Art. 277 [now Art. 294] of the Labor Code provides the manner of termination of employment, thus:

“xxx

Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer.”

Accordingly, the implementing rule of the aforesaid provision states:

SEC. 2. Standards of due process; requirements of notice.––In all cases of termination of employment, the following standards of due process shall be substantially observed:

1. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(c) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employee’s last known address.

To clarify, the following should be considered in terminating the services of employees:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.15 This should be construed as a period of at least five (5) calendar

days from receipt of the notice to give the employees 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. Moreover, in order to enable the employees 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 employees. 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 [now Art. 297] is being charged against the employees.

(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees 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 employees 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.

(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

As to whether or not the company should conduct a hearing or conference prior to dismissal, the Supreme Court held in the case of Perez vs. PT&T (G.R. NO. 152048 : April 7, 2009]), that:

The following are the guiding principles in connection with the hearing requirement in dismissal cases:

(a) “ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way.

(b) 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.

(c) the “ample opportunity to be heard” standard in the Labor Code prevails over the “hearing or conference” requirement in the implementing rules and regulations.

Below is a sample script or guide to follow in conducting a hearing / conference on the part of HR Practitioner or Business Owner (in Filipino). The sample is about a case involving moonlighting:

Preliminaries:

Good morning!

Maraming Salamat sa pagdalo sa hearing/conference na ito. Ang proceeding ay isang conference para kay _______________________________, na sumasailalim sa imbestigasyon hinggil sa moonlighting o pagkakaroon ng ibang employer habang siya ay empleyado ng kompanyang ito.

Ang pagdinig na ito ay pagkakataon sa iniimbestigahan upang lalo pang maipaliwanag ang kanyang panig. Hindi ito korte para magpatagisan ng argumento kundi upang ihayag ang katotohanan. Pinaiiral natin ang respeto sa isa’t-isa.

Panatilihin nating maayos, payapa at matiwasay ang proseso. Kapag nagkaroon ng hindi magandang pangyayari ang proseso ay isususpinde o hindi na itutuloy kung hinihiling ng pagkakataon.

Ayon sa talaan ng attendance sheet, ang mga dumalo sa pagdinig na ito ay sina:

X, who represents HR

Y, who represents the management

Z, who is the employee being charged

AA, is Z’s support person

Ang tanong ay dapat sagutin ng empleyado. Kung ang sagot ay oo dapat banggitin ito at hindi lamang ang pag-tango. Kung hindi ang sagot dapat din banggitin at hindi sapat ang pag-iling lamang.

Bilang panuntunan sa hearing/conference, ang empleyadong iniimbestigahan lamang ang maaring sumagot sa mga tanong. Hindi maaring sumagot ang kanyang support person. Ang support person ay maaring magbigay ng payo sa pribadong paraan subalit hindi siya maaring sumagot ng tanong para sa empleyado.

Hindi maaring magresolba ng anumang objection ang hearing officer. Maari nya lamang isulat ang anumang objections ngunit hindi ito dahilan para hindi sagutin ang tanong.

Ang pagdinig ay naka-rekord at mayroong Minutes na gagawin.

1. Ms. ______________________, makikita sa record na natanggap mo ang NTE noong ____________, 202__, tama ba?

2. Nagsumite ka rin ng iyong written reply, tama ba?

3. Ikaw ay pinagpapaliwanag sa diumano’y pag-moonlighting o pagkakaroon ng iba pang employer maliban sa Company X.

4. Maari mo bang banggitin ang pangalan ng employer na pinasukan mo na pinagsabay mo sa Company X?

5. Kailan ka pa nagsimula sa kompanya na ‘yan? Alam ba ng may-ari na ikaw ay may trabaho sa Company X?

6. Anong araw ang pasok mo sa employer na yan at anong oras?

7. Mga Gaano karami ang inaasikaso mong Kliyente sa Competitor, Inc. sa isang araw?

8. Hanggang sa pagakakataong ito nanatili ka bang namamasukan sa Competitor, Inc. na ‘yan?

9. Ano ang iyong ginagawa o function sa Competitor, Inc.?

10. May naghimok ba sa ‘yo na pumasok sa Competitor, Inc. kasabay ng employment mo sa Company X? Kung meron, sino?

11. Hanggang kelan mo balak na mamamasukan sa Competitor, Inc.?

Iyon lamang ang mga katanungan.

Ang lupon na ito ay susumite ng report sa pamunuan hinggil sa resulta ng pagdinig. Walang kapangyarihan ang lupon na ito upang magbigay ng pagpapasya. Ang rekomendasyon ay isusumite upang pag-aralan ng pamunuan.

Kung mayroon ka pang nais isumite, binibigyan ka ng hanggang tatlong araw para ibigay sa HR.

Muli, maraming Salamat at magandang araw.

See here the procedure to observe when the employee refuses to receive employer’s notice.

In addition, the company should send another copy by registered mail and keep the registry receipt for future reference.

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

During the hearing or conference, the employees 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.

It is better if before the hearing, the employee should be apprised in writing of the conference stating the time, date, place and the fact that he could bring along his counsel or support person if he so desires.

What if despite such notice the employee refused or did not attend the hearing/conference? Does that mean failure to accord hearing?

No, since the employee was already given an opportunity to such hearing/conference by sending an invitation to him. If he refused to participate despite due notice, that is not the fault of the employer. It

is best practice for employers to have an attendance sheet or record of such meeting showing the persons who are supposed to attend with their signature beside their name.

It would appear that in such attendance record the space corresponding the name of the employee who failed or refused to participate despite due notice would bear no signature. This can be used as evidence to prove that ample opportunity was given to the worker. It is not required that an actual hearing should occur as long as ample opportunity was given.

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 reconsideration of the action or ruling complained of.

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

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

In a regular trial court procedure, the parties present evidence in the manner provided by the Rules of Court, except in certain instances where these requirements are not mandatory. The parties are subjected to direct, cross, re-direct and re-cross examinations. The technical rules of evidence apply in regular procedure but not strictly in labor cases, subject to certain exceptions.

All the more that such kind of court jostle does not govern the hearing or conference initiated by the employer for the dismissal of the employee.

Notice and hearing in termination cases do not connote full adversarial proceedings as elucidated in numerous cases decided by the court. 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.

In the case of IBM Philippines, Inc. vs. NLRC, the Court held that ample opportunity means every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense.