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Due Process Requirements in Employee Termination

The Constitution states that no person shall be deprived of life, liberty or property without due process of law. Employee Termination is no exception.

Philippine Law states that one’s employment may only be terminated if there is a lawful basis for it. This means that employment may only be terminated for just and authorized causes. In spite of the presence of a just or authorized cause, the employer must nevertheless observe due process.


What are the components of procedural due process?

In a termination grounded on a just cause, due process requires the observance of the two-notice rule, to wit:

  1. A notice of intent to dismiss specifying the ground of termination and giving said employee reasonable opportunity within which to explain his or her side usually through a hearing or conference;
  2. A notice of dismissal indicating that upon due consideration of all the circumstances, grounds have been established to justify termination.

On the other hand, in a termination for an authorized cause, due process means a written notice of dismissal to the employee specifying the grounds at least thirty days before the date of termination. The Department of Labor and Employment (DOLE) should be furnished with a copy of the said notice.

What is the effect if due process is not observed even if there are just or authorized causes?

The Supreme Court has grappled with the legal effect and sanction in cases where a just and valid ground exists to justify the dismissal but the employer fails to comply with the due process requirement of the law. In 2004, the Supreme Court of the Philippines finally settled the issue in Agabon v. NLRC, G.R. No. 158693, November 17, 2004, holding that the failure of the employer to observe procedural due process does not render the dismissal ineffectual, provided that there are just or authorized causes. Rather, the failure to observe due process merely renders the employer liable for nominal damages.

Filed in: HR Management Services

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