April 28, 2017

Codoy, Mendoza, & Rabe 

Attorneys at Law 
447 Sesame Avenue 
Big Bird, Taguig City 12456 

Jonas A. Katigbing
Supervisor, ABC Company
456 Harden Drive
Westbrook, Quezon City 23456

Dear Mr. Katigbing,

I hope you’ve been well. Recently you wrote to us that one of your employees, Anna Cruz, was
found to be making fraudulent travel reimbursements from your Company. Also, you have stated
that she has several records of tardiness and absences without leaves. You have told us that the
company is considering terminating her because of these circumstances.

Under these facts, the provision of the labor code on grounds for the termination of an employee
is relevant. It is provided, as one of the grounds, that an employer may terminate an employee for
gross and habitual neglect of duties.1 Gross negligence has been defined as the want or absence
of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a
thoughtless disregard of consequences without exerting any effort to avoid them.2 Repeated
absenteeism and tardiness constitute gross and habitual neglect of duty. 3 Repeated acts of
absences without leave and frequent tardiness reflect indifferent attitude to and lack of
motivation in his work. Therefore, given the repeated absences and tardiness of your employee,
the company already has a valid ground for termination in accordance to the law.

Consequently, there is a need then for the company to comply with the twin notice and hearing
rule. This constitutes 3 steps that the company would need to comply in order for it to not be held
liable for illegal dismissal.

1
A Decree Instituting a Labor Code Thereby Revising and Consolidating Labor and Social Laws to Afford Protection
to Labor, Promote Employment and Human Resources Development and Insure Industrial Peace Based on Social
Justice [LABOR CODE], Presidential Decree No. 442, art. 282, para. 2 (1974).
2
University of San Carlos, Gross and Habitual Neglect of Duty, available at http://www.labor law.usclaw.org/2010 /
02/04/gross-and-habitual-neglect-of-duty (last accessed Apr. 28, 2016).
3
Valiao v. Court of Appeals, 435 SCRA 543, 552 (2004).
There must first be a notice written specifying the grounds for termination, as well as giving the
employee reasonable opportunity within which to explain his side.4 The reasonable opportunity
may be through an administrative hearing or a written explanation within five days from receipt.5
Preferably, this notice must be personally served to the employee with a receiving copy signed
and kept by the management, as well as a notarized affidavit of service executed by the one who
delivered it.6 If personal service is impracticable, the notice should be sent via registered mail
with return card and by private courier to the employee’s last known address made known to the
employer.7

The second step is to have a hearing. This reasonable opportunity to be heard may be through an
administrative hearing or by way of a written explanation. If a hearing is scheduled, the
employee may be assisted with legal counsel and the former should be given opportunity to
respond to the charge, present his evidence, or rebut the evidence presented against him.8 In case
of a written explanation by the employee, the letter will suffice to comply with rule on
opportunity to be heard. In labor law, the essence of due process “lies simply in an opportunity to
be heard, and not that an actual hearing should always and indispensably be held”.9 Hence,
despite the absence of hearing or conference, the requirement of procedural due process is
complied once the employee has been given the opportunity to explain his side of the
controversy.10

Lastly, after affording the employee an opportunity to explain, the employer may proceed with
its investigation and decide on the issue. If the result leads to imposing termination as the
appropriate penalty, the employer must serve the 2nd Notice on the employee stating therein
“that upon due consideration of all the circumstances, grounds have been established to justify
his termination”.11

To sum up, based on the facts as I have recited them in this letter, I believe that there is cause in
accordance to law to terminate your employee. However, it must be emphasized that there is a
need for the company to further comply with the three earlier mentioned steps so as not to be
liable for illegal dismissal.
I hope this is helpful, and I would be happy to discuss this matter with you further. Please feel
free to call my office at (02) 345-1234 if you have questions, or would like to set up a time to
meet.
4
Department of Labor and Employment, Amending the Implementing Rules and Regulations of Book IV of the
Labor Code of the Philippines, Department Order No. 147-15, Series of 2015 [D.O. No. 147-15, s. 2015], rule I § 2(i)
(Sep. 7, 2015).
5
Philippine Pasay Chung Hua Academy v. Edpan, 578 SCRA 262, 265 (2009).
6
1997 RULES OF CIVIL PROCEDURE, rule 13, § 13.
7
Id.
8
D.O. No. 147-15, s. 2015, rule I, § 2(ii).
9
Metropolitan Bank and Trust Company v. Barrientos, 481 SCRA 311, 321 (2006).
10
Philippine Pasay Chung Hua Academy, 578 SCRA at 266.
11
 D.O. No. 147-15, s. 2015, rule I, § 2(iii).
Very truly yours,

John Martin Mendoza

Attorney at Law

Memo to client
Internal memorandum
Contract drafting
Editing symbols
Reading 2 – effective legal drafting
Legal citation
Demand letter