THE DISMISSAL IS FOR A JUST OR AUTHORIZED CAUSE BUT DUE PROCESS WAS NOT OBSERVED.

Due Process to be Observed by The Employer - For termination of the employment based on the any of
the just causes for termination, the requirements of due process that an employer must comply with
are: (TWIN NOTICES)

Written notice should be served to the employee specifying the ground or grounds for termination and
giving the said employee reasonable opportunity within which to explain;

A hearing or conference should be held during which the employee concerned, with the assistance of
counsel, if the employee so desires, is given the opportunity to respond to the charge, present his
evidence and present the evidence presented against him;

A written notice of termination, if termination is the decision of the employer, should be served on the
employee indicating that upon due consideration of all the circumstances, grounds have been
established to justify his termination.

For termination of employment based on authorized causes, the requirements of due process shall be
deemed complied with upon service of a written notice to the employee and the appropriate Regional
office of the Department of Labor and employment at least thirty days before the effectivity of the
termination specifying the grounds for termination.

NOTE:

Under the so-called WENPHIL DOCTRINE if the services of the employee was terminated due to a just or
authorized cause but the affected employee’s right to due process has been violated, the dismissal is
legal but the employee is entitled to damages by way of indemnification for the violation of the right.

SERRANO vs. ISETANN et. al. abandoned the WENPHIL DOCTRINE and ruled that if the employee is
dismissed under just or authorized cause but the affected employee’s right to due process has been
violated, his dismissal becomes ineffectual. Therefore, the employee is entitled to backwages from the
time he was dismissed until the determination of the justness of the cause of the dismissal.

AGABON vs. NLRC (Nov. 17, 2004) abandoned the Serrano doctrine and REINSTATED THE WENPHIL
DOCTRINE. The sanctions, however must be stiffer than that imposed in Wenphil.

Synopsis on the developments in the law.

In the last couple of decades, the Supreme Court has grappled with the legal effect and the
corresponding sanction in cases where there exists a just and valid ground to justify the dismissal but
the employer fails to comply with the due process requirement of the law. Prior to the promulgation in
1989 of Wenphil v. NLRC, [170 SCRA 69, February 8, 1989], the prevailing doctrine held that dismissing
employees without giving them proper notices and an opportunity to be heard was illegal and that, as a
consequence thereof, they were entitled to reinstatement plus full backwages. Wenphil abandoned this
jurisprudence and ruled that if the dismissal was for a just or an authorized cause but done without due
process, the termination was valid but the employer should be sanctioned with the payment of
indemnity ranging from P1,000.00 to P10,000.00.

In 2000, the Supreme Court promulgated Serrano v. NLRC, [G.R. No. 117040, January 27, 2000], which
modified Wenphil. It considered such termination “ineffectual” (not illegal) and sanctioned the employer
with payment of full backwages plus nominal and moral damages, if warranted by the evidence. In case
the dismissal was for an authorized cause, separation pay in accordance with Article 283 of the Labor
Code should be awarded.

In 2004, the Supreme Court in Agabon v. NLRC, [G.R. No. 158693, November 17, 2004], abandoned
Serrano and effectively reverted to Wenphil (known also as the “Belated Due Process Rule”) and held
that a dismissal due to abandonment - a just cause - was not illegal or ineffectual, even if done without
due process; but the employer should indemnify the employee with “nominal damages for non-
compliance with statutory due process.” (Glaxo Wellcome Phils., Inc. v. Nagkakaisang Empleyado ng
Wellcome-DFA, G.R. No. 149349, March 11, 2005).