Labor Law Review Q&a Nos.23-25 (1).docx

23. Explain the 2 kinds of illegal dismissal. i. The dismissal was without a just or authorized cause but due process was observed. – There is an intention on the part of the employer to dismiss the employee but the dismissal was found to be without just and authorized cause, although the employee was afforded with sufficient notice and adequate hearing in relation to his dismissal. ii. The dismissal was without a just or authorized cause and due process was not observed. – The employer intends to terminate his employee without just or authorized cause and the former had not given any notice and hearing to the latter.

24. What are the twin requirements of notice and hearing? Explain fully. The twin requirements of notice and hearing constitute the essential elements of due process. Due process of law simply means giving opportunity to be heard before judgment is rendered. The two aspects of due process are: Procedural and Substantive due process. a. Procedural due process – It constitutes the legality of the manner of dismissal. Procedural requirements of due process in termination disputes are the following: 1. Pre-Notice or first written-notice; 2. Conduction of hearing; and 3. Post-Notice or second written notice. b. Substantive due process – The just and lawful cause constitutes the substantive aspect of due process. In other words, the dismissal must be for a valid or authorized cause as provided by law. It constitutes the legality or illegality of the act of dismissal.

25. Explain the different kinds of termination and their different effects. a. Dismissal for a just cause under Article 297 of the Labor Code with due process. – The employer has just cause to terminate the employee. Hence, the termination is legal. b. Dismissal for authorized cause under Article 298 of the Labor Code with due process. – The employer has authorized cause to terminate the employee. Hence, the termination is legal.

c. Dismissal for health reasons under Article 299 of the Labor Code with due process. – When an employee suffers from a disease and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees, the employer shall terminate his services. Termination is legal. d. Dismissal without just or authorized cause with due process. - Employer terminates the employee without just or authorized cause to do so, even if notice and hearing is conducted. Termination is illegal. Employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement. e. Dismissal without just or authorized cause without due process. – Such dismissal is illegal and the law mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement. f. Dismissal for just or authorized cause without due process. – Where there is failure to observe the procedural requirements, a sanction may be imposed by the court on the employer to indemnify the dismissed employee. Termination is legal but employer is liable to pay indemnity in the form of nominal damages. g. Dismissal for a false or non-existent cause. – The employer does not intend to dismiss the employee but the dismissal was effected nonetheless for a specific cause which turns out to be non-existent. Termination is illegal and thus, reinstatement is warranted.