Tuesday, November 25, 2008

Due Process Before Firing or Terminating Employment Due to Just Cause

I received this question Today:

Hi ed,

When my subordinate confessed that he misappropriated our company's fund, i referred the matter to my boss and my boss told me to terminate my subordinate. I served the termination letter without going through the usual process. Am i correct?

Here's my answer:

I think it all depends on where you are practicing your job as a manager or supervisor. Here in the Philippines, where I work, not going through the due process could get you in trouble, especially if you were unable to get written confession or evidence that the person did violate company policies. You can be saved from trouble if the employee does not contest your boss' decision to fire and does not change one's mind about the confession. This is however, no reason to think that what you did was right because the employee can change his mind and contest that decision in a labor forum.

Some managers here in the Philippines, do not care much to follow the process because they get away with it. It's like ignoring the overpass, the traffic light or the crossing lane as one crosses the road and choosing instead to compete with the speeding vehicles. They get away with it several times but they only need one time to get into serious trouble.

Due process in disciplining employees is important. It protects the employees' right and it prevents a company from getting into trouble. The next time you are faced with this kind of situation,I suggest that you go through the process to save yourself and your company from any legal troubles. The Department of labor and Employment in the Philippines shares these information about due process:

What is due process in the context of termination of employment?

Due process means the right of an employee to be notified of the reason for his or her dismissal and, in case of just causes, to be provided the opportunity to defend himself or herself.

What are the components of due process in termination cases?

In a termination for a just cause, due process involves the two-notice rule:

* A notice of intent to dismiss specifying the ground for termination, and giving to said employee reasonable opportunity within which to explain his or her side;

* A hearing or conference where the employee is given opportunity to respond to the charge, present evidence or rebut the evidence presented against him or her;

* A notice of dismissal indicating that upon due consideration of all the circumstances, grounds have been established to justify the termination.
In a termination for an authorized cause, due process means a written notice of dismissal to the employee specifying the grounds given, at least 30 days before the date of termination. A copy of the notice shall be furnished the Regional Office of the Department of Labor and Employment (DOLE).

28 comments:

Amadure said...

Hi Ed,
I have just been terminated form work in an outsourcing company last May 15, 2009 due to AWOL last may 2, and 09, ill just like to elaborate the said AWOL on may 2,actually i went to office may 2, after lunch, so i did a half day that day, regarding the said incident, i been out of office last may 09, because i accompanied our two American clients the night before, i served as a guide for them hang out late and lost track of time, but, what im wondering is, i just received my memo last may 13, 2 days before the said termination day, and nobody even talked to me,my team lead, our project manager nor any of them at the HR dept, my attention was called the afternoon of may 15, and the HR talked to me, and hand me a letter indicating that i am terminated that very same day.
what can you say?
please help me.
Thanks.

Ed Ebreo said...

@Amadure:It looks from your story that your right to due process was violated. If that is the case, I suggest that you go to National Labor Relations Commission in Banawe Quezon City and present your complaint. If you know a lawyer, I recommend that you talk to one. Get them to look into your complaint for merits before you file it. If you don't have a lawyer, I believe you can also get help from NLRC. I hope this helps.

Lost in Frustration said...

Hi Ed! I've already skimmed thru your blog. Great job I should say. I plan to make this short but I want to give you details so you can advice me accordingly.

I am currently working for a small dying company. With business barely surviving, the company president make do with what he has on hand: a handful of few odd workers doing jobs unfit for their capabilities. I was promoted from marketing to takeover the admin/HR left by after the head resigned.

One of the staff reported to me that she could not apply for loan extension because we have no contribution remitted for the last few months. Now this is the job of the accounting staff who makes all the money-related report and handles all the monies of the company. All transactions are in cash: payroll, deductions, advances, allowances, remittances, etc.

Upon investigation I found out that not only did the staff failed to remit loan payments but likewise the contribution to all government agencies and that I has had too many unliquidated advances.

