DUE PROCESS

A Learning Session with

District 1 Leaders
October 1, 2011
 Funshop
1. Sa inyong pagsabot, unsa ba ang angayang
pamaagi sa pag-handle sa employer sa mga
disciplinary issues?
2. Ang cashier usa ka non-managerial nga
position, usa ba kini ka position of trust?
3. Tama ba nga walay ipatigayon nga hearing sa
pagresolba ug disciplinary issues?
4. Mamahimo ba’ng ibutang sa preventive
suspension ang usa ka empleyado? Ngano
man?
5. Ang preventive suspension ba usa ka silot?
In your own understanding,
how should disciplinary
issues be handled by the
employer?
 Employer must have written rules
and regulations with penalties

Employees must be furnished copies

of the rules

Infractions of rules and regulations must be handled

consistent with due process

The worker must be involved in the determination of his

culpability
Consolidated v. Oberio

In labor cases, the employer has the burden of

proving that the dismissal was for a just cause;
failure to show this would necessarily mean that
the dismissal was unjustified and, therefore,
illegal. To allow an employer to dismiss an
employee based on mere allegations and
generalities would place the employee at the
mercy of his employer; and the right to security
of tenure, which this Court is bound to protect,
would be unduly emasculated.
 THE DUE PROCESS

SUBSTANTIAL DUE PROCEDURAL DUE

PROCESS PROCESS
 Substantial Due Process

Just Cause Authorized Cause Disease

 JUST CAUSES
**Sexual Harassment
Immorality
Serious Misconduct / Wilful **Uttering
Theft obscene words
Disobedience **challenging superior for arules
fight
Violation of company

* Abandonment
Gross & habitual neglect
* Habitual Tardiness
of duties
* Absenteeism

* Dishonesty-Falsification of TC
Fraud or breach of trust & * Theft of company property
confidence * Using company property for
personal use

Commission of a crime * Proof beyond reasonable

Against the employer / family doubt is not necessary
Members/agents Ex. Physical Injury caused to
employer

Other analogous causes

Serious Misconduct
 MISCONDUCT is improper or wrong conduct. It
is the transgression of some established and
definite rule of action, a forbidden act, a
dereliction of duty, willful in character & implies
wrongful intent.
 SERIOUS MISCONDUCT. It has to be grave
and aggravated character and not merely trivial
or unimportant.
 However serious, it has to be in connection with
the employee’s work to constitute just cause for
his separation.
Willful Disobedience
• Employee’s conduct must be willful or
intentional, the willfulness being
characterized by wrongful & perverse
attitude
• Order violated must be:
- Reasonable
- Lawful
- Made known to the employee
- pertains to duties of employee
Gross & Habitual Neglect
• Absence of that diligence that an ordinarily
prudent man would use in his own affairs.
• 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 evidences a
thoughtless disregard of consequences
without exerting any effort to avoid them.
 (Citibank vs. Gatchalian et al, G.R. No.
111222, Jan. 18, 1995)

• A bank employee was found grossly

negligent when she delivered newly
approved credit cards to a person she had
not even seen before and she did not even
ask for receipts, thereby enabling fictitious
persons to use those cards, causing
P740,000 loss to the bank.
Abandonment: Elements
1) Failure to report for work or must have been
absent without valid or justifiable reason;
2) A clear intention on the part of the employee to
sever the employer-employee relationship as
manifested by some overt acts.
Note: The second element is the more
determinative factor.
“Mere absence or failure to report for work,
even after notice to return, is not
tantamount to abandonment” (Seven Star v.
Dy, Jan 24, 2007)
 CONTRAST: Fraud & Loss of
trust & confidence
• Fraud – can be committed by anyone regardless
of position. It is any act, omission, or
concealment which involves a breach of legal
duty, trust or confidence justly reposed and is
injurious to another (Jease Franch Piano &
Organ Co. vs. Gibbon)

• Loss of Trust & Confidence

1) Applies to positions of trust; OR
2) Routinely charged with custody of money and
property
FRAUD: Falsification of Time cards
Case: San Miguel Corp. vs. NLRC, G.R. No. 82467,
June 29, 1989
Facts of the case:
 Complainants were former security guards of
San Miguel Corp. who were dismissed for
falsification of time cards.
 They made false entries showing that they
reported for work on February 19-20, 1983. The
truth is, they went on a hunting trip to San Juan,
Batangas with their Chief.
 Also, one of the complainants was caught red-
handed punching in not only his own time card
but also those of two other employees.
NLRC RULING: LA ordered reinstatement without
loss of seniority. This was affirmed by the
Commission.

