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

  • Atty. Libayan
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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.
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Last Edit: 7 years 2 weeks ago by Atty. Libayan.
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