Employee Discipline

Two Things You Need to Remember When Firing a Problem Employee

How to legally terminate an erring employee.

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In the Philippines, we have what we call the twin-notice rule or the two-notice rule, to ensure that the erring employee’s right to due process has been accorded to him or her. Yes, you got that right, around here, labor enjoys that level of protection.

Problematic employees are everywhere and any employer would be glad to be rid of this kind of employee as soon as possible if only to get rid of the headache. Most times, as has been happening lately, we only think of ways to kick the employee out in a hurry, sometimes, forgetting to consider the possible consequences. Later on, we get a complaint or summons from the Department of Labor and Employment because the now disgruntled former employee filed a complaint against us which will cause us problems and cost us. Hello, consultation, acceptance, and appearance fees!

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Most employee-complainant feel that we only listen to them when they file a complaint for illegal dismissal against us, employers, before the proper government agency. This makes them feel heard, or vindicated, even. To at least cause discomfort to their former employer in return for their job loss. These illegal dismissal cases almost always have a last name — money claims like separation pay and other monetary benefits that the complainant feels he or she is entitled to, before being summarily dismissed from work.

Some resort to media coverage in order to rally the sentiments of the public against us. This is a problem that we can actually prevent, by observing the twin-notice rule as provided for not only by the Labor Code of the Philippines but by numerous Supreme Court decisions. In legal parlance, we call it the right to notice and hearing which, when observed, accords both parties to due process. Here are the two key points that we need to remember as gospel for when we need to resort to termination of employment for erring employees, of course under the Authorized Causes for termination under Article 297 of the Labor Code:

The first written notice — usually called a Memo or notice to explain.

The second written notice — usually called the notice of the decision of termination by the employer.

The first written notice or the notice to explain directs the employee charged with the offense against the company policies to submit his or her written explanation within a reasonable period which should be at least five (5) calendar days from the erring employee’s date of receipt of the first written notice. During this period, the employer is required to provide assistance to the said employee to prepare his or her defense, be it access to documentary records or files which will enable the employee to fully defend him or herself.

Once the employee has submitted his or her written explanation, the employer himself can schedule an admin hearing with the employee or upon the employee’s request to conduct an admin hearing. In the hearing as scheduled, the employee is fully informed of the charge against him or her and should be allowed to present his side or defense, as well as, rebut the evidence presented against him or her by the management.

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It is in this first notice where preventive suspension may be issued in case the employer feels, within a reasonable degree of possibility, that the continuing presence of the employee poses a serious and imminent or immediate threat to the employer’s or his co-workers’ life or property. If it is proven that the suspension was not warranted by the circumstances as in when the employee files a complaint for illegal suspension, the employer is liable to pay for the days that the employee was placed under the illegal suspension.

Additionally, the preventive suspension issued cannot exceed thirty (30) days, otherwise, it can be deemed a constructive dismissal — this allows the employee to file an illegal dismissal complaint against the employer and we know what that means.

Now, after the written explanation has been submitted, the admin hearing is done, and it has been determined that there is a justifiable ground to terminate or dismiss the erring employee, a notice of termination or decision is issued.

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This is usually easier said than done, right? Not everyone is keen on receiving a notice or memo, what more of a notice of termination. This is usually where the common employer gets stuck. This is where service by registered mail comes in. Yes, if the employee refuses to receive the notices, all you need to do is send it through registered mail to the address registered in his or her employee records. Just make sure that you retain a copy of the registered mail number and its receipt in the employee records. Doing this should get you covered for when the angry former employee decides to file a complaint against you.

Do you have other questions about employee discipline within the Philippines? Feel free to message me at rdeansolis@gmail.com.

Paralegal | Employee Relations Specialist| Labor Relations| Industrial Relations| Your friendly neighborhood cat who ate the fish.