Termination of Employment Word

, civil, or criminal. [Salaw v. NLRC, G.R. No. 90786, September 27, 1991] (2) Procedural due process: The employee must be afforded an opportunity to be heard and defend himself. [Fujitsu Computer Products Corporation of the Phil. v. Court of Appeals, G.R. No. 158232, March 31, 2005] MEANING OF OPPORTUNITY TO BE HEARD  "Ample opportunity to be heard" means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way. What kind of evidence to support his defense? o Substantial evidence is required and it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . o Proof Beyond Reasonable Doubt is Not Required.  In employee dismissal cases, the essence of due process is simply an opportunity to be heard; it is the denial of this opportunity that constitutes violation of due process of law. [Technol Eight Philippines Corporation v. NLRC, G.R. No. 187605, April 13, 2010] WHEN HEARING IS NOT REQUIRED? - No hearing is needed if the employee has admitted his guilt. -

But there must be admission of guilt.

-

If the employee merely narrated and explained what he did, without admitting his guilt, then conducting a hearing is required; otherwise, there is a failure of due process.

PREVENTIVE SUSPENSION  -is a disciplinary measure for the protection of the company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee.

 The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.  However, when it is determined that there is no sufficient basis to justify an employee's preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension. [Gatbonton v. NLRC, G.R. No. 146779, January 23, 2006]  Preventive suspension is justified where the employee's continued employment poses a serious and imminent threat to the life or property of the employer or of the employee's co-workers. Without this kind of threat, preventive suspension is not proper. [Artificio v. NLRC, G.R. No. 172988, July 26, 2010] The code implementing rules provide that no preventive suspension shall last longer than thirty (30) days. After that period the employer shall reinstate the worker in his former position of suspension , provided that during the period of suspension, he pays the wages and other benefits due to the worker . Otherwise beyond this maximum period amounts to CONSTRUCTIVE DISMISSAL. CONSTRUCTIVE DISMISSAL is cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or diminution in pay or both; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee. The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his position under the circumstances. The law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. In fact, the employee who is constructively dismissed may be allowed to keep on coming to work. [McMer Corp., Inc. v. NLRC, G.R. No. 193421, June 4, 2014]

Situation Validity of Dismissal Just or Authorized Cause + Due Process Valid authorized cause No Just or Authorized Cause + Due Process separation pay.

Liability of ER No liability. Separation pay only in

Invalid

Reinstatement or If reinstatement not possible,

+ full backwages No Just or Authorized Cause + No Due Process pay.

Invalid

Reinstatement or separation If reinstatement not possible, +

full backwages Just or Authorized Cause + No Due Process procedural infirmity.

Valid

Liable for damages due to Separation pay if for

authorized cause Non-Compliance with Due Process Requirements Before the Agabon case, the doctrine in Serrano v. NLRC was followed. It states that termination due to authorized cause without giving the notice required

under the Labor Code is not a violation of due process. It is valid although declared irregular/ineffectual. He shall however be entitled to SEPARATION PAY AND BACKWAGES AGABON V. NLRC 17 November 2004 Modifies SERRANO Case. Dismissal for a an authorized or just cause, without procedural due process is not an illegal dismissal which warrants backwages; employee entitled only to nominal damages. The Court interpreted Art. 279 to the effect that termination is illegal only if it is not for any of the justified or authorizes causes provided by law. Payment of backwages and other benefits, including reinstatement, is justified only if the employee was unjustly dismissed. The Court decided to follow WENPHIL CORP. v. NLRC that where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal or render it illegal. However, the employer should indemnify the employee for the violation of his rights. The indemnity should be stiffer than that provided in WENPHIL to discourage the practice of “dismiss now pay later”. The indemnity should be in the form of nominal damages, which is adjudicated in order that a right of plaintiff, which has been violated by the defendant, may be vindicated.