Due process in labor cases
dismissal.”
Question:
Dear PAO,
I was a manager of a retail bookstore in Cebu City for almost seven
years. One day, an audit team came to my branch and discovered
that our weekly petty cash had a substantial deficiency of about
P350,000.00. After two days of investigation, our company
regional supervisor talked to me and Jenna, the cashier of my
branch, and told us that our employments were terminated
effective immediately, because the investigating team discovered
that we were supposedly in cahoots in using the petty cash and
covering it up with the sales of the store the following week.
Distraught and shocked, I was not able to object because I was very
afraid of being jailed. The company did not press criminal charges
against me, but I was left without work for almost 11 months
already. It just recently dawned on me that it is possible that there
was no actual deficiency, but that our regional supervisor just
wanted us out. Was our termination even valid? Can we still
question the termination of our employment and seek
compensation for the time lost?
Corrie
Answer:
Dear Corrie,
Yes, you may definitely question the validity and/or legality of your
termination and file money claims against your previous employer.
It must first be emphasized that under Article 291 of the Labor
Code “[a]ll money claims arising from employer-employee
relations accruing during the effectivity of the [Labor] Code shall
be filed within three (3) years from the time the cause of action
accrued.”
Based on your narration, it has only been eleven (11) months since
you were supposedly terminated by your previous employer. Thus,
based on Article 291 of the above-mentioned law, you may still
bring an action for money claims against your employer.
Moreover, it is clearly relevant to state that your right to procedural
due process was also violated when you were terminated abruptly
and without being informed of the charge against you, and without
any opportunity to defend yourself.
In the case of Kings of Kings Transport Inc., et al. vs. Santiago
Mamac (G.R. No. 166208, 29 June 2007; ponente, Associate Justice
Presbitero Velasco Jr.), the Supreme Court held that “[d]ue process
under the Labor Code involves two aspects: first, substantive––
the valid and authorized causes of termination of employment
under the Labor Code; and second, procedural––the manner of
More important, in the same case, the Supreme Court provided for
guidelines in the termination of an employee, thus:
“The first written notice to be served on the employees should
contain the (1) specific causes or grounds for termination against
them, and a (2) directive that the employees are given the
opportunity to submit their written explanation within a
reasonable period.
“Reasonable opportunity” under the Omnibus Rules means every
kind of assistance that management must accord to the
employees to enable them to prepare adequately for their defense.
This should be construed as a period of at least five (5) calendar
days from receipt of the notice to give the employees an
opportunity to study the accusation against them, consult a union
official or lawyer, gather data and evidence, and decide on the
defenses they will raise against the complaint.
Moreover, in order to enable the employees to intelligently
prepare their explanation and defenses, the notice should contain
a detailed narration of the facts and circumstances that will serve
as basis for the charge against the employees. A general
description of the charge will not suffice.
Lastly, the notice should specifically mention which company
rules, if any, are violated and/or which among the grounds under
Article 282 and are being charged against the employees.
Article 282, Labor Code of the Philippines
Termination by employer
An employer may terminate an employment for any of the
following causes:
1. Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work
2. Gross and habitual neglect by the employee of his duties
3. Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative
4. Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representatives
5. Other causes analogous to the foregoing
After serving the first notice, the employers should schedule and
conduct a hearing or conference wherein the employees will be
given the opportunity to: (1) explain and clarify their defenses to
the charge against them; (2) present evidence in support of their
defenses; and (3) rebut the evidence presented against them by
the management.
During the hearing or conference, the employees are given the
chance to defend themselves personally, with the assistance of a
representative or counsel of their choice.
Moreover, this conference or hearing could be used by the parties
as an opportunity to come to an amicable settlement.
After determining that termination of employment is justified, the
employers shall serve the employees a written notice of
termination indicating that: (1) all circumstances involving the
charge against the employees have been considered; and (2)
grounds have been established to justify the severance of their
employment.
Tested against the foregoing, it is readily apparent that your
termination was in no way compliant with the standard required.
