Sufficient notice

If dismissal is for a just cause, the employer must give the employee two written notices: the first notice to inform the employee of the employer’s intent to dismiss and the particular acts or omissions for which dismissal is sought; the second notice to inform the employee of the employer’s decision to dismiss. This is part of the due process requirement of notice and hearing. What constitutes the "notice" required by this rule? This is answered in this case of Mercy and Mario

Mercy and Mario were employees of a multinational pharmaceutical company. By the nature of their jobs and as incentive schemes, they were among the employees provided with company vehicles. This employee benefits led to the filing of the case by Mercy and Mario.

Mercy and Mario were officers of a Union (NEW-DFA) which sought certification as the exclusive collective bargaining agent of the rank and file employees in the company. In the certification election NEW-DFA failed to obtain the required majority vote. Despite its election protest ascribing to the company several acts of manipulation, intimidation and interference, the Med-Arbiter dismissed the election protest and upheld the results of the election.

In the meantime the company adopted a new car allocation policy where the assignment of company vehicles would be based on the sales performance of the employees. Under this new policy the vehicles assigned to Mercy and Mario would be re-allocated. So a memorandum was sent to Mercy advising her that she would have to surrender her company vehicle. Mercy refused. Her request for reconsideration was also denied. So her counsel wrote the company asking that the withdrawal of her car be held in abeyance. The company rejected her petition and instead sent her another memorandum instructing her to return the car on December 7, 1990. The following day Mercy reiterated her plea for the suspension of the withdrawal. But on December 17, 1990, the company sent her a final warning that if she would not return the car she would be charged for insubordination and she would be dismissed. Finally on December 20, 1990, because of Mercy’s staunch refusal, she was cited and at the same time terminated for gross insubordination.

Mario was likewise dismissed on December 5, 1990 after his refusal to comply with the several notices sent by the company. When his counsel sought for reconsideration, his dismissal was commuted to 30 days suspension.

Nevertheless both Mercy and Mario sued the company for illegal dismissal and illegal suspension. They claimed that the company’s actions failed to comply with procedural due process mandated by the Labor Code. They contended that they were not given the two-notice requirement and was not accorded the benefit of a proper charge, an opportunity to defend themselves and a formal investigation. Were they correct?

No. Mercy’s dismissal and Mario’s suspension were undeniably based on a just cause under Article 282 of the Labor Code. If the dismissal (or suspension) is based on a just cause the employer must give the employee (1) two written notices and (2) a hearing or at least an opportunity to be heard. In the present case the company sent Mercy and Mario a total of three memoranda stating that their stubborn refusal to comply with the company car policy and to surrender their cars constituted gross insubordination for which they could be dismissed. To each memo they were able to reply and explain with the aid of counsel why they had refused to comply and in effect why they should not be dismissed.

Only substantial, rather than strict literal compliance with the procedural rules on due process is necessary. On this basis, the memoranda sent to Mercy and Mario may be deemed to have sufficiently conformed to the first notice requirement informing them of the particular acts for which their dismissal is sought. This may be loosely considered as the proper charge. In fact, not only were Mario and Mercy duly informed of the particular acts for which their dismissal was sought; they were also able to defend themselves and to respond to the charges with the assistance of counsel of their own choosing. The second is the notice informing the employee of the employer’s decision to dismiss him. In making this decision, there is no necessity of an actual hearing. They must only be given adequate opportunity to be heard which in fact they did as they were able to explain their side and their explanations were taken into consideration in arriving at a decision (Glaxo Wellcome etc. vs. Nagkakaisang Empleado ng Wellcome , G.R. 149349, March 11, 2005. 453 SCRA 256)

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