Now I did push to get her terminated beginning at least with a letter requesting for explanation. Originally I wanted to issue preventive suspension.To my surprise, the boss wants to give the accountant another chance like asking her to remit the payments asap. I mean, holy cow, this is a person stealing companies fund and employees loan payments.

Of course this lead to some arguments between myself and my boss. To think that the only thing preventing me from leaving the company is I cared enough that I wanted to prevent such things from happening.

Now what can I do if in my quest to impose the company policy, I ended up being frustrated because my boss is taking side (instead of investigating)? Now I want to resign. Can remidies be afforded to me? At least I wanted to kick the accountant out. Can I claim that I am resigning because of I can no longer stand up to my personal ethical values?

The company has a head office in NCR but they mostly support them for accounting record and fund keeping purposes. If my boss doesn't listen to me, can I go there to report directly?

Ed Ebreo said...

@lost in frustration: I have a question in my mind. Is your boss instructing you or the accounting staff to pay the arrears after finding out that they are not paid? If he isn't ordering the payment, I suspect that he authorized your accounting staff's non-remittance. The accountant may just be following orders. Which is a possible explanation to his behavior of taking sides with the accounting staff.It is also likely considering that the company is under financial stress. I suggest that you clarify this with your boss. If that is the case, your boss might be violating the law regarding payment of mandatory benefits and taxes. You can report this to any D.O.L.E. or National Labor Relations Commission office near you. You can check out their website here for details. Reporting this to DOLE NLRC means you are making the company accountable for their violation. I agree as a person of ethical values, you should not allow your company to not give employees what's due them. Specially if your boss won't come clean to the employees about the problem.

Anonymous said...

Hi Ed,

From full time employment, I requested to have part-time employment. I assumed that with regard to pay everything should be dealt with by my supervisor and the HR should make the necessary adjustments. Next 3 pay periods I was still getting my full salary for full time employee but knowing our HR, they are always late in filing things and then the last pay period my part-time salary is already in effect.

Now, they are asking me that the extra payments that they credited to my salary will be deducted in full bulk. Meaning, I will have no pay for 3 pay periods. I am willing to pay the extra payments back but I'm asking if it can be payable in 3 months instead of taking the whole bunch out of my salary. Do I have a say about this?

On top of that they have not remitted my loan payments to SSS. It's almost been a year now and when I follow up with HR they'll just say they'll follow it up with Finance. I have been following up since February. If I file a case against them with DOLE, will I get compensated?

Anonymous said...

hi, just want to inquire an incident that happened recently to my hubby, he was dismissed due to awol, this are since that transpired, My hubby texted his superior that he cannot come to office due to the condition of my 6month old son, he got sick and needed attention, since my hubby is calm we decided that he's the one who will take care my son.

after 10 days of absent, since their usual procedure is to get a Return to work pass before going back to office, he was given a noticed, that he need to explain why he was absent and not allowed to go back to work until the decision is served.

On October 23, he went back in the office, to explain to the owner and hr. head and said he will be dismissed, right then he was asked to sign a termination letter, and not giving him a copy of the letter
Is it normal?

due process means the company will investigate right?how come they did not ask the superior.
Failing to prove that company policy had informed the employee is part of the process? my hubby did not know the company policy in filing their leave will free him on the disciplinary action made by the company??

Edwin Ebreo said...

You are right, there should be due process. I suggest that your husband go to DOLE to raise his grievance.

Edwin Ebreo said...
This comment has been removed by the author.
Edwin Ebreo said...

Dear "From full time to part time,"

Let me put myself in your shoes just to share with you what I would do if I was in your situation.

1. I will immediately inform management that they paying me more than they should.

2. Not spend money that is not really mine in case they realize and decide to take them back

3. If I did spend it as I think you did, I would ask them to deduct it in several tranches because I will be in financial trouble and will not be able to do my work well if I end up not having enough money to do my work.