In your situation, you were neither given any of the following – a
first written notice informing you of the charges against you, a
hearing or conference or at least an opportunity to defend yourself,
or a written notice of termination after a consideration of your
defenses.
Clearly, the acts of your employer violated your right to procedural
due process for which you may make money claims upon. Thus,
you may still question your termination before the proper
authorities.
We find it necessary to mention that this opinion is solely based on
the facts you have narrated and our appreciation of the same.
Thus, the opinion may vary when the facts are changed or further
elaborated. We hope that we were able to enlighten you on the
matter.
Serious insult by the employer or his representative on the
honor and person of the employee
Question:
Dear PAO,
Can I leave my work without tendering a 30-day notice if my
supervisor is very abusive to me? At first, he used to make
unnecessary remarks whenever I would pass by his way, which
really made me uncomfortable.
Recently, he had been body-shaming me in front of my co-workers
and, since he is a supervisor, no one calls his attention for fear of
putting their jobs on the line. I just want to resign immediately
because I can no longer stand being around him.
My co-workers said I need to wait for 30 days before my resignation
could take effect but I don’t think I can wait any longer. It is so
stressful being at work because of him. Please advise me on this
matter.
Fe
Answer:
Dear Fe,
As a general rule, an employee may, without just cause, put an end
to his employment relationship with his employer by serving a
written notice at least one month in advance. He may be held
liable for damages if he fails to comply with the given period for
tendering his resignation (Article 285 (a), Labor Code of the
Philippines).
An employee, however, may terminate such employee-employer
relationship without the need of serving any notice on the
employer if it is based on any of the following just causes: (1)
Serious insult by the employer or his representative on the honor
and person of the employee; (2) Inhuman and unbearable
treatment accorded the employee by the employer or his
representative; (3) Commission of a crime or offense by the
employer or his representative against the person of the employee
or any of the immediate members of his family; and (4) Other
causes analogous to any of the foregoing.” (Article 285 (b), Id.)
In the situation that you have presented, we submit that you may
terminate your employment by tendering your resignation with
your employer without the need of awaiting the 30-day period,
provided that you can fully explain and/or demonstrate the
seriousness or gravity of the demeanor of your supervisor toward
you, particularly the specific insults and unnecessary remarks he
has made against you, the frequency thereof, the place or
particular instances where these were made and the like. This is
essential if only to protect you, should your employer later on hold
you liable for damages on the assertion that your resignation did
not comply with the one-month notice rule.
Maersk Filipinas Crewing, Inc. et. al. vs. Vestruz
February 18, 2015
G.R. No. 207010
Notes:
(1) Generally, a re-examination of factual findings cannot be done
by the Court acting on a petition for review on certiorari because
the Court is not a trier of facts but reviews only questions of law.
(2) It is well-settled that the burden of proving that the termination
of an employee was for a just or authorized cause lies with the
employer. If the employer fails to meet this burden, the conclusion
would be that the dismissal was unjustified and, therefore, illegal.
(3) In order to discharge this burden, the employer must present
substantial evidence, which is defined as that amount of relevant
evidence which a reasonable mind might accept as adequate to
justify a conclusion; not based on mere surmises or conjectures.
(4) Insubordination, as a just cause for the dismissal of an
employee, necessitates the concurrence of at least two requisites:
(1) the employee’s assailed conduct must have been willful, that is,
characterized by a wrongful and perverse attitude; and (2) the
order violated must have been reasonable, lawful, made known to
the employee, and must pertain to the duties which he had been
engaged to discharge.
(5) In Ranises v. NLRC, which involved a seafarer who was
repatriated to the Philippines for allegedly committing illegal acts
amounting to a breach of trust, as based on a telex dispatch by the
Master of the vessel, the Court impugned and eventually vetoed
the credence given by the NLRC upon the telex, to wit:
 Unfortunately, the veracity of the allegations contained
in the aforecited telex was never proven by respondent
employer.
 Neither was it shown that respondent employer exerted
any effort to even verify the truthfulness of Capt.
