Substantive due process as the phrase connotes as whether the government has an adequate reason for taking away a

person’s life, Liberty or property. In other words substantive due process looks to whether there is sufficient
justification for the government's action; whether there is an existing valid governmental purpose for the
deprivation of life, liberty or property.

Procedural due process on the other hand requires that the government hears before it condemns or proceeds
upon inquiry and renders judgment only after trial. It contemplates notice and opportunity to be heard before
judgment is rendered affecting one's person or property.

We have discussed the right to security of tenure before. As we have learned according to article 294, the right to Security of
Tenure is the right not to be dismissed from work except for authorized or just cause. Also if an employee is
unjustly dismissed, he or she should be reinstated and paid back wages.

The first aspect of the right to security of tenure that requires a just or authorized cause for dismissal should resonate in our
discussion of substantive due process. As applied to employee dismissals, an employee dismissal clearly violates
substantive due process if there is no just or authorized cause defined by the code in articles 297 298 and 299. Absent this just or
authorized causes for termination of employment, depriving an employee his right to work, simply tramples his right not to be
deprived of his property and his right to substantive due process.

Procedural due process: When the labor arbiter finds an employee dismissed for cause without allowing him the right to
adduce position papers and other pleadings in the arbitration proceedings, is the labor arbiter in violation of the due process
clause? Of course.

Must the employee be reinstated to work? Of course. The labor arbiter violated the constitutionally guaranteed
procedural due process rights of the employee. He violated the employee’s opportunity to be heard through position papers and
other pleadings before judgment is rendered.
Situation: when the employee dismissal procedures are violated not by state actors—meaning these are violated by the
employer.

Standards of due process laid out in the Labor Code article 292 of the Labor Code:

- employers must furnish concerned employee whose employment is sought to be terminated, a written notice containing a
statement of the causes for termination and shall afford him ample opportunity to be heard and to defend himself with the
assistance of his representative if he so desires in accordance with company rules and regulations promulgated or by the
guidelines set by the Department of Labor and Employment.

When an employer violates an employee's right to procedural due process as when it dismisses him without an investigation,
without a hearing, as what happened in Callanta, is his constitutional right to due process violated? Thus, should he be
reinstated to work no matter that there may be just or authorized costs warranting his termination from work?
For a long time, before you were born, in the time of callanta, YES was the answer to both questions. But now, no
more.

Wenphil v. NLRC

In Wenphil, the employer failed to give the dismissed employee a formal notice and the investigation required by the Labor
Code. Immediately the employer fired him. The Supreme Court found that there was basis for dismissing the employee as there
was evidence that he was of violent temper, that he caused trouble during office hours, and even defied his superiors as they tried
to pacify him.

The Supreme Court therefore upheld the validity of employee’s dismissal but ordered the employer to indemnify the
dismissed employee for its procedural lapses. The Supreme Court thus pronounced a new rule: where the
employer had a valid reason to dismiss an employee but did not follow the due process requirement the dismissal may be upheld
but the employer will be penalized to pay an indemnity to the employee.

The Supreme Court reaffirmed Wenphil in its ponencia in Agabon v. NLRC. It declared emphatically that where dismissal is
for a just cause as in a Agabon, the lack of statutory due process should not nullify the dismissal or render it
illegal or ineffectual. However the employer should indemnify the employee for the violation of his statutory
rights.

In Agabon, the concerned employees, Virgilio and Jenny, were dismissed for abandonment of work. The labor arbiter found that
they were illegally dismissed but the NLRC and the Court of Appeals found they really abandoned their work. The Supreme
Court upheld their dismissal because it was established that really they abandoned their jobs to work for another company.

The employer did not follow the notice requirement, however argued that it followed all these requirements and instead argued
that sending to the last known addresses of the concerned employees would have been useless because they did not reside there
anymore.

Unfortunately for the employer, this was not a valid excuse because the law mandates that the twin notice requirements should be
sent to the employee's last known address. The Supreme Court held the employer liable for non- compliance with
the procedural requirements of due process.

In this case the Supreme Court re-examined the so-called Serrano doctrine. Which held that the dismissal in violation of
the due process is to be deemed ineffectual. This Serrano replaced the Wenphil doctrine which upheld dismissal
when there is just or unauthorized causes, where there is a violation of the due process.

The SC in reversing Serrano said the Serrano doctrine would encourage frivolous suits where even the most notorious employees
would be rewarded by invoking DP clause. In the reexamination of the doctrine, the SC distinguished between constitutional due
process which protects the individual from the government and assures him of his rights in criminal civil or admin proceedings.

Distinguished these from statutory DP found in the LC and the IRR which protects EE from being unjustly terminated without
notice and hearing.

In the end, the SC reverted to Wenphil. Where the dismissal is for a just cause, the lack of statutory due process should not
render dismissal illegal or ineffectual but the employer must indemnify the employee for violation of his statutory rights.
Agabon v. NLRC

In Agabon, the SC had a nuanced view of violations of the due process guarantee of the constitution depending on who the
violator is.
SC: An employer’s violation of procedural due process in dismissal, is deemed just a violation of the statutory due process and
not of the constitutional guarantee of due process. The due process clause of the constitution is deemed violated ONLY in the
case of state actions.

Take note that the SC was divided SC when it ruled on Agabon. There were some dissenting opinions filed in Agabon. The
dissenters argued that violations of the procedural DP standards by an employer should make the dismissal illegal as this violated
the constitutional DP clause guarantee. They argued that the SC had long held that violation of due process in dismissals by an
employer violates the constitution.

They also argued that the traditional view that only state actions are restricted by the due process clause is a passe already. They
also argued that the social justice provision and protection to labor provisions of the constitution really militates against deeming
violations of due process in dismissals to be just violations of the statutory due process.

So the rule now is well settled: Wenphil and Agabon is the controlling rule.