Welcome, Guest
Username: Password: Remember me

TOPIC: first notice as required by due process and prelim

first notice as required by due process and prelim 7 years 2 weeks ago #790

  • Myka
  • Myka's Avatar
  • OFFLINE
  • Fresh Boarder
  • Posts: 1
  • Karma: 0
Hi and good day, I would like to humbly seek legal advise and would greatly appreciate assistance that you may extend. My query is about the decision handed down by the Labor tribunal in relation to the illegal termination case I filed with my company.First of all let me state some facts as to how the illegal termination case came about. I received a Show Cause notice from my company informing that they supposedly received a number of complaints from a third party who were not even officers nor employees of the company. As contained on the Show Cause Notice, four incidents were noted, every incident contain a narration of the supposed facts of the supposed complain made by the third party. (pls. be advised that these supposed complaints were not corroborated, the supposed third party complainant were not even presented to me. Aside from the incidents, instructions are likewise clearly stated in the said Show Cause Notice that it contains suspected violations, further it is a part of the proper process of investigation, wherein the company intends to determine whether I committed a violation and "if any" determine what particular disciplinary action should be taken.

After receiving the said notice and as required, I submitted my detailed explanation on the matter stated and raised therein, likewise I was invited to attend a fact finding wherein I was made to answer the same questions stated in the Show Cause. After going through the said process and one (1) month after attending the last day of fact finding I was issued a notice of termination. I was so surprised by the termination, because after submitting my explanation including evidence and likewise attending the fact finding, I was never informed of the result of the fact finding, as to what violation I supposedly committed or as to what incident was I found guilty of.

After 6 days after receiving the notice of termination, I filed an illegal termination case against the company. after the failed arbitration, the labor arbiter required both me and the company to submit our position paper at the same time (is the procedure of both me and the company submitting our position paper at the same time allowed by law?)
after the exchanges of position paper, reply and rejoinder, the labor arbiter found the termination legal.

In its decision the labor arbiter claim that the incidents already contain inimical acts which he claims I already perpetrated and committed without even stating what was the particular act he was referring too. What is more surprising is that after stating that the 4 incidents contain inimical acts in general, he found the termination legal based on the mere existence of the incidents in totality and thereby claim it was gross and habitual neglect of duty. And without evidence as to what is my duty in relation to my position, he also considered the termination based on loss of trust and confidence.

In his resolution he also finds the termination valid after finding the company supposed to have afforded me due process. Reading over the said resolution, the labor arbiter never stated nor pointed at the Show Cause notice as compliance to the first notice but then aside from the said notice there is no other notice that was submitted as evidence.

On the part of the labor commission, a decision upholding what was then rendered by the LA, the only difference is that, the LC only recognized Gross and habitual neglect of duty and never mentioned the loss of trust and confidence in its resolution. the LC likewise stated that it came to the said decision after finding that I failed contest whether the incidents were part of the company rules and regulations. But then the company also failed to prove that what is narrated in the incidents where part of the rules and regulations of the company.

Aside from the facts I have stated above, I would like to seek your opinion on the matters pertaining to the proper application of due process and the intention as required by the labor code.

1) As narrated above, the Show Cause Notice was issued to inform me of the supposed number of complaints received by the company, and the intention to conduct an investigation, and to determine what disciplinary action, hence, does the Show Cause Notice comply with the first notice as required by due process?

2) Was I given the ample opportunity to be heard?

3) Since the Show Cause Notice contain suspected violation, was I properly charged?

4) It was admitted by the company that upon receiving the supposed complaints, immediately issued the Show Cause Notice, therefore, No preliminary investigation was conducted. Therefore, is the termination considered legal without the conduct of preliminary investigation?

In my narration, I felt I was deceived by the company, since after asking me to submit myself to the said investigation as stated on the Show Cause, during the submission of pleadings, and contrary to what I was told, the company introduced the said Show Cause as compliance to the first notice.

moreover, it is clearly stated on the Show Cause that there was the intent to conduct an investigation but during the submission of pleadings the company stated that it was already conducting a termination proceedings, how could there be a termination proceedings well in fact the disciplinary action is yet to be determined "if any".

