Illegal dismissal and damages

Pin It

There is an article (“The Termination“) in the July 2007 issue of Entrepreneur Philippines that discusses certain reminders for the management in terminating employees. The article got my attention because, among other things, it mentions that non-compliance with the due process requirements in terminating an employee renders the dismissal illegal. I got in touch with the author because, as far as I know, this is no longer true today.

I previously wrote that a violation of the twin-notice requirement, which is an aspect of due process, does NOT render the dismissal illegal or ineffectual:

There are two basic issues in the foregoing scenario. The first issue relates to the employer’s violation of statutory due process, which is the subject of flip-flopping Supreme Court decisions. In the Serrano case (2000), the Supreme Court ruled that where the employer had a valid reason to dismiss an employee but did not follow the twin requirements of due process, i.e., notice and hearing, the dismissal is ineffectual and the employer must pay full backwages from the time of termination until it is judicially declared that the dismissal was for a just or authorized cause. Fortunately, this is no longer the controlling doctrine. On 17 November 2004, the Supreme Court promulgated its decision in Agabon reversing this rule. Now, where the dismissal is for a just cause, the lack of due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer is liable for damages, the amount of which is subject to the discretion of the court, for violating the employee’s right to due process. This is a reversion to the pre-Serrano doctrine enunciated in the Wenphil case. Indeed, it is only fair that when the dismissal is for cause, the failure to comply with the twin-notice rule should not invalidate the dismissal.

The Supreme Court stated the rationale for this change of rule, and I must say I agree with it. According to the Court, declaring a termination as illegal on the mere ground that there’s no compliance with due process requirements . . .

“. . . would encourage frivolous suits, where even the most notorious violators of company policy are rewarded by invoking due process. This also creates absurd situations where there is a just or authorized cause for dismissal but a procedural infirmity invalidates the termination. Let us take for example a case where the employee is caught stealing or threatens the lives of his co-employees or has become a criminal, who has fled and cannot be found, or where serious business losses demand that operations be ceased in less than a month. Invalidating the dismissal would not serve public interest. It could also discourage investments that can generate employment in the local economy.”

Comments (12)

  1. angie

    I am glad there are changes in the labor policies regarding termination. this will surely protect employers..

    Thumb up Thumb down +1

    Reply
  2. george m florendo

    the information is very enlightening and the cases should apprise overzealous labor arbiters that they should also consider the interests of the employer, specially security gaurd agencies who deepend on their clients for the continued employemnt of security guards.

    Thumb up Thumb down +1

    Reply
  3. bing solis

    hi fred, agabon only refers to cases of dismissal for just cause, what if the dismissal was also illegal?

    Thumb up Thumb down +1

    Reply
    1. Fred

      Hi Bing, I’m sorry but I can’t quite get what you’re driving at. What do you mean by “if the dismissal was also illegal”?

      Thumb up Thumb down 0

      Reply
  4. Joan

    Hi,

    I am in a dillema. My female supervisor wants to build a case a
    gainst a crew due to prejudice. Th husband is the Operations Manager
    and suggested to just compensate the crew by giving a hefty amount as
    separation pay. I think it is wrong but what should I do?

    Thumb up Thumb down -2

    Reply
  5. Jayrold Porciuncula

    Good day Sir, I’m Jayrold Porciuncula a motorized collector in a I.T Product Distributor here in Makati. I’m in some sort of a problem with my employer. I’m in the process of being terminated to my job. The case that they were accusing me was tardiness. The company’s rule book got six (6) offense before you will be considered to be terminated. I only reached my fourth offense in tardiness and they suspended me for five (5) days. Plus they gave me this evaluation paper for six months that I did not agreed to sign. After six months of evaluation the result of those evaluation was a failure. And they gave me this subject for termination case. I’m asking for my termination paper, but they refuse to give. instead they offers me to resigned with a two (2) months salary and a certification. I refused to give in. But now they are giving me another evaluation paper for six months again but this time they wish that I would signed it legally. Again sir i refused, and for now I’m on leave of absence trying to seek help. Can you help me with this problem?
    Thanks for your time reading this!
    More power!

    Thumb up Thumb down 0

    Reply
  6. Jayrold Porciuncula

    Good day Sir, I’m Jayrold Porciuncula a motorized collector in a I.T Product Distributor here in Makati. I’m in some sort of a problem with my employer. I’m in the process of being terminated to my job. The case that they were accusing me was tardiness. The company’s rule book got six (6) offense before you will be considered to be terminated. I only reached my fourth offense in tardiness and they suspended me for five (5) days. Plus they gave me this evaluation paper for six months that I did not agreed to sign. After six months of evaluation the result of those evaluation was a failure. And they gave me this subject for termination case. I’m asking for my termination paper, but they refuse to give. instead they offers me to resigned with a two (2) months salary and a certification. I refused to give in. But now they are giving me another evaluation paper for six months again but this time they wish that I would signed it legally. Again sir i refused, and for now I’m on leave of absence trying to seek help. Can you help me with this problem?
    Thanks for your time reading this!
    More power!

    Thumb up Thumb down 0

    Reply
  7. Jayrold Porciuncula

    Good day Sir, I’m Jayrold Porciuncula a motorized collector in a I.T Product Distributor here in Makati. I’m in some sort of a problem with my employer. I’m in the process of being terminated to my job. The case that they were accusing me was tardiness. The company’s rule book got six (6) offense before you will be considered to be terminated. I only reached my fourth offense in tardiness and they suspended me for five (5) days. Plus they gave me this evaluation paper for six months that I did not agreed to sign. After six months of evaluation the result of those evaluation was a failure. And they gave me this subject for termination case. I’m asking for my termination paper, but they refuse to give. instead they offers me to resigned with a two (2) months salary and a certification. I refused to give in. But now they are giving me another evaluation paper for six months again but this time they wish that I would signed it legally. Again sir i refused, and for now I’m on leave of absence trying to seek help. Can you help me with this problem?
    Thanks for your time reading this!
    More power!

    Thumb up Thumb down 0

    Reply
  8. jasper M Feliciano

    good day
    i was terminated within 3 days with out any memorandum
    their reason is i built tutorial services but theirs no such law based on the school rules and regulation that we are not allowed to build tutorial services.
    other one is i signed the renewal slip on the time i was terminated they told me that i was not signed contract that is why they are free ti fired me what is my power now against the school

    Thumb up Thumb down 0

    Reply
  9. les

    hi! i was terminated in my job without any notice given to me, the company gave me my separation pay,,i was a regular employee in the company, can i file illegal dismissal?i stay in the company for 1 yr and 2 months and fired me without any reason, my boss is a korean

    Thumb up Thumb down 0

    Reply
    1. threadstone

      Yes, you can file a case of illegal dismissal against the company.

      Thumb up Thumb down 0

      Reply
  10. Helentroy

    what is the prescription of labor case in terms of illegal dismissal? thanks?

    Thumb up Thumb down 0

    Reply

Leave a Comment

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Support AttyAtWork

×