What is due process of law?
On August 29, 2007, the core of HR Philippines composed of Jing Ureta, Edwin Ebreo, Ricky Gumaru, Jet Nera, Migs Hipolito and myself, plus volunteers who share our advocacy, successfully held the 1st HR Philippines National Conference. And in this day, several firsts also happened– HR Philippines, a Yahoo group without formal structure and budget, held a learning event in this magnitude. If I am not mistaken, this event was also the first conference managed by ARIVA. And guess what, hehe, this event is my baptismal of fire in public speaking, my first gig, yay!
The topic given 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 learn.
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’ right.
“The state affords the constitutional blanket of rendering protection to labor but it also protect 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, its the basis for corrective or retributive discipline. For authorized causes, its 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, its hearing the side of the employee and evaluating all facts and evidences 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 to illegal dismissal.
- Wenphil Doctrine (Feb 1989)– This doctrine was brought about by the dismissal of employee. SC ruled that company had basis to dismiss employee but since the procedural due process was not observed, company paid damages but 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 to this new doctrine. Though dismissal of 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 backwards.
- Agabon Doctrine (Nov 2004)– The Supreme Court again went back to Wenphil because the Serrano Doctrine resulted to abuse by terminated employees- enriching themselves by questioning the legality of their dismissal.
The application of 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
- Termination: Just Causes (1), Killing You Softly
- Termination: Just Causes (2), I Just Killed A Man
- 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.
Founder of LODI Inc. (Learning and Organization Development Institute, Inc.) and Co-Founder of Blogwatch. Mentor and Dad of 2 Gen Z Professionals.
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