As a general rule, an administrative hearing or conference should be held to give the terminated worker the necessary due process to defend him or her.
All employees enjoy the security of seniority. However, this is limited to non-regular employees. These employees are temporary, casual, project, seasonal, and interns. The reason for the temporary limitation is that the termination of the employment relationship depends on the duration of the contract, the type of temporary contract, the completion of the project or the end of the season.
However, if the employment contract of these temporary workers is terminated before the occurrence of the event or the arrival of a certain date, the employer must ensure that there is a legitimate cause for the termination, which is just cause or just cause.
The hearing/conference requirement must always be observed in the event of dismissal for just cause. The principle behind the firing of workers is that, before firing a worker, the employer must consider two aspects of due process:
- due process noun
- procedural procedure
The substantive aspect refers to the aforementioned legal basis. You must answer the question why the employee is being fired. For example, it is because the employee has committed a fault, such as theft of company property, falsification of documents, gross and habitual negligence of his duties, etc. Another legal reason is that the employer's terms and conditions have changed, such as: B. Large economic losses, excess position, lack of order, shortage of raw material, closure (partial or permanent), etc.
The procedural procedure must answer the question of how. The employer must send at least 2 (two) notices:
- Explanatory note (NDE) and
- resignation letter
In certain cases, the employer must hold an administrative hearing or conference. So the steps would be:
Step 1: Issue NDE
Step 2: Hold an organizational hearing or conference
Step 3: Evaluate the evidence and testimonials
Step 4: Issue notice of termination
On the other hand, the omnibus rules that apply the Labor Code provide for the holding of a hearing and a conference in which the worker is given the opportunity to respond to the accusation, present his evidence or refute the evidence presented against him.
Under the terms of the Labor Code, a hearing or conference is held in which the concerned worker, with the help of a lawyer if he wishes, has the opportunity to respond to the accusation, present his evidence or refute the evidence. filed against you. .
The implementing regulations provide for a hearing and a conference. While the Labor Code seems optional. Which should be followed? Is the hearing (or conference) mandatory in cases of dismissal of employees? Can the apparent conflict between the law and your IRR be resolved?
The Supreme Court ruled that, in case of conflict, the law prevails over the administrative regulations that develop it. The competence to issue development regulations derives from the Law itself. To be valid, a norm or regulation must comply with and be compatible with the provisions of the Enabling Law. As such, you cannot change the law, either by narrowing or broadening its scope.(Perez vs. Philippine Telephone and Telegraph, GR Nr. 152048, 7 de abril de 2009)
A hearing means that a party must be given the opportunity to present their evidence in support of their version of the case and that evidence must be considered in deciding the dispute. (Gonzales v. Commission on Elections, GR No. 52789, December 19, 1980, 101 SCRA 752 citingresistance against Labor Relations Court)
"Being heard" does not mean just a verbal argument, as someone can be heard just as effectively through written statements, presentations, or petitions. Therefore, while the phrase "reasonable opportunity for a hearing" may include an actual hearing, it is not limited to just a formal hearing. In other words, the presence of an actual and formal “trial” hearing, while preferable, is not essential to fulfilling the employee's right to be heard.
The Labor Code, of course, does not require any formal or judicial procedure before an offending worker can be fired.
emBus Workers Union vs. NLRC (353 Phil. 419 (1998)), the Supreme Court ruled that the dual notice and hearing requirements constitute essential elements of due process. Due process of law simply means that there is an opportunity to be heard before a judgment is entered. In fact, there is no violation of due process, even if a hearing was not held where the party had an opportunity to explain their side of the dispute. What is frowned upon is denying the opportunity to be heard.
A formal oral hearing is not even required for due process. It is sufficient that the parties have a fair and reasonable opportunity to explain their respective side of the dispute and provide supporting evidence on which a fair decision can be based. This type of hearing is not mandatory even for claims before the Labor Arbitrator.
According to the Supreme Court, upon receipt of the initial notice informing him of the charges against him, the worker may submit a written statement (which may be in the form of a letter, memorandum, affidavit, or position paper) and proof thereof. produce, such as relevant company records (such as your 201 file and time-of-day records) and testimony from your witnesses. To do this, he can prepare his statement himself or with the help of a representative or legal advisor. He can also ask the employer to provide him with a copy of the documentary material in his defense. His written statement may also include a request for a formal hearing or conference. A formal hearing or conference is required in such a case, as well as when there are significant evidentiary disputes or when company policy or practice requires an actual hearing as part of a notice of termination proceeding.
In summary, the following are the guiding principles regarding the requirement of a hearing in cases of dismissal based on the decision of the Supreme Court in the case ofperez:
(a) "reasonable opportunity to be heard" means any reasonable opportunity (oral or written) given to an employee to respond to the allegations against him and present evidence in support of his defense, whether at a hearing, conference, or any other means in just cause and reasonable manner.
(b) A formal hearing or conference becomes mandatory only if the employee requests it in writing, or if there is a material conflict of evidence, or if company rule or practice requires it, or similar circumstances justify it.
(c) the “reasonable opportunity for consultation” standard in the Labor Code takes precedence over the “consultation or conference” requirement in the applicable rules and regulations.
Obtain a copy of the renumbered and updatedEdition of the Labor Code 2018
The doctrine in Pérez was repeated in the fall of 2017Maula vs. Ximex Delivery Express, Inc. (G.R. No. 207838, January 25, 2017).
Assuming the employee has opted for a hearing or conference by requesting it in writing, or if company policy requires one, what is the employer to do?
The employer must prepare:
- Hearing/Conference Announcement
- attendance list and
- conference proceedings
The invitation to the hearing/conference informs the employee of the place, date and time of the hearing/conference.
Example of a hearing or conference announcement:(Related toVon Atti. Villanueva, S. 101-1 33-34)
Form #13 Invitation to a Hearing/Conference - Falsification of Attendance Records
It is: paralysis P. CADOR
This refers to the charge of falsifying the attendance record against you. We send you a written notice of clarification within five (5) days of receipt.
You sent your reply which we received on _________. Management has decided to hold a hearing/conference on this matter. Therefore, you are invited to attend the hearing/conference at ____________ 28th Floor Mataas Bldg., Ayala Ave., Makati City at 9:00 am.
You can bring your advisor or companion. Your failure to attend such hearing will constitute a waiver by you of due process.
Please be guided accordingly.
The attendance list must contain the name of the participant, position (attorney, relative, support person, human resources, auditor, etc.), signature, date, time, place, position (Hearing/Conference for XXX) and the fact of that is recorded on tape or video/CCTV). It may also include the signature of the person who created it and witnesses to its creation, if any.
Example attendance list:
HEARING/CONFERENCE FOR JOHN CENA NIBAN
_____ August 2018
(Recorded procedure; video surveillance available)
name capacity signature
- Employee of John Cena Niban ________________________
- Anne Tindi Personal Leader ________________________
- Maio P. Agtingin Immed. Superior ________________________
- Xi'an Tu Hundred internal review ________________________
- Nessa Pian Assistant personal ____________________
- Maca So lawyer advice to Niban ________________________
- ______________ _____________ __________
- ______________ _____________ __________