What is due process?
The topic assigned to me was due process. And I will be sharing the gist of my talk thru this blog, so peeps who were declined bec. of space limitations, can still follow what transpired in the conference.
Due process is a mechanism meant to balance the rights of employees vis-a-vis management rights and prerogatives.
Employee discipline is a prerogative given to management to address value negating employee behavior.
“Success of industries is the foundation upon which just wages may be paid. There can be no success without efficiency. There can not be efficiency without discipline…” Batangas Transportation Co., et al vs. Bagong Pagkakaisa ng mga employees and Laborers of BTCo., GR No. L-1706 March 10, 1949
However, this prerogative is not absolute because management must also respect employees’ rights.
“The state affords the constitutional blanket of rendering protection to labor but it also protects the right of employers to exercise what are clearly management prerogatives, so long as the exercise is without abuse of discretion.” Pantranco North Express vs. NLRC GR No. 106516, Sept. 21, 1999.
Management rights and prerogatives oftentimes collide with employee rights. To ensure the interest of both sides are taken into account, due process must be observed. Due process have two elements:
- Substantive and
Substantive Due Process provides the basis or grounds to proceed. For just causes, it’s the basis for corrective or retributive discipline. For authorized causes, it’s the basis for closure, retrenchment, or redundancy.
Procedural Due Process, on the other hand, provides the steps and requirements on how to go about a certain termination.
For just causes, it’s hearing the side of the employee and evaluating all facts and pieces of evidence vis-a-vis the allegations. This involves the twin notice rule:
An admin hearing is an optional process, but I highly suggest to hold this in cases involving termination.
For authorized causes, it’s the notices that needs to be sent to DOLE and employees 30 days before the effectivity of the termination. A public doctor’s certification is also needed for health reasons. Plus the corresponding separation pay if any, for each case.
Non observance of due process have resulted to unnecessary embarrassment to some companies in the past. Plus cost of litigation and settlement. When due process is not followed, it can result to either illegal dismissal or illegal suspension
- Illegal dismissal will result to reinstatement and payment of back wages.
- Illegal suspension, on the other hand will result to payment of lost wages.
Aside from the basic framework we have just discussed, it’s prudent to take into account Supreme Court doctrines relevant to employer and employee relations. Some of which are:
- Pre Wenphil Doctrine (before 1989) — The non-observance of substantive and procedural due process will result in illegal dismissal.
- Wenphil Doctrine (Feb 1989)– This doctrine was brought about by the dismissal of employees. SC ruled that company had a basis to dismiss the employee but since the procedural due process was not observed, the company paid damages but the dismissal was upheld.
- Serrano Doctrine (Jan 2000)– Because the Wenphil doctrine led to abuse where the practice “terminate now pay later” by some companies became prevalent. The Supreme Court, then, modified Wenphil resulting in this new doctrine. Though dismissal of an employee will still be upheld, if there are sufficient grounds, the monetary damages, shall now be computed from the time the Supreme Court ruled the case with finality and backward.
- Agabon Doctrine (Nov 2004)– The Supreme Court again went back to Wenphil because the Serrano Doctrine resulted in abuse by terminated employees- enriching themselves by questioning the legality of their dismissal.
The application of the due process is also a two-way street. Business owners must observe this whenever they will exercise its prerogative and rights. Here are examples:
- Preventive suspension
- Progressive Employee Discipline
- Termination: Just Causes
- Termination: Authorized Causes
- Termination: Health Reasons
Likewise, employees must also observe due process if and when they decide to leave the company.
This is rather a complex topic, if you have an interesting experience on this regard, feel to share.
What will happen if HR Dept. didn’t conduct an admin hearing?,
Admin hearing is only necessary for complex cases, or if employee cannot explain him/herself in writing.
Otherwise, if employee is given opportunity to explain in writing even without a hearing, the integrity of the process is not affected
Hi, I would like to clarify some parts of the whole process. A coworker of mine allegedly committed a violation which led to some sort of property damage. Before an NTE was issued, he was coerced by the manager to provide an incident report on the event. He initially refused since there was no NTE issued yet but was told that additional violations ( insubordination ) was going to be added if he continued to refuse. he produced and incident report in fear of the consequences. Incidentally, the NTE was largely based on his incident report since the manager did… Read more »
an incident report is not an admission, but a simple report. if the incident resulted in damage or losses to property or has affected the health, safety, and security of another person, or a deviation from the standard procedures, then it will merit an NTE