4. I will inquire about the non-remittance of my SSS premium. If I do not get the answer I want, I will inform them that I am going to SSS or DOLE to complain about it and go about it.

I hope this helps.

Anonymous said...

Hi Ed
I just want to clear up something,Im a contractual employee and i was awol from work last march 21,on the next day I came to work,sat march 23 my scheduled supposedly 2-10 but i came late 4pm,the manager did not allow me to time in and told me that im suspended for the next cut-off.Then the general manager talk to me forcing me to resign,is this right? Should I have due process.Hoping for your immediate reply

Edwin Ebreo said...

companies usually do not include contractual employees in their progressive disciplining policy. contractual employees can be fired for simply not meeting performance expectations or single instance of policy violation.. While fair play dictates that they ask you to explain why you should not be penalized for your violation, but I don't think it's required. I am a bit puzzled that they asked you to resign instead if firing you.

Gary Alvarez said...

Hi kuya ed,

I am an employee of an BPO industry. My supervisor is terminating me due to attendance issue. I was not able to go to work for 3 consecutive days. On our company handbook we have steps to follow. Once u failed to report to work make sure bring a copy of documnt why u were absent. 1st occurence, written warning, 2nd occurence, 3 days suspension, 3rd occurence 10 days suspension. And 4th occurence dismissal. I was just being suspended 3 days and never suspended for 10 days yet however they are already terminating me. Am i have d right to file a clmplaint? Gary

Edwin Ebreo said...

If you are a regular employee, yes you should report it to DOLE. If you are proby or contractual employee, please check if there is a provision in your contract that says violation of any company policy may or will warrant termination. Non-regular employees usually do not have that security of tenure privilege of regular employees.

Reynalyn Chew said...

Good day po.
I have a question sir. I work with a company that sells marketing software to US clients. I haven't had a sale since I started here almost 8 months ago. They put me under PIP since the middle of May and it will end by the middle of June. I understand and agree that they put me under PIP because I don't have a sale yet. What I don't agree on is the fact that they only gave me 1 month to produce a number or else they will terminate me. No verbal warning, written or final warning. No documentation but the PIP I signed. Though we know the target, we didn't sign anything before about that. I don't think it's right to terminate someone without giving proper documentation or due process. Can I get an opinion from you regarding this. By the way, I'm a regular employee sir.

Thank you. God bless.

Edwin Ebreo said...

Reynalyn, first, what is a PIP? is it a sort of remedial action or ultimatum requiring you to meet your target or else you will be terminated? If you signed it and it says, you will be separated from the company if you fail to meet your performance target, then that document might be what they are basing their decision from. If you agreed to the condition, it is binding. No need for written or verbal warning.

I also suggest that you check with DOLE if you feel that you have been treated unfairly. Show them the PIP document that you signed so they have a better understanding of your situation.

Joyze Reyes-Titong said...

Hi ed,

I just want to ask I'm working at agency and had a contract until June 15 but the thing is they want to terminate due to just causes. The termination is filed dated June 20. Is the termination still valid?

Edwin Ebreo said...

It sounds strange that your contract has ran out and yet, you still need to be terminated. Did you get a new contract? I suggest you consult a lawyer if you are interested in contesting what they did to you.

Anonymous said...

i was terminated stating subordinates disliked my supervision style. I was told management spoke with all of them and made this decision from interviews. I never knew of a complaint and was terminated once told of there decision after the interviews. They want me to sign a contract not to sue to accept their severance package

Edwin Ebreo said...

if I were you I would seek the truth with my subordinates.I would ask them if it is true and ask them what part of my supervision they don't like so I can learn. If they say the have no problem with me I would call management's attention to it and demand an explanation. if they say they do have a problem with me and I feel that their reason is justified, I will move on. This is not a legal advice obviously,If you want legal advice I suggest you present your problem to a lawyer.

Anonymous said...

Hi. I just want to ask help.

