, civil, or criminal. [Salaw v. NLRC, G.R. No.

90786, September 27, 1991]

(2) Procedural due process:
The employee must be afforded an opportunity to be heard and defend
himself. [Fujitsu Computer Products Corporation of the Phil. v. Court of Appeals,
G.R. No. 158232, March 31, 2005]
MEANING OF OPPORTUNITY TO BE HEARD
"Ample opportunity to be heard" means any meaningful opportunity
(verbal or written) given to the employee to answer the charges against
him and submit evidence in support of his defense, whether in a hearing,
conference or some other fair, just and reasonable way.
What kind of evidence to support his defense?
o Substantial evidence is required and it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion .
o Proof Beyond Reasonable Doubt is Not Required.
In employee dismissal cases, the essence of due process is simply an
opportunity to be heard; it is the denial of this opportunity that constitutes
violation of due process of law. [Technol Eight Philippines Corporation v.
NLRC, G.R. No. 187605, April 13, 2010]
WHEN HEARING IS NOT REQUIRED?
- No hearing is needed if the employee has admitted his guilt.
-

But there must be admission of guilt.

If the employee merely narrated and explained what he did, without

admitting his guilt, then conducting a hearing is required; otherwise, there
is a failure of due process.

PREVENTIVE SUSPENSION
-is a disciplinary measure for the protection of the company's property
pending investigation of any alleged malfeasance or misfeasance
committed by the employee.

 The employer may place the worker concerned under preventive

suspension if his continued employment poses a serious and imminent
threat to the life or property of the employer or of his co-workers.
However, when it is determined that there is no sufficient basis to justify
an employee's preventive suspension, the latter is entitled to the
payment of salaries
during the time of preventive suspension. [Gatbonton v. NLRC, G.R. No.
146779, January 23, 2006]
Preventive suspension is justified where the employee's continued
employment poses a serious and imminent threat to the life or property
of the employer or of the employee's co-workers. Without this kind of
threat, preventive suspension is not proper. [Artificio v. NLRC, G.R. No.
172988, July 26, 2010]
The code implementing rules provide that no preventive suspension
shall last longer than thirty (30) days. After that period the employer
shall reinstate the worker in his former position of suspension , provided
that during the period of suspension, he pays the wages and other
benefits due to the worker . Otherwise beyond this maximum period
amounts to CONSTRUCTIVE DISMISSAL.
CONSTRUCTIVE DISMISSAL
is cessation of work because continued employment is rendered
impossible, unreasonable or unlikely; when there is a demotion in rank
or diminution in pay or both; or when a clear discrimination, insensibility,
or disdain by an employer becomes unbearable to the employee.
The test of constructive dismissal is whether a reasonable person in the
employee's position would have felt compelled to give up his position
under the circumstances.
The law recognizes and resolves this situation in favor of employees in
order to protect their rights and interests from the coercive acts of the
employer. In fact, the employee who is constructively dismissed may be
allowed to keep on coming to work. [McMer Corp., Inc. v. NLRC, G.R.
No. 193421, June 4, 2014]

Situation
Validity of Dismissal
Just or Authorized Cause
+ Due Process
Valid
authorized cause
No Just or Authorized Cause
+ Due Process
separation pay.

Liability of ER
No liability.
Separation pay only in

Invalid

Reinstatement or
If reinstatement not possible,

+ full backwages
No Just or Authorized Cause
+ No Due Process
pay.

Invalid

Reinstatement or separation
If reinstatement not possible, +

full backwages
Just or Authorized Cause
+ No Due Process
procedural infirmity.

Valid

Liable for damages due to

Separation pay if for

authorized cause
Non-Compliance with Due Process Requirements
Before the Agabon case, the doctrine in Serrano v. NLRC was followed. It states
that termination due to authorized cause without giving the notice required

under the Labor Code is not a violation of due process. It is valid although
declared irregular/ineffectual. He shall however be entitled to SEPARATION PAY
AND BACKWAGES
AGABON V. NLRC 17 November 2004 Modifies SERRANO Case.
Dismissal for a an authorized or just cause, without procedural due process is not
an illegal dismissal which warrants backwages; employee entitled only to
nominal damages.
The Court interpreted Art. 279 to the effect that termination is illegal only if it is
not for any of the justified or authorizes causes provided by law. Payment of
backwages and other benefits, including reinstatement, is justified only if the
employee was unjustly dismissed.
The Court decided to follow WENPHIL CORP. v. NLRC that where the dismissal is
for a just cause, the lack of statutory due process should not nullify the dismissal
or render it illegal. However, the employer should indemnify the employee for
the violation of his rights. The indemnity should be stiffer than that provided in
WENPHIL to discourage the practice of dismiss now pay later.
The indemnity should be in the form of nominal damages, which is adjudicated
in order that a right of plaintiff, which has been violated by the defendant, may
be vindicated.