Dear PAO,
I own a small laundry shop here in the Metro. I only have two employees—one of whom I had to let go last month because of her excessive absences. For context, for the month of January of this year alone, said employee had already incurred 12 absences. This ongoing pattern of unauthorized absenteeism has been disrupting the operation of my business. I decided to send her a text message informing her of her immediate termination from employment, which I now realize is an improper way of dismissing an employee. I just want to know my liabilities as an employer who failed to comply with the proper way of dismissing an employee. Thank you.
Visor
Dear Visor,
Indeed, an employer cannot be compelled to retain the services of an employee whose actions are patently inimical to the interest of the company. As a measure of protection, our laws have reserved to the employer the right to dismiss its employees. After all, “the constitutional policy to provide full protection to labor is not meant to be a sword to oppress employers.” (DOLE Philippines, Inc. vs. National Labor Relations Commission, et al., G.R. No. L-55413, July 25, 1983, Ponente: Chief Justice Ramon C. Aquino)
However, the right to dismiss an erring employee, as with a host of other rights and responsibilities, is not absolute and is subject to certain limitations. Specifically, the right requires the observance of the two-fold due process—the substantive and procedural due processes. The substantive due process requires that the dismissal be pursuant to either just or an authorized cause under Articles 297, 298 or 299 of the Labor Code of the Philippines.
Meanwhile, the procedural due process, as embodied in the Omnibus Rules Implementing the Labor Code, and amended by the Department of Labor and Employment (DOLE) Department Order No. 147, Series of 2015, outlines the guiding principles for the proper termination of employees under our jurisdiction. It requires the employer to furnish the employee sought to be terminated two written notices. The first notice contains the specific cause or ground for termination, detailed narration of facts, and directive to submit a written explanation within a reasonable time, followed by a notice of termination after a determination that the termination is justified. The foregoing notices shall be served personally to the employee or to the employee’s last known address. (Section 5.1., DOLE Department Order No. 147, Series of 2015)
If the dismissal failed to comply with both substantive and procedural due process requirements, then a finding of illegal dismissal shall be in order. However, in case the dismissal is for a just cause, but the employer patently fails to observe procedural due process, the dismissal will neither be nullified nor rendered illegal or ineffectual.
In Jenny M. Agabon and Virgilio C. Agabon vs. National Labor Relations Commission, (G.R. No. 158693, November 17, 2004) the Supreme Court, speaking through Associate Justice Consuelo Ynares-Santiago elucidated that a violation to an employee’s right to statutory due process warrants the payment of indemnity in the form of nominal damages. The high court believed that “this form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.”
From your narration of facts, there can be no doubt that the procedural due process requirements had not been complied with when you terminated the services of your employee through a text message. If it can be proven that your employee’s frequent absenteeism amounted to gross and habitual neglect of duty — a valid cause for dismissal, then the same shall be upheld. However, your failure to observe the procedural due process requirements may still subject you to the payment of indemnity in the form of nominal damages, the amount of which shall be left to the sound discretion of the court.
We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
