Twin Notice Rule

Dear Atty Duran-Schulze,

I got terminated and the employer used the doctrine of the Twin Notice Rule. May I know what this term is? 

 

Dear Gemma, 

The Labor Code of the Philippines (Presidential Decree 422), provides that an employer may terminate an employment for any of these Just Causes: 

  • serious misconduct or willful disobedience (insubordination), 
  • gross and habitual neglect of duties, 
  • fraud/willful breach of trust, 
  • commission of a crime, and 
  • other analogous cases.

It is called Just Causes because the termination of employment is justified due to an employee’s actions, behavior, or omission, either of which resulted in a serious or grave violation of the law, employment contract, company policies, collective bargaining agreement, and any other employment agreement.

The case of Fujitsu Computer Products Corporation of the Philippines v. CA (2005), discussed that employees must be afforded an opportunity to be heard and defend themselves. Hence, the employer shall furnish the worker, whose employment is sought to be terminated, a written notice containing a statement of the causes for termination; and afford the latter ample opportunity to be heard and to defend himself, with the assistance of his representative if he so desires, in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department Of Labor Employment (DOLE). 

The constitutional requirement of procedural due process contemplates, “notice and opportunity to be heard before judgment is rendered affecting one’s person or property”. (Montinola v. PAL (2014))

The employer has the burden of proving that a dismissed worker has been served two notices:

  1. First written notice: specifying the ground(s) for termination and giving the employee the reasonable opportunity within which to explain his side.
  2. Second written notice: indicating that upon due consideration of all circumstances, grounds have been established to justify his termination.

Reasonable opportunity for the first written notice should be construed at least 5 calendar days from receipt of the notice.

The case of King of Kings Transport v. Mamac (2007) and Puncia v. Toyota Shaw/Pasig (2016), provides that the twin notice requirement is to give the employee an opportunity to study the accusation against him, consult a union official or lawyer, gather data and evidence, and decide on his defenses.

As to the contents of the notices, the following should be present:

First Notice

Second Notice

Specific causes or grounds for termination against the employee All circumstances involving the charge against the employee considered
Directive that the employee is given the opportunity to submit his written explanation within a “reasonable period” or every kind of assistance that management must accord to enable him to prepare adequately for his defense. Grounds established to justify the severance of employment. (United Tourist Promotions v. Kemplin, (2014))
Detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. (Unilever v. Rivera, (2013))
The company rules, if any, violated and/or the grounds under Art. 288 being charged against the employee. (United Tourist Promotions v. Kemplin, (2014))

 

It should be noted that an employee may be dismissed only if the grounds mentioned in the pre-dismissal notice were the ones cited for termination of employment. (Erector Advertising Sign Groups v. Cloma, (2010))

These rulings reinforce the State policy of protecting the workers from being terminated without cause and without affording them the opportunity to explain their side of the controversy. (Deoferio v. Intel Technology, (2014))

Need further information and assistance?  Talk to our Legal team at Duran & Duran-Schulze Law. Call us today at (+632) 478 5826 or send an email to info@duranschulze.com for more information.

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