Ample opportunity to be heard 

Every employer has the right to exercise its management prerogative in the conduct of its business affairs, and this prerogative includes the right to dismiss its employees. In the Philippines, the employer’s prerogative to terminate an employee should muster both substantive and procedural due process.

Substantive due process is met when there exists a just or an authorized cause provided under Articles 297 and 298 of the Labor Code, respectively. With respect to termination under just causes, procedural due process is hurdled when the employer