Procedural Due Process for Termination Involving Other Types of Employment

Procedural due process is also required for termination of employees with limited security of tenure. While security of tenure is not exclusive to regular employees, the other forms of employment are accorded limited scope.

Project employees, generally, cannot be dismissed, prior to the completion of the project or a phase thereof. Fixed- term employee cannot be terminated prior to the end of the term stipulated by the parties.

Seasonal employees cannot be dismissed before the end of the season. Casual employees cannot be terminated before the end of the contracted unrelated work.

Hence, even dismissal of probationary employees requires observance of due process. Probationary workers cannot be dismissed except for failure to qualify, just cause or authorized cause. In any of these cases, procedural due process required should likewise be observed to avoid payment of indemnity.

Thus, if the cause for dismissal is due to the failure to meet the standards of the employer, the probationary employee should be served a written notice within a reasonable time from the effective date of termination.

Can the employer argue that although it did not give notice to the employee the defect is cured by the consultation or conference?

In the case of Pepsi-cola Bottling Co., et al. vs. NLRC, et al., the Supreme Court ruled in the negative. According to the court, the consultations or conferences are not a substitute for the actual observance of notice and hearing.

Likewise, preventive suspension and investigation do not replace the two-notice requirement of due process. Such defect cannot even be cured by the hearings conducted in the NLRC. The employer is mandated to furnish the employee sought to be dismissed two notices, the written charge, and the notice of dismissal, if, after hearing, dismissal is warranted.

Employer’s prior consultation with the labor union for the dismissal of an affiliated employee is not likewise sufficient compliance with the due process. Such consultation or consent is not a substitute for actual observance of those rights of the employee.

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In a case where the company is organized (unionized) and the CBA provides for a union security clause, expulsion from the union still requires compliance with procedural due process before an employee can be dismissed by the company. Having security clause in the CBA ordinarily means an employee may be dismissed if he ceases to be affiliated with the union. There should be no automatic termination from the company upon expulsion from the union. The expelled member should be given a chance to explain his side.