Due Process in Employment Termination
The Right to Due Process
In the context of employment, due process is the legal requirement that the employer must respect all of the employee's legal rights instead of just dismissing them arbitrarily or for no reason. In the Philippines, this involves, among other things, giving the employee the opportunity to be heard and to defend themselves.
Notice to Explain (NTE)
Upon discovery of an alleged offense, the employer is obliged to notify the employee in writing. This is usually termed as a Notice to Explain (NTE), which sets out the alleged infractions committed by the employee. The employee must be given a reasonable period to answer the NTE and prepare their defense.
Preventive Suspension
Employers may resort to preventive suspension to temporarily remove the employee while an investigation is ongoing. This is especially applicable when there is a reasonable belief that the employee’s continued presence poses a serious and imminent threat to the company or its property. However, it is crucial that the employer clearly stipulates that preventive suspension is not a penalty but a measure to facilitate the investigation.
Investigation and Meeting
After serving the NTE and putting the employee on preventive suspension if necessary, the employer typically calls for an administrative hearing or conference. During this stage, the employee can present evidence, call witnesses, and provide justifications or explanations regarding the allegations.
Termination Decision
Upon conclusion of the investigation and the administrative hearing, the employer must issue a notice of decision. If termination is the course of action decided upon, it must be supported by substantial evidence proving that the employee committed the alleged infraction, warranting dismissal.
Appeals and Legal Remedies
An employee who believes that they have been illegally terminated may file a case for illegal dismissal. Employers should be prepared to present the procedural and substantive justifications for the termination. Failing to follow due process can result in the dismissal being declared illegal, entitling the employee to reinstatement and back wages.