For just causes of termination of employment under Article 288 of the Labor Code, procedural due process comprises of the twin-notice rule: a notice to apprise the employee of the ground for which his dismissal is sought and a notice informing the employee of his dismissal, issued to him after being given reasonable opportunity to be heard.
For authorized causes of termination under Article 289, due process consists of notices furnished to the Department of Labor and Employment (DoLE) and the employee 30 days prior to the effective date of termination.
However, Article 290 (previously Article 284), or terminations due to disease, presents curious case for procedural due process requirements.
While jurisprudence has consistently regarded Article 290 as an authorized cause for termination, the Supreme Court, in Deoferio v. Intel Technology Philippines, Inc. (GR No. 202996, June 18, 2014) has mandated that the twin-notice requirement for just causes of termination likewise applies to cases of termination due to disease.
Article 290 allows an employer to terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees upon payment of the required separation pay. A competent public health authority must certify that the disease is of such nature that it cannot be cured within a period of six months even with proper medical treatment.
The observations of the Supreme Court in Deoferio are apt in that the Labor Code and its Implementing Rules and Regulations are, indeed, silent on the procedural due process required in terminations due to disease.
The Supreme Court ruled in Deoferio that because an employee should be afforded procedural due process in all cases of dismissal, the failure of the company to furnish the employee the twin-notice rule entitled the latter to nominal damages for a violation of his right to procedural due process. The Supreme Court held that the Court of Appeals gravely abused its discretion when it ruled that the twin-notice requirement does not apply to terminations due to disease, as a conclusion that is unsupported by law and jurisprudence.
However, contrary to such pronouncement, an earlier en banc ruling of the Supreme Court in Agabon v. National Labor Relations Commission (GR No. 158653, 17 November 2004) explicitly stated that if the separation is based on authorized causes, due process is complied with by the giving of a 30-day notice to the employee and the DoLE. Deoferio appears to reject this ruling and insists instead on the application of the twin-notice requirement to terminations under Article 290.
If one considers the rationale for terminations due to just cause and authorized cause, the difference in the procedural due process requirements becomes evident. Since just causes termination deal with a violation by the employee, apprising him of the ground for his termination and affording him the opportunity to be heard allows the employer to establish by its own evidence its case for dismissing the employee.
For authorized causes, the law acknowledges that certain business exigencies allow termination of employment.
In only requiring a 30-day prior notice, the law impliedly recognizes the requirement of complying with the twin-notice rule and an opportunity to be heard as superfluous since the management has already determined a certain business exigency that necessitates separation of employees.
With the foregoing premises in mind, requiring an employer to comply with the twin-notice rule for terminations due to disease proves to be problematic.
First, the certification of a public health authority regarding the nature of the disease already renders redundant the process of furnishing the employee the twin-notice and an opportunity to be heard. The certification of a public health authority should already suffice to establish the existence of the disease that cannot be cured within a six-month period, even with proper medical treatment.
Second, the written explanation of the employee and the conduct of an administrative hearing raise some questions. How does an employer require an employee to prove his health? Conversely, how will an employee raise his defenses against a certification of a competent public health authority as to the nature of his disease? Must the employee produce his own medical evaluation and certification? If so, how can the employer weigh the defenses raised by the employee against such certification?
Finally, requiring compliance with the twin-notice rule for separation due to disease, distorts the distinction between terminations due to just and authorized cause.
Deoferio itself recognizes that terminations due to disease do not entail any wrongdoing on the part of the employee. However, in requiring compliance with the twin-notice rule, the Supreme Court effectively requires a process that is meant to prove the said “wrongdoing” as opposed to a termination due to the business exigency or the necessity of having a ready, willing, and able employee to perform work for his employer, without any prejudice to his health or to the health of his co-employees.
Considering the foregoing, the ruling in Deoferio may need further clarification. Perhaps, the Supreme Court, in another case, and especially considering the concerns raised above, may take the opportunity to clarify its ruling in Deoferio, especially in light of the ruling in Agabon.
Franchesca Abigail C. Gesmundo is an Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
830-8000
fcgesmundo@accralaw.com
source: Businessworld
kung project based ang employee? sa construction, workers are rehired as project based for different projects, can they be applied the separation by illness rule? thanks
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