secretary of Labor and Employment or by the National Labor Relations Commission (NLRC).
     c. For purposes not authorized by law, such as purely political or sympathy strikes without any direct labor dispute.

2. Consequences of Illegality:

   • Once a strike is declared illegal by competent authority (e.g., the NLRC, the Secretary of Labor, or the courts), union officers who knowingly participated in its illegal conduct may be summarily terminated.
   • Rank-and-file members who participated, depending on their degree of involvement and provided there are aggravating circumstances, may also be subject to disciplinary action up to and including dismissal. However, the law tends to be more lenient with ordinary members, often allowing reinstatement without backwages, unless their participation was coupled with unlawful or violent acts.

3. Distinction Between Officers and Members:

   • Union Officers: The Labor Code explicitly states that union officers who knowingly participate in an illegal strike lose their employment status. The rationale is that leaders are presumed to know the legal requirements and to guide their members accordingly.
   • Union Members: Ordinary participants generally retain the possibility of reinstatement unless their actions during the strike are particularly egregious (e.g., committing serious misconduct, violence, or defiance of lawful orders).

III. Procedure for Declaring and Establishing Illegality of a Strike

1. Administrative and Judicial Determination:

   • Normally, the legality or illegality of a strike is determined by the NLRC or the Secretary of Labor and Employment, especially when the dispute has been certified for compulsory arbitration.
   • The determination of illegality follows proper proceedings which may involve:
     a. Submission of position papers and evidence by both employer and union.
     b. A formal hearing or conference before a labor arbiter or panel in the NLRC.
     c. An official order or decision declaring the strike illegal.

2. Effect of a Declaration of Illegality:

   • The decision or order clearly stating the strike’s illegality forms the legal basis for an employer to proceed with disciplinary action, including termination of union officers and, under appropriate circumstances, members.

IV. Procedural Due Process in the Termination of Employees for Participation in an Illegal Strike
Even if the ground for termination arises from an illegal strike, the employer must still observe the fundamental requirements of due process, as laid out by the Labor Code and by DO No. 147-15. Specifically:

1. Notice Requirements:

   • First Written Notice (Show-Cause Notice): Before an employer may terminate an employee for having participated in an illegal strike, the employer must issue a written notice specifying the act or omission for which termination is sought. This notice should contain:
     a. A detailed narration of the facts and circumstances that serve as the basis for the charge of illegal participation.
     b. Reference to the official finding (e.g., the declaration of illegality by the NLRC or the Secretary of Labor).
   • The employee must be given a reasonable period (commonly at least five [5] calendar days) within which to submit a written explanation or rebuttal.

2. Opportunity to Be Heard:

   • After the employee receives the show-cause notice, the employer should provide a hearing or conference if requested by the employee, or if the circumstances require it. This step ensures that the employee has a fair chance to explain his or her side, present evidence, and argue why termination should not occur.

3. Second Written Notice (Decision to Terminate):

   • Once the employer has considered the employee’s explanation and all the evidence at hand, the employer must issue a second written notice communicating the decision.
   • If the decision is to terminate, the notice must clearly state the reason(s) for the termination, referencing the illegal strike participation and the basis for determining that such participation warrants dismissal. It should reflect that the employer fairly evaluated the employee’s explanation and all relevant circumstances.

4. Compliance with the “Two-Notice Rule”:

   • The entire disciplinary process, consistent with DO 147-15, adheres to the “two-notice rule”: the first notice is a statement of charges and the second notice is the final decision. This procedure ensures that due process is not merely a formality but a meaningful safeguard for the employee’s rights.

5. Good Faith and Documentation:

   • The employer must document every step of the process, including the issuance of notices, the employee’s response, and the conduct of any hearing or conference. Proper documentation is crucial to support the legality and fairness of the termination if questioned later before labor tribunals or courts.

V. Distinguishing Authorized Causes from Just Causes in Relation to Illegal Strikes
While illegal strike participation can be viewed as a form of serious misconduct or willful breach of employment obligations (hence often categorized under “just causes” for termination), it may also be considered under the broader classification of authorized causes arising from the Labor Code’s provisions on labor relations. The key point is that the termination process must still follow procedural due process, regardless of how the cause is classified. The ground is effectively derived from a legal determination of wrongdoing (i.e., the illegal strike), which provides the employer a lawful basis to sever the employment relationship.

VI. Remedies and Recourse for Affected Employees

1. Right to Contest the Termination:

   • Employees who believe their termination for participation in an illegal strike was improper—either because the strike was not illegal, they were not actually involved, or due process was not observed—may file a complaint for illegal dismissal before the appropriate labor arbiter of the NLRC.

2. Burden of Proof on Employer:

   • The employer has the burden of proof to show that the strike was indeed declared illegal by a competent authority and that the concerned employee’s participation was knowing and voluntary.
   • The employer must also prove compliance with procedural due process requirements.

3. Potential Outcomes:

   • If the NLRC or appellate courts find that the termination violated due process or that the employee was not properly implicated, remedies may include reinstatement, backwages, or damages, depending on the attending circumstances and the extent of the violation.

VII. Importance of Strict Compliance
Due to the sensitivity and gravity of termination, especially when connected to fundamental labor rights like the right to strike, strict adherence to the procedural guidelines in the Labor Code and DO 147-15 is critical. Employers must ensure that:

1. The strike was declared illegal by a competent authority.
2. The implicated employees (especially union officers) are given due process as mandated by law.
3. The disciplinary action taken is proportionate and documented thoroughly.

VIII. Conclusion
Termination based on participation in an illegal strike is permissible under Philippine labor law, but it is not an automatic or summary process. The employer must first establish the strike’s illegality through lawful proceedings, identify the culpability of the employees involved—particularly distinguishing officers who knowingly led or participated from ordinary members—and then follow the strict procedural due process prescribed by the Labor Code and Department Order No. 147-15. Failure to adhere to these procedures can render the termination illegal and expose the employer to significant legal liabilities.