Sample Templates and Phraseology for Procedural Due Process in Employee Dismissal

Sample templates are provided, with discussion of the rules to guide employers, HR Managers, and business owners of the right procedure in terminating employees who committed dismissible offense against the company.

“Dismissible offense” means violation of company rules where the penalty is dismissal from service. Under the law and rules, this requires observance of procedural due process which is a notice and a hearing.

To summarize, the steps to dismiss an employee where there is a just cause are as follows:

Step 1. Notice to explain (first notice).—The common line used in this case is:

“Please explain within five (5) calendar days57 from receipt of this notice why no disciplinary action should be taken against you for the following acts…”

Step 2. Hearing or conference.—The employee must be informed that he may bring along a

representative or a lawyer. Sample phrase:

“In relation to the notice to explain sent to you on ______ which you received on _________, you are hereby being invited to a hearing/conference to be held on December ___ 2014, at Never Ending Floor, Skyhigh Bldg., Ayala Ave., Makati, at 8:00 a.m. You may bring with you your counsel or support person, if you desire.

Failure on your part to attend the hearing/conference shall be deemed as waiver of your right to due process. Please be guided accordingly.”

Step 3. Notice of dismissal (second and final notice)

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

Read more on procedural due process discussion by Atty. Elvin:

Read more on procedural due process by Atty. Villanueva:

Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements

After evaluating the pieces of evidence, testimony of witnesses, reply of the employee and result of the hearing/conference, the employer now makes his final assessment. If he thinks grounds have been established to justify the dismissal, he should issue the final notice of termination or the second notice.

The question is when should the termination take effect? Should the employer observe the 30-day period before making the dismissal effective? Not necessarily. The employer may even make the dismissal effective immediately upon receipt by the employee of the second and final notice.

As already mentioned, the procedure however is different if the ground for termination is the authorized cause (redundancy, retrenchment, etc.), or those grounds expressly provided under Article 298 of the Labor Code, as amended. Unlike in Article 297 where the employee is at fault, the notices required in Article 298 are as follows:

1. Notice to the employee at least 30 days before the effectivity date of his redundancy, retrenchment, etc.; and
2. Notice to the DOLE at least 30 days before the effectivity date of the employee’s redundancy, retrenchment, etc. using the DOLE-prescribed re- ports and form.

Once the above requisites have been complied with, the dismissal is already on solid ground. However, this does not mean that the employee cannot challenge his dismissal.

The employer’s inherent right to discipline is subject to reasonable regulation by the State in the exercise of its police power.

The employer’s rules cannot preclude the State from inquiring whether the strict and rigid application or interpretation thereof would be harsh to the employee.

The dismissed or terminated employee has a right to contest his dismissal in labor court.