In line with the management prerogative, the employer is allowed to terminate the services of the employee provided that substantive and procedure due process are observed.[1]

Substantive due process is complied with once the grounds are established to justify a disciplinary action. On the other hand, procedural due process is complied with once the required processes under the law are observed.

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Insights: In other countries, employment is at-will or at the discretion of the employer. Simply put, the employer may terminate or “fire” an employee on the spot. In the Philippines, employment is a property right protected by the constitution no less. Thus, an employer in the country cannot easily terminate an employee. Substantive and procedural due processes have to be observed. Otherwise, the employer may be held liable for illegal dismissal.

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Substantive due process

Pursuant to the constitutional right to security of tenure, the employer cannot terminate the services of a regular employee except for: (a) just cause; (b) authorized cause; or (c) in case of probationary employees, when he fails to qualify as a regular employee.[2] There is substantive due process when termination is based on either of the cited grounds.

These are the just causes by which an employer may terminate the services of an employee:

  • Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;[3]
  • Gross and habitual neglect by the employee of his duties;[4]
  • Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;[5]
  • Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives;[6] and
  • Other causes analogous to the foregoing.[7]

Yrasuegi v. Philippine Airlines, Inc.
G.R. No. 168081, 17 October 2008

Complainant Armando G. Yrasuegi initiated a labor complaint for illegal dismissal against Philippine Airlines, Inc. (PAL). Previously, complainant was employed as an international flight steward by the airline. For 4 years, PAL had repeatedly advised him to comply with the Cabin and Crew Administration Manual wherein the prescribed weight for his height and body structure was 166 pounds. He weighed 209 pounds and it steadily increased till his last weigh in at 219 pounds. After observing due process, the company terminated the employment of complainant.

HELD: The employee was not illegally dismissed. “A reading of the weight standards of PAL would lead to no other conclusion than that they constitute a continuing qualification of an employee in order to keep the job.  Tersely put, an employee may be dismissed the moment he is unable to comply with his ideal weight as prescribed by the weight standards.  The dismissal of the employee would thus fall under Article 282(e) of the Labor Code”, which provides for “other causes analogous to the foregoing.”

The weight standards were not mere orders from the employer. They were in fact “prescribed weights” required of a cabin crew “in order to qualify for and keep his or her position in the company.” Otherwise stated, they were “continuing qualifications” for an employee’s position.

BFOQ defense. – “Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job.  The qualification is called a bona fide occupational qualification (BFOQ). In the United States, there are a few federal and many state job discrimination laws that contain an exception allowing an employer to engage in an otherwise unlawful form of prohibited discrimination when the action is based on a BFOQ necessary to the normal operation of a business or enterprise.” The 1987 Constitution, the Labor Code, and the Magna Carta for Disabled Persons (R.A. 7277) has provisions similar to BFOQ.

To justify a BFOQ, “the employer must prove that (1) the employment qualification is reasonably related to the essential operation of the job involved; and (2) that there is factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job.” Thus, “the test of reasonableness of the company policy is used because it is parallel to BFOQ. It is valid “provided it reflects an inherent quality reasonably necessary for satisfactory job performance.”

In sum, “the primary objective of PAL in the imposition of the weight standards for cabin crew is flight safety.  It cannot be gainsaid that cabin attendants must maintain agility at all times in order to inspire passenger confidence on their ability to care for the passengers when something goes wrong.  It is not farfetched to say that airline companies, just like all common carriers, thrive due to public confidence on their safety records.  People, especially the riding public, expect no less than that airline companies transport their passengers to their respective destinations safely and soundly.  A lesser performance is unacceptable.”

As observed by the Court, the biggest problem with an overweight cabin attendant is “the possibility of impeding passengers from evacuating the aircraft, should the occasion call for it.  The job of a cabin attendant during emergencies is to speedily get the passengers out of the aircraft safely.  Being overweight necessarily impedes mobility.  Indeed, in an emergency situation, seconds are what cabin attendants are dealing with, not minutes.  Three lost seconds can translate into three lost lives.  Evacuation might slow down just because a wide-bodied cabin attendant is blocking the narrow aisles.  These possibilities are not remote.”

Best Legal Practices:

Additional just causes permissible – The employer may add to the list of just causes in the employment contract, CBA, or the company policy. However, the additional just causes for termination must be to such an extent that would justify dismissal. The penalty of dismissal must commensurate to the offense. Thus, minor violations may justify disciplinary actions other than dismissal.

Document repetitive minor violations – Given that minor violations cannot justify immediate dismissal, repeated violations thereof may be documented in order to show that the same falls under serious misconduct or to causes analogous to the just causes.

These are the authorized causes by which an employer may terminate the services of an employee: 

  • Installation of labor-saving devices;[8]
  • Redundancy;[9]
  • Retrenchment;[10]
  • Closure of establishment;[11]
  • Disease of an employee.[12]

To validly terminate an employee based on an authorized cause, the employer has to comply with the following: (a) the employer is required to send a 30-day prior written notice before the intended date thereof to the employee/s and the DOLE;[13] and (b) the employer has to pay the employee a separation pay which amount will vary depending on the ground.

The purpose of requiring an employer to inform the DOLE is in order for the latter to make the necessary investigation as to the legitimacy of the ground. With respect to the separation pay, the termination was brought about by an authorized cause which is not the fault of the employee.

The employer may in good faith suspend operations of a business or undertaking for a period not exceeding six months without pay to the employees.[14] After the suspension period, the employer is required to reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations of his employer.[15]

Procedural Due Process

To comply with the procedural due process, the employer has to follow the rule on twin notice (1st and 2nd notice) and hearing (or the opportunity to be heard) in disciplinary actions. This is the twin notice and hearing rule.[16]

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Insights: In some states in the U.S. where employment is at-will, it is a practice that the terminated employee is given a pink slip which serves as a notice of dismissal. In the Philippines, there is no such pink slip practice as the twin notice and hearing rule has to be complied.

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Step 1: The 1st Written Notice. The 1st Notice must be written specifying the grounds for termination, as well as giving the employee reasonable opportunity within which to explain his side.[17] The reasonable opportunity may be through an administrative hearing or a written explanation within five days from receipt.[18]

Preferably, the 1st Notice must be personally served to the employee with a receiving copy signed and kept by the management, as well as a notarized affidavit of service executed by the one who delivered it.[19] If personal service is impracticable, the notice should be sent via registered mail with return card and by private courier to the employee’s last known address made known to the employer.[20]

Best Legal Practices:

Suspension contained in 1st notice – If the gravity of the offense or violation merits suspension, the employee may be suspended for a period not exceeding 30 days pending the investigation. The purpose of the investigation is to prevent the concerned employee from tampering or destroying evidence against him. The duration of the suspension, as well as its purpose, should be stated on the 1st notice.

Step 2: Hearing or Opportunity to be Heard. The reasonable opportunity to be heard may be through an administrative hearing or by way of a written explanation. If a hearing is scheduled, the employee may be assisted with legal counsel and the former should be given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.[21] 

In case of a written explanation by the employee, the letter will suffice to comply with rule on opportunity to be heard. In labor law, the essence of due process “lies simply in an opportunity to be heard, and not that an actual hearing should always and indispensably be held.”[22] Hence, despite the absence of hearing or conference, the requirement of procedural due process is complied once the employee has been given the opportunity to explain his side of the controversy.[23]

Step 3: The 2nd Written Notice. After affording the employee an opportunity to explain, the employer may proceed with its investigation and decide on the issue. If the result leads to imposing termination as the appropriate penalty, the employer must serve the 2nd Notice on the employee stating therein “that upon due consideration of all the circumstances, grounds have been established to justify his termination.”[24]

As with the 1st Notice, the preferred mode of service is personal with affidavit of service; if impracticable, registered mail with return card and private courier may be done.[25]

Comment or feedback: info@jdpconsulting.ph

References

[1] Id at 331.

[2] Ibid. Article 293 cf. 295; See also Robinsons Galleria/Robinsons Supermarket Corporation, et al., v. Irene R. Sanchez, G.R. No. 177937, 19 January 2011.

[3] LABOR CODE. Article 296 (a).

[4] LABOR CODE. Article 296 (b).

[5] LABOR CODE. Article 296 (c).

[6] LABOR CODE. Article 296 (d).

[7] LABOR CODE. Article 296 (e).

[8] Ibid. Article 297.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid. Article 298.

[13] Ibid.

[14] LABOR CODE. Article 299.

[15] Ibid.

[16] [citation]

[17] IMPLEMENTING RULES OF BOOKS VI OF THE LABOR CODE. Section 2 (i).

[18]  See Philippine Pasay Chung Hua Academy v. Edpan, G.R. No. 168876, 10 February 2009.

[19] RULES OF COURT. Sec. 13, Rule 13. In the 2011 NLRC Rules of Procedures, the Rules of Court apply suppletorily. However, it must be noted that technical rules of procedure are not binding on labor law. Hence, letter sent via private courier may be permissible.

[20] Ibid.

[21] IMPLEMENTING RULES OF BOOK VI OF THE LABOR CODE. Section 2 (ii), Rule I.

[22]  Metropolitan Bank and Trust Company v. Barrientos, G.R. No. 157028, 31 January 2006.

[23]  Philippine Pasay Chung Hua Academy v. Edpan, G.R. No. 168876, 10 February 2009.

[24] IMPLEMENTING RULES OF BOOK VI OF THE LABOR CODE. Section 2 (iii), Rule I.

[25] Id at 352.