Protocols of due process before firing employees

The problem with some employers in this country is that they don’t respect labor law, especially the need to comply with due process. They want to fire people on the spot and they want it done yesterday. They are always prone to cut corners, disregarding the stringent procedural requirements of due process, and then they blame the HR and the lawyers if they lose their cases.

This isn’t America where capitalists are supreme. Up there, the boss would just say: "You’re fired" and forthwith you need to pack up and you will be escorted by guards to the elevator or the gate. Here, due process can take months because our laws are so protective of the security of tenure. Enshrined in our Constitution is the right to job security because the socio-economic realities in this country are such that companies need to be compelled by law to retain people even against the will of the company owners. In the US, it’s the law of supply and demand that’s paramount. It is the land of free enterprise and laissez-faire. Here it’s the law of social justice and police power as well as security of tenure that are primordial.

Therefore employers must act within the bounds of law. The law demands that even if you catch your employee stealing property or money, you need to issue him a written notice of specific charge (not a notice to explain as usually done by incompetent HR or hardheaded direct superior) under paragraph b of Article 292, formerly Article 277. In the notice, the employer must put in details the elements of the charges being leveled. You cannot issue a verbal notice; it should be in writing and must be specific. You cannot just say that you accuse him of stealing, you need to specify what was stolen, its value, when it happened, where, and how. You cannot issue a general accusation; it must specify the acts or the series of acts.

Then you need to give the employee at the very least five calendar days within which to answer in writing. You cannot rush him because he has the right to be specifically informed of the nature of the charges against him. He has the right to study and prepare for his defense, consult his lawyers. Then you need to schedule an actual face-to-face admin investigation where the employee charged has the right to appear and face his accusers and he can even bring a lawyer or a friend to assist him but the lawyer cannot ask questions or cross-examine the HR manager or the other members of the management panel. He is only there to advise his client. The employee being investigated can also present his own witnesses and his own evidence.

By the way, while the administrative due process is ongoing, the employee may be placed under preventive suspension but only when his continued presence in the company premises poses a grave and imminent danger to the life or the property of the employer. The evil sought to be avoided by suspending him is he might tamper the evidence, threaten the witnesses, or resume his hostilities against his enemies if the case involved a physical fight. The preventive suspension, which should not exceed 30 days, is subject to the rule of "No Work, No Pay" when the employee is found not guilty. Lastly, the employee is entitled to receive a written decision on his case. Management needs to write the factual and legal basis for its decision, guilty or not guilty. If guilty of a serious offense, his employment may be terminated.

Of course, the employee has the right to question the validity of his employment termination by filing a case of illegal dismissal in the NLRC. If he wins, he should be reinstated and paid full backwages and, if deserving, he can be granted moral damages, exemplary damages, attorney's fees, and even legal interests of all his monetary awards.

Due process is that rule of law that hears before it condemns and proceeds upon a fair inquiry before it renders any judgment. Prejudice is the mortal enemy of due process because it condemns before it can hear. Many cases are lost because by recklessness or by imprudence, or by malice or bad faith, some employers have ignored due process. They are always in a hurry to lose their case. And the lawyers cannot stop them if they want to commit a procedural and legal "hara kiri".