Giving Employees a fair chance - Procedural due process in the workplace

Picture this situation: One day after finishing his shift at work, Pedro who is a regular employee suddenly receives an email from his employer informing him that he should stop reporting to the office because of his poor performance and his two consecutive absences earlier in the month. Pedro remembers that he was absent on those days due to severe trangkaso that had affected his work. Feeling bad and frustrated, Pedro contemplates immediately calling his manager to complain.

What should Pedro do?

Pedro’s hypothetical case reflects the anxiety that an employee may feel when faced with the strong arm of an employer. While an employer has the prerogative to discipline its employee based on performance, our labor laws provide protections to a regular employee to ensure that he/she is treated fairly. This is procedural due process.

At first blush, procedural due process sounds like something only lawyers understand. But it is quite simple, as will be explained below.

In case of termination for just cause, like poor performance, procedural due process is the requirement that an employer must [a] first send the employee a Notice to Explain or NTE, [b] give him/her an opportunity to explain; and [c] thereafter send him/her a notice of decision terminating his/her employment.

Notice to Explain

An NTE ensures that an employee knows that the employer is considering terminating him/her.

Under Department of Labor and Employment (DOLE) Department Order No. 147-15, an NTE should contain the following:

• The specific causes or grounds for termination as provided under the Labor Code and company policies, if any;
• Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee; a general description of the charge will not suffice; and
• A directive that the employee is given opportunity to submit a written explanation within a reasonable period.

Note that an NTE does not mean that the employee is terminated.

Opportunity to Explain

After receiving an NTE, the employee must be given an opportunity to explain his case within a reasonable period. Based on jurisprudence, “reasonable period” means at least five (5) calendar days from receipt of the NTE. If the NTE provides for a shorter period, the employee should alert the employer and respectfully assert the five-day period to submit his/her written explanation.

In addition, an employee can request in writing for a formal hearing or conference with the assistance of a representative.

The employee’s written explanation may contain the evidence in support of his/her case, such as messages, emails, pictures, certificates, or statements from other employees.

Notice of Decision

After receiving the written explanation and determining nevertheless that termination of employment is justified, the employer must serve on the employee a written notice of termination. Under DOLE Department Order No. 147-15, the notice must indicate all circumstances involving the charge against the employee have been considered and the grounds have been established to justify the termination.

If the employee does not agree with the Notice of Decision, an employee can seek assistance from the DOLE through the Single Entry Approach (SENA) (https://arms.dole.gov.ph/).

What Should Pedro Do?

Going back to Pedro’s hypothetical case, what should Pedro do? Well, since it seems that he is being terminated by his employer for poor performance, Pedro should request for an NTE and be given an opportunity to explain his side of the story.

Remember that procedural due process is not something complicated. It is a concrete right that every employee can assert against unfair treatment by his/her employer.