Q: What is included in the opportunity to be heard? A: The first written notice to be served on the Ees should contain the specific causes or grounds for termination against them, and a directive that the Ees are given the opportunity to submit their written explanation within a reasonable period. Under the Omnibus Rules, reasonable opportunity means every kind of assistance that management must accord to the Ees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the Ees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. To enable the Ees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the Ees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the Ees.
After serving the first notice, the Ers should schedule and conduct a hearing or conference wherein the Ees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the Ees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement [King of Kings vs. Mamac,G.R. No. 166208, (2007)].
Q: The illegal dismissal case was referred to the Labor Arbiter. Is a formal hearing or trial required to satisfy the requirement of due process?
A: No. Trial-type hearings are not required in labor cases and these may be decided on verified position papers, with supporting documents and their affidavits.
The holding of a formal hearing or trial is discretionary with the labor arbiter and is something that the parties cannot demand as a matter of right. It is entirely within his authority to decide a labor case before him, based on the position papers and supporting documents of the parties, without a trial or formal hearing. The requirements of due process are satisfied when the parties are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in case it be decided that no hearing should be conducted or was necessary [Shoppes Manila vs. NLRC, 419 SCRA 354, (2004)].
Note: It is not necessary for the affiants to appear and
testify and be cross-examined by the counsel for the adverse party. It is sufficient that the documents submitted by the parties have a bearing on the issue at hand and support the positions taken by them [C.F. Sharp & Co. vs.
Zialcita, 495 SCRA 387, (2006)].
The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of
[PLDT vs. Bolso, 530 SCRA 550, (2007)].
Q: Who has the burden of proof in termination cases?
A: The burden of proof rests upon the Er to show that the dismissal of the Ee is for a just cause, and failure to do so would necessarily mean that the dismissal is not justified, consonant with the constitutional guarantee of security of tenure. Note: Due process refers to the process to be followed;
burden of proof refers to the amount of proof to be adduced. In money claims, the burden of proof as to the amount to be paid the Ees rests upon the Er since he is in custody of documents that would be able to prove the amount due, such as the payroll.
Q: What is the degree of proof required?
A: In administrative or quasi-judicial proceedings, substantial evidence is considered sufficient in determining the legality of an Er’s dismissal of an Ee
[Pangasinan III Electric Cooperative, Inc. vs. NLRC, G.R. No. 89878, (1992)].
Q: Perez and Doria were employed by PT&T. After investigation, Perez and Doria were placed on preventive suspension for 30 days for their alleged involvement in anomalous transactions in the shipping section. PT&T dismissed Perez and Doria from service for falsifying documents. They filed a complaint for illegal suspension and illegal dismissal. The LA found that the suspension and the subsequent dismissal were both illegal. The NLRC reversed the LA’s decision, it ruled that Perez and Doria were dismissed for just cause, that they were accorded due process and that they were illegally suspended for only 15 days (without stating the reason for the reduction of the period of petitioners’ illegal suspension). On appeal, CA held that they were dismissed without due process. Were petitioners illegally dismissed?
A: Yes. The Er must establish that the dismissal is for cause in view of the security of tenure that Ees enjoy under the Constitution and the LC. PT&T failed to discharge this burden. PT&T’s illegal act of dismissing Perez and Doria was aggravated by their failure to observe due process. To meet the requirements of due process in the dismissal of an Ee, an Er must furnish the worker with 2 written notices: (1) a written notice specifying the grounds for termination and giving to said Ee a reasonable opportunity to explain his side and (2) another written notice indicating that, upon due consideration of all circumstances, grounds have been established to justify the Er's decision to dismiss the Ee [Perez. vs. Phil. Telegraph and Telephone Company, G.R. No. 152048, (2009)].
Q: What are the guidelines in determining whether the penalty imposed on employee is proper? A:
1. Gravity of the offense 2. Position occupied by the Ee 3. Degree of damage to the Er
4. Previous infractions of the same offense
5. Length of service [ALU-TUCP vs. NLRC, G.R. No. 120450, (1999); PAL vs. PALEA, G.R. No.L-24626, (1974)]
Q: Felizardo was dismissed from Republic Flour Mills-Selecta ice cream Corporation for dishonesty and theft of company property for bringing out a pair of boots, 1 piece aluminum container and 15 pieces of hamburger patties. Is the penalty of
dismissal commensurate with the offense committed?
A: There is no question that the Er has the inherent right to discipline its Ees which includes the right to dismiss. However this right is subject to the police power of the State. As such, the Court finds that the penalty imposed upon Felizardo was not commensurate with the offense committed considering the value of the articles he pilfered and the fact that he had no previous derogatory record during his 2 years of employment in the company. Moreover, Felizardo was not a managerial or confidential Ee in whom greater trust is reposed by management and from whom greater fidelity to duty is correspondingly expected [ALU-TUCP vs. NLRC, G.R. No. 120450, (1999)].
Q: Is hearing an indispensible part of due process? A: No. Art. 277(b) of the LC provides that, in cases of termination for a just cause, an Ee must be given “ample opportunity to be heard and to defend himself.” Thus, the opportunity to be heard afforded by law to the Ee is qualified by the word “ample” which ordinarily means “considerably more than adequate or sufficient.” In this regard, the phrase “ample opportunity to be heard” can be reasonably interpreted as extensive enough to cover actual hearing or conference. To this extent, Sec. 2(d), Rule I of the IRR of Book VI of the LC requiring a hearing and conference during which the Ee concerned is given the opportunity to respond to the charge is in conformity with Art. 277(b).
Significantly, Sec. 2(d), Rule I of the IRR of Book VI of the LC itself provides that the so-called standards of due process outlined therein shall be observed “substantially,” not strictly. This is a recognition that while a formal hearing or conference is ideal, it is not an absolute, mandatory or exclusive avenue of due process [Perez vs. PT&T, G.R. No. 152048, (2009)]. Q: If the dismissal is for just or authorized cause but the requirement of due process of notice and hearing were not complied with, should the dismissal be held illegal?
A: No, in Agabon vs. NLRC (G.R. No. 158693, 2004), it was held that when dismissal is for just or authorized cause but due process was not observed, the dismissal should be upheld.
The Er, however, should be held liable for non- compliance with the procedural requirements of due process in the form of damages.
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