An employee went AWOL last October 2012. Her reason is she has to take care of something. She just decided not to come to work anymore without proper notice. She was informed of the consequences but she still pursued with her decision not to report to work anymore. Now, after 9 months, she is claiming her last pay and 13th month pay which the company did not give anymore since her status was AWOL. However, the company wasn't able to report to DOLE this matter which i know should be part of the process. Please enlighten me what to do. Thanks.

Anonymous said...

Hi kuya, just wanna ask, my sister is currently under Preventive Suspension due to Fraud (she is working in a Call Center), aside for termination, what other consequences she may face? Tnx.

Edwin Ebreo said...

If she worked for it, then she is entitled to ut unless she has financial accountability to the company that she has to pay.

Edwin Ebreo said...

Depending on what she did she can be civilly or criminally liable if the company decides to litigate

Anonymous said...

Tnx po s reply. Wala naman pong money involved. Meron lang naganap na "adding of user or credit card extension" w/o authorization from the Owner of that credit card.

Nicka said...

Good Day! Ask ko lang po sana, I was working for a call center before. sa opisina po kasi namin, meron pong very strict policy sa lates and absences, Nag karoon po ako ng 4 lates all in all sa loob po ng one year n stay ko sa company, one minute late in Aug 2012, 1 minute late in Oct 2012, 4 hours in Nov, 2012 I was regularized on April (one year po kasi ang regularization namin though ang alam ko dapat 6 months lang ayun sa batas) then and 1 late on July 2013, yung Nov late ko po i think is valid naman since na ER ung anak ko. on my 4th late I was given a dismissal notice, and notice for a hearing which is nkipag usap sakin yung HR to tell me lahat ng lates ko, then they told me that they'll give me another chance pero pag na late or nag absent ako automatic last day ko n daw po yun. on Aug 2013 Nagkasakit po ako so i was unable to report to work, then by afternoon nka receive po ako ng sulat from mssenger ng company that I was already dismissed sa work. Ask ko lang po kung may laban po ba ako sa ganun,and kung pde ko pa habuling ung SLVL ko di po kasi nila binigay since dismissed nga po ako. salamat po

Edwin Ebreo said...

Wow, ang lupit naman! I suggest that you give DOLE a call and tell your story. They might be liable for illegally dismissing you.might ha! Hindi ako sure. That's why I'm suggesting that you inquire with labor

Anonymous said...

Hi Ed,

I actually do not know what is the status of my employment at the moment. I resigned last January 14 this year via email and January 16 to personally send my resignation paper to the office. Take note the the last day that I went to work was January 7. January 8 and 9 was my RD. So from January 10 - 13 I went AWOL already since I needed an immediate resignation since I have a greater opportunity placed before me.

Now I know that my Team Lead should be providing me a Notice to Explain on the 5th day of being AWOL (but since I emailed her my resignation letter on the 14th, I really do not know what would be the next step) but did not receive any communication about it. Now, I am waiting for the Return to Work Order since my last day of work and have not receive any communication regarding it as well. I talked to her via Facebook last Wednesday (January 29) if I can process my clearance so to return company badges, IDs that was given to me when I am still their employee. But what she told me was my resignation was not accepted by our Account Supervisor since I didn't render the 30 day work. She also told me that they had pushed my termination.

My question is, is this the correct way to terminate an employee? I would accept my termination if I underwent the correct process which is Notice to Explain on the first week (did not receive this) Return to work Order on the Second week or 15th day if I did not respond to the first one ( But did not receive this either.)

What would be the next best thing to do regarding this matter?

By the way, did I mention that when I ask what was suppose to be the process for clearance my Team Lead told me that she doesn't know the process?

I would appreciate the help..

Thank you

Edwin Ebreo said...

Yoi can challenge the termination by going to the department of labor, although I think it is moot because you obviously have no plan to return.

LinkWithin

Related Posts Plugin for WordPress, Blogger...