Defining Due Process

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When it comes to terminating employees, one of the things you have to be careful about is ensuring due process.

What is Due Process?

 According to trusty, ol' Wikipedia, "Due process is the legal requirement that the state must respect all

legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law."

In layman's terms, due process is the assurance or protection that there is some amount of legal process that protects any individual from some action that may be taken by the state. In corporate parlance, due process refers to the protection afforded employees, assuring them of a legal process for actions that may be taken by the employer.

Due Process and the Philippine Labor Code

 When it comes to disciplinary actions, the Labor Code requires adherence to two types of due process - substantive due process and procedural due process.

Procedural Due Process generally means that the twin-notice rule has been followed. This is done by serving a Notice of Explanation first before handing down the Notice of Decision (thus, twin notice). Keep in mind though that the respondent has to be given enough time to answer the Notice of Explanation. In the case of King of Kings Transport vs. Santiago Mamac, the Supreme Court has already established ample time to be "...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".

On the other hand, Substantive Due Process, from the name itself, focuses on the substance of the case. Is there a valid reason for the disciplinary action? If there is one, is the penalty commensurate to the gravity of the offence? One of the things that you have to remember is that the burden of proof lies on the employer. This was made clear in the case of Agusan Del Norte Electric Cooperative, Inc., et al. v. Cagampang, et al.

Ensuring Due Process

In order to adhere to due process you have to keep in mind the following:
  1. Ensure that you have a well-thought Code of Conduct in place. We did two blog posts on how to do an employee handbook as well as the Code of Conduct. One of the key aspects should be a progressive disciplinary action. This is in line with the intent of any Code of Conduct - to correct employee behavior.
  2. Everyone should be familiar with your Code of Conduct. When it comes to this area, it is better to overcommunicate. Do regular refresher courses so that the employees are familiar with the process and the penalties. Managers and Leads should know the proper process of handling a disciplinary action.
  3. Your Notice to Explain (NTE) should contain all the specific details of the incident and the report raised against him. Who filed the report is not important. It's the date, time, place, etc. that is more important so make sure you have clearly indicated those. Mention also what part of the Code of Conduct was violated. It is also worth indicating if this was an initial violation or a second, third, etc. violation. This will give your employee an idea of what the penalty might be if he is proven guilty.
  4. Always close off an NTE with an NOD. Never leave an NTE open as you can use this as basis for future disciplinary action in case the employee repeats the behavior. Remember - twin-notice rule. This will also protect your company in cases of termination due to job abandonment, and allows you to officially tag an employee as separated.
  5. Documentation is important. Whether it is a simple change in job grade or a log of any coaching, a documentation of such should be made. When it comes to labor cases, it's all about what you can prove in your position paper.
  6. Ask a labor lawyer, not a corporate lawyer. While both have knowledge of the different laws of the land, a labor lawyer would be able to provide a more meaningful context as this is their specialty.

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