Is there a due process if the company issued a first notice without conducting a preliminary investigation. Or is due process complied with without the existence of both preliminary investigation and formal charge?

As I raise these issues, I hope your readers will be enlightened and thereafter given pre-caution into answering queries conducted by the company. Since the memorandum and explanation which was supposed to be a part of a simple company procedure can be claimed already as due process. Which sad to say but I myself became a victim. The advise which I respectfully seek will help me decide as to whether I will push through with my case. I believe the importance of seeking the assistance of a lawyer, with due respect, aside from the fact that I have spent so much just to pursue this case, travelling from Baguio to NLRC vice versa and considering all other expenses,but after hearing my lawyer say "kung hindi ko pa nakita itong kaso mo di ko pa alam na dapat pala ganito ang contents ng first notice" which after hearing the said statement gave me anxiety and the verge of losing hope. And with your advise, I hope I will regain the resolve and to go further. Thank you and more power.
The administrator has disabled public write access.

first notice as required by due process and prelim 7 years 2 weeks ago #807

  • Atty. Libayan
  • Atty. Libayan's Avatar
  • OFFLINE
  • Administrator
  • Please contact us for all your legal needs.
  • Posts: 3361
  • Thank you received: 354
  • Karma: 49
1. This is factual. It depends on what are contained in the show cause action if it may also serve as a notice. Remember there is no steadfast rule on what due process is unless the law is explicit.

2. This is also factual. Opportunity to be heard in layman is giving you a chance to reason out or explain yourself. If according to the circumstances, enough was given to you, then enough it is.

3. This is an internal procedure of the company your are working with. Companies can have their own procedure in dealing with things. It is not uniform for all. What matters is it is not against the law. The fact that you were asked to answer to the complaints, that would mean you were charged.

4. According to the labor code, notice and hearing is necessary in termination and not preliminary investigation.

I can see that what you are trying to say is if the show cause is a notice of termination. Like I said it may or may not be. It is a question of fact.

Preliminary investigation is not mandatory, neither is a formal charge in its strictest sense. If companies would follow procedures in criminal cases in firing employees, it would consume a lot of resources just to fire one person. Compliance with the law suffices even if the procedures are worded differently.
"Excellence is our Standard..."
Please note that answering your queries in the free legal advice forum does not create an Attorney-Client relationship.
Seek services of an independent counsel when dealing with legal issues. Legal issues need scrutiny and attention.
Last Edit: 7 years 2 weeks ago by Atty. Libayan.
The administrator has disabled public write access.
Time to create page: 0.050 seconds
Powered by Kunena Forum ::

CONTACT US NOW!

Philippine Lawyers

We go live to answer all your questions

Free Legal Advice Every Wednesdays and Fridays
at 6:00 pm

Facebook Event | YouTube Channel

Season One

Episode 1:  August 31, 2018

Facebook Video | YouTube Video

Episode 2:  September 7, 2018

Facebook Video | YouTube Video

Episode 3:  September 13, 2018

Facebook Video | YouTube Video

Episode 4:  September 21, 2018

Facebook Video | YouTube Live

Episode 5:  September 28, 2018

Facebook Video | YouTube Video

Episode 6:  October 5, 2018

Facebook Video | YouTube Video

Free Legal Advice

IMPORTANT NOTICE

If your predicament is urgent; or, when your case is already pending in court; please do not opt for the free legal advice. It is best to get in touch with a lawyer the soonest possible time. I answer all queries here personally but sometimes it may take time because of my busy schedule. Rest assured all will be answered but the time is indefinite. Thank you for understanding.

Ranny Randolf B. Libayan

OFFICE HOURS

9:00 AM TO 5:00 PM Monday to Friday

We are also open for appointments on weekends

It is best to contact us for an appointment if you decide to visit us so you will be given priority

SERVICES WE OFFER:

Philippine Law Firm

Representation

We will represent you in court, administrative, and other tribunal hearings.

Law Firm in Taguig

Notarization

We provide notarization and drafting of all kinds of legal documents.

Notary Public

Legal Consultation/ Retainer

We provide the best legal advice about anything legal whether it be via retainer or just one time.

Philippines Free Legal Advice

Free Legal Advice Online

We provide free online legal advice just proceed to the forums.