Sonoda’s report and establish petitioner’s culpability for
his alleged illegal acts.
 Worse, no other evidence was submitted to corroborate
the charges against petitioner.
(6) In Skippers United Pacific, Inc. v. NLRC, the Court ruled that the
lone evidence offered by the employer to justify the seafarer’s
dismissal, i.e., the telexed Chief Engineer’s Report which contained
the causes for said dismissal, did not suffice to discharge the onus
required of the employer to show that the termination of an
employee’s service was valid.
(7) The same doctrine was enunciated in Pacific Maritime Services,
Inc. v. Ranay, where the Court held that the telefax transmission
purportedly executed and signed by a person on board the vessel
is insufficient evidence to prove the commission of the acts
constituting the grounds for the dismissal of two seafarers, being
uncorroborated evidence.
(8) The Court affirms the finding of the CA that Avestruz was not
accorded procedural due process, there being no compliance with
the provisions of Section 17 of the POEA-SEC as above-cited,
which requires the "two-notice rule."
 As explained in Skippers Pacific, Inc. v. Mira: An erring
seaman is given a written notice of the charge against
him and is afforded an opportunity to explain or defend
himself.
 Should sanctions be imposed, then a written notice of
penalty and the reasons for it shall be furnished the
erring seafarer.
 It is only in the exceptional case of clear and existing
danger to the safety of the crew or vessel that the
required notices are dispensed with; but just the same, a
complete report should be sent to the manning agency,
supported by substantial evidence of the findings.
Section 10
RA 8042, as amended by RA 10022
Migrant Workers and Overseas Filipinos Act of 1995
In case of termination of overseas employment without just, valid
or authorized cause as defined by law or contract, or any
unauthorized deductions from the migrant worker’s salary, the
worker shall be entitled to the full reimbursement of his placement
fee and the deductions made with interest at twelve percent (12%)
per annum, plus his salaries for the unexpired portion of his
employment contract or for three (3) months for every year of the
unexpired term, whichever is less.
Cagayan Capitol College vs. NLRC
September 14, 1990
G.R. Nos. 90010-11
Notes:
(1) Private respondents were probationary teachers
(2) They are covered by the policy instructions issued by the
Department of Labor and Employment (DOLE) that the
probationary employment of professional instructors and teachers
shall be subject to the standards established by the Department of
Education.
Section 63
Revised 2010 Manual of Regulations for Private Schools
A probationary period of not more than 3 years in the case of
school teaching personnel and not more than 6 months for non-
teaching personnel shall be required for employment in all private
schools.
 A school personnel who has successfully undergone the
probationary period herein specified and who is fully-
qualified under the existing rules and standards of the
school shall be considered permanent.
(3) In University of Sto. Tomas vs. National Labor Relations
Commission, this Court in interpreting the foregoing rule, held that
the legal requisites for a teacher to acquire permanent
employment and security of tenure are as follows:
1. Teacher is a full time teacher
2. Teacher must have rendered three (3) consecutive years
of service
3. Such service must have been satisfactory
(4) There is no question that private respondents have been
employed for three (3) consecutive years as teachers at petitioners'
college and on a full-time basis.
 However, they do not automatically become
permanent unless it is shown that their services during
the probationary period were satisfactory.

(5) The contention of respondents that upon termination of the

three-year probationary period the teacher automatically
becomes permanent is not quite correct.
 It must be conditioned on the compliance with the third
requisite that the services of said teacher during the
probationary period was satisfactory.
 The employer is the one who is to set the
standards and determine whether or not the
services of an employee are satisfactory.
 It is the prerogative of an employer to
determine whether or not the said standards
have been complied with.
 In fact, it is the right of the employer to shorten
the probationary period if he is impressed with
the services of the employees.
 This prerogative of a school to provide
standards for its teachers and to determine
whether or not these standards have been met
is in accordance with academic freedom and
constitutional autonomy which give
educational institution the right to choose
who should teach.