RULING. The SC set aside the decision of the

NLRC and ruled:
• Although it may be conceded that the
complainants acted under some degree of moral
compulsion when they agreed to accompany their
chief, they were certainly under no compulsion
from him to falsify their time cards and thereby
defraud the company by collecting wages for
the dates when they did not report for work.
• For obedience to be considered as an exempting
circumstance, it must be in compliance with a LAWFUL
ORDER and that the person commanding act within the
scope of his authority.
• General rule: an inferior should obey his superior. But
between a general law which enjoins obedience and a
prohibitive law which plainly forbids what the superior
commands, THE CHOICE IS CLEAR.
• To invoke obedience for exemption, it must be shown that
both the person giving order and the person who executes
it are acting within the limitations prescribed by law.
• The falsification and fraud which the private respondents
committed against their employer are inexcusable. Their
chief’s initials on the false entries in their time cards did
not purge the documents of their falsity.
• Their acts constituted DISHONESTY and SERIOUS
MISCONDUCT, lawful grounds for their DISMISSAL
under Art. 282 (a) & (c) of LC.
Cashier, a non-managerial position.
A position of trust?

• A special and unique employment relationship

exists between a corporation and its cashier.
More than most key positions, that of cashier
calls for utmost trust and confidence. It is the
breach of this trust that results in an employer’s
loss of confidence in the employee.
• PAL cashier who maintained petty cash fund
was validly terminated for misappropriating
P34,338.69 (Caneda v. NLRC, Feb. 26, 2007)
Analogous Causes
• The cause must be due to the voluntary
and/or willful act or omission of the
employee. (Nadura vs. Benguet
Consolidated, Inc. G.R. No. L-17780, Aug.
24, 1962)
Case 1: M.F. Violago Oiler Tank Trucks vs.
NLRC, 117 SCRA 544 [1982]

The employer (Violago Trucks) could not

continue the employment of four of the
complainant employees because Petrophil
had prohibited them from entering their
premises as they were suspected of
illegally diverting gasoline.
Case 2: A. Marquez, Inc. vs. Leogardo, Jr., 128
SCRA 244 [1984]

The refusal of the employer (Marquez Inc.) to allow

and employee to drive cargo truck due to the
ban imposed against the employee by San
Miguel Corp. to enter Coca-Cola plant premises
who had found the employee guilty of theft of
empty coke bottle, is VALID.
THE NEW PRODEDURAL DUE PROCESS
IN JUST CAUSE

FIRST WRITTEN NOTICE TO EXPLAIN

WRITTEN EXPLANATION OF WORKER

ADMINISTRATIVE INVESTIGATION

FINAL WRITTEN NOTICE

King of Kings Transport, Inc. et al vs. MAMAC, G. R. No.
166208, 29 Jun 2007 526 SCRA 116

a) The first written notice must contain:

i) the specific causes or grounds for termination

ii) a directive that the employee is given the opportunity to

submit his written explanation within a reasonable period –
at least five (5) calendar days from the receipt of the notice

iii) a detailed narration of the facts and circumstances that

will serve as basis of the charge
iv) the company rules, if any, that were violated and/or
which among the grounds under Article 282 the employee
is charged.
b) After the first notice, the employer must
schedule and conduct a hearing or
conference, wherein the employee will be
given the opportunity to:
i) Explain and clarify his defense to the
charge;
ii) Present evidence in support of such
defense;
iii) Rebut the evidence presented against
him.
Can we dispense with the
hearing requirement?
 Guiding Principles on hearing
requirement for dismissal cases
(Perez et al. v. Philippine Telegraph & Telephone Company
et al., G.R. 152048, April 7, 2009)

• “ample opportunity to be heard” means any meaningful

opportunity (verbal or written) given to the employee
• A formal hearing or conference becomes mandatory
only when requested by the employee in writing or
substantial evidentiary disputes exist or a company
rule or practice requires it, or when similar
circumstances justify it.
• The “ample opportunity to be heard” standard in the
Labor Code prevails over the “hearing or conference”
requirement in the implementing rules and regulations.
c) The second written notice must indicate
that:

i) All the circumstances involving the

charge have been considered; and that

ii) Grounds have been established to

justify the severance of his employment.
 Can an employee be placed
under preventive suspension?
Yes, ONLY if his/her presence poses a
serious and imminent threat to life or
property of employer and other
employees, and only for ONE MONTH,
beyond which the employee is entitled
to his pay and benefits.
 Is preventive suspension a
penalty?
NO. Preventive suspension is a special
type of suspension where the
employee is laid off PENDING
RESOLUTION OF CASE where his
continuous presence presents a threat
to the security of his fellow employee
and/or prevents the fair and just
resolution of the said case.
Procedural Due Process in
DP Step 1
Reasonable orders are easy enough to
obey;
It is bureaucratic, among others, that form
The habit of ...DISCIPLINE.