Due Process in Labor Law
- Due process implements the constitutional provisions on security of tenure.
- Due process is about complying with the substantive due process and procedural due process.
- Termination of employment is different from separation from employment.
- Termination presupposes there is just cause against an employee.
- Separation from employment presupposes there is an authorized cause for letting go of an employee.
- Procedural due process is different for just cause and authorized cause.
- Non-compliance with due process may result in illegal dismissal.
The legal basis is the P.D. 442, otherwise known as the Labor Code, which implemented the constitutional provision on security of tenure.
“At its core, substantive due process guarantees a right to liberty that cannot be taken away or unduly constricted, except through valid causes provided in the law.
The concepts of procedural and substantive due process had been carried over and applied to illegal dismissal cases, although notably, employers are not governmental bodies to which these rights usually refer. Agabon v. NLRC described the due process required in dismissing employees as statutory – requirements that the law imposes on employers to comply with, in contrast to constitutional due process rights that guarantee against overreach from the government.
Although statutory in nature, the procedural and substantive due process requirements in illegal dismissal cases stem from the protection that the Constitution provides labor – the Constitution has tasked the State to promote the workers’ security of tenure, humane conditions of work, and a living wage. These guarantees, as well as a host of other rights and responsibilities, find implementation through the Labor Code, which fleshed out the concept of security of tenure as the continuance of regular employment until an employee’s services are terminated because of just or authorized causes enumerated in the law.
Thus, despite the differences in origin and application between constitutional due process rights and the statutory requirements in the Labor Code, we have applied concepts implementing constitutional due process rights to the statutory due process requirements of the Labor Code. We did this in the present case, when we emphasized the need for substantial evidence to support the just cause for the employee’s dismissal at the time her services were terminated. In the same way that the crime charged against an accused must first be proven before his or her right to liberty is taken away, or that a government employee’s infraction must first be proven before the accused is deprived of the right to continue to hold office, so too, must just cause against an employee be proven before he or she may be deprived of a means of livelihood. Otherwise, the employee’s right to substantive due process would be violated.” (Brown Madonna Press, Inc. v. Cabangon, G.R. No. 200898, 15 June 2015)
Due process is essentially the observance of substantive due process (i.e. causes/grounds) and procedural due process (i.e. steps/procedure) prior to the termination of employment or separation from employment.
Termination vs. Separation
Termination of employment and separation from employment are two different ways of ending the employment relationship.
Termination of employment presupposes that the employee is at fault or was the cause for his/her being dismissed. That’s why the grounds are called just causes, which include serious misconduct, willful disobedience, gross and habitual neglect of duty, to name a few.
On the other hand, separation form employment presupposes that the employee is not at fault for being separated from service as the same results from a legitimate business reason or due to laws and regulations, which authorize the employer to letting go of the employee. That’s why the grounds are called authorized causes, which include installation of labor-saving devices, redundancy, retrenchment, to name a few.
Substantive due process
Substantive due process essentially refers to the causes or grounds.
For termination, just causes include serious misconduct, willful disobedience, gross and habitual neglect of duty, fraud, loss of trust and confident, commission of a crime, and analogous causes.
For more detailed discussions, refer to Just Causes.
For separation, authorized causes include installation of labor-saving devices, redundancy, retrenchment, closing of a business, disease.
For more detailed discussions, refer to Authorized Causes.
Procedural due process
Procedural due process essentially refers to the steps or procedures.
Just cause procedure
For just cause procedure, the following are the steps:
Step 1: Issuance of 1st Written Notice
Step 2: Observance of Ample Opportunity to Explain
Step 3: Issuance of 2nd Written Notice
For more detailed discussions, refer to Just Cause Procedure.
Authorized cause procedure
For authorized cause procedure, the following are the steps:
Step 1: Issuance of 30-day advance notice to DOLE
Step 2: Issuance of 30-day advance notice to employee
Step 3: Payment of Separation Pay (subject to an exception)
For more detailed discussions, refer to Authorized Cause Procedure.
Consequence for non-observance of due process
Non-observance of due process may result in illegal dismissal.
Illegal dismissal may result in the employer being held liable for full backwages, reinstatement, moral damages, exemplary damages, monetary claims, attorney’s fees.
For more detailed discussions, refer to Illegal Dismissal.
- 1987 Constitution
- Presidential Decree No. 442, a.k.a. Labor Code
- DOLE Department Order No. 147, Series of 2015
- Jurisprudence or Supreme Court Decisions
Lawyer, Author, Mentor