IN THE face of extra-judicial killings many people are loudly protesting against the government’s violation of human rights. But let’s be consistent. Rights aren’t just for the government to observe. Private institutions are also duty-bound to observe and implement due process of law especially to its workers.
Due process is a constitutional right. The Bill of Rights clearly provides that “no person shall be deprived of life, liberty, or property without due process of law” (III, 1). This is the same right enjoyed by workers who, in their workplace, have security of tenure.
Justice Antonio Carpio in his separate concurring opinion in the case Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation, Inc. argues that protected property in the first section of the Bill of Rights includes the right to work and the right to earn a living. Carpio cites MM Promotion and Management, Inc. v. Court of Appeals, which further elaborates the matter:
“Profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong.”
Precisely, terminating or even suspending an employee cannot be automatic. Under ordinary circumstances, doing so is practically a deprivation of a person’s right to property without due process of law. Basically, due process in labor constitutes the inseparable aspects of due process: substantive and procedural.
Substantive due process in a layman’s term means that there is a valid reason for the dismissal or termination of the employee. The Labor Code, as amended, in Article 297 (formerly 282) provides that an employee may be terminated based on a “just cause.” Among others, this includes but not limited to: (a) serious or misconduct, (b) insubordination, and (c) gross and habitual neglect by the employee of his duties.
Article 298 (formerly 283) of the Labor Code identifies another valid ground for termination: “authorized causes.” This includes among others: redundancy and retrenchment, i.e. the need to reduce costs or expenditure in the company to prevent losses. There is another valid ground for termination, i.e. “allowable cause.” This is provided in Article 299 (formerly 284) of the same Code. Employees who are suffering from an illness that cannot be cured within the next six (6) months may be terminated on the basis of an allowable cause.
However, the company or employer cannot terminate an employee merely on the grounds of substantive reasons or basis. It is imperative that the procedural aspect of due process be observed. This means compliance of the legally prescribed procedure or manner of communicating the decision to terminate the contract between employer and employee. In 2007, the Supreme Court says in Metro Eye Security, Inc. v. Salsona: “Not only must the dismissal be for a valid or authorized cause as provided by law, but the rudimentary requirements of due process, basic to which are that an opportunity to be heard and to defend oneself must be observed before an employee may be dismissed.”
The employer therefore should serve two notices for a dismissal (or any sanction) to be valid. In the case of Manly Express v. Payong, the Supreme Court, again, reminds that procedural due process involves: (1) apprising the employee of the particular acts or omissions for which his dismissal is sought, and (2) informing the employee of the employer’s decision to dismiss him.
Moreover, the Supreme Court in the same case clearly says that “[t] he first notice must state that dismissal is sought for the act or omission charged against the employee, otherwise, the notice cannot be considered sufficient compliance with the rules.” Furthermore, the employee should be given at least five (5) calendar days to reply from receipt of the first notice (DOLE Department Order 147, s. 2015).
Filipino parochial culture is deeply ingrained in many companies. There is a tendency among employees to feel bad whenever they would get a notice to explain. For them they have been judged already. This feeling or view is a symptom of ignorance or lack of appreciation of basic norms in labor. Many employees do not understand how essential a notice is in the entire continuum of a person’s right to due process.
Hopefully, employees would realize that they should be thankful whenever the employer would ask them to explain their side. It means that unlike the current administration, the employer respects the rights of employees, and that there is no need to recourse to extrajudicial measures in terminating the employment.