Published 9 December 2022, The Daily Tribune

Before the termination of any employment, the law mandates that the parties to the employment contract (i.e. the employer or the employee) be apprised of the impending decision of the other party to end the employer-employee relationship. Whether the termination is initiated by the employee or the employer, notifying the other party is required, and failing to do so would expose the non-compliant party to the corresponding legal consequences.

Under Article 300 of the Labor Code, “an employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance.

The employer upon whom no such notice was served may hold the employee liable for damages.”

While the law requires the employee to give his notice to the employer at least one month in advance, it does not prohibit the employer and the employee from consenting to a period that is longer or shorter than what is provided in the Labor Code. Similarly, the employer may provide a different notice period in the employment contract, but the employee must be aware of and consent to such a period. If the employees do not consent, the employer cannot impose a different notice period upon them since a unilateral modification of the notice period is not allowed. To emphasize, employment contracts are recognized by law as purely personal and consensual contract which requires the consent of both parties.

For termination of employment due to authorized causes under Article 298 of the Labor Code, the law requires employers to notify DOLE and the concerned employee at least one month before the intended date. Unless the employer provides for a longer notice period in its company manual or employee handbook or employment contract, the 30-day notice period as provided by the Labor Code governs.

As regards the just causes for termination under Article 282 of the Labor Code, the law does not require a “notice period” which must be complied with to make the termination lawful. The only requirement for termination by just cause is that the employer complies with the due process requirement of a two-notice rule, namely: 1) the written notice to explain; and 2 ) written notice of termination indicating that (a) all circumstances involving the charge against the employees have been considered, and (b) grounds have been established to justify the severance of their employment.

While there is no “notice period” per se for just causes, it must be emphasized that the violation of either the substantial due process right or the procedural due process right of an employee produces different results that adversely affect the employer. Termination without valid cause (substantial due process) renders the dismissal invalid and entitles the employee to reinstatement without loss of seniority rights and other privileges and full back wages, 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 (Distribution and Control Products, Inc. v. Santos, G.R. No. 212616, 10 July 2017).

An employee’s removal for a valid cause but without complying with the proper procedure (procedural due process), on the other hand, does not invalidate the dismissal. Rather, it obligates the erring employer to pay nominal damages to the employee, as a penalty for not complying with the procedural requirements of due process (Abbott Laboratories v. Alcaraz, G.R. No. 192571, 23 July 2013). In one case where the dismissal is based on a just cause but the employer failed to comply with the notice requirement, the employer was ordered to pay the employee nominal damages in the amount of P30,000.

Meanwhile, in a case where the dismissal is based on an authorized cause but the employer failed to comply with the notice requirement, the employer was ordered to pay the employee nominal damages in the amount of P50,000 (Veterans Federation of the Philippines v. Montejo, G.R. No. 184819, 29 November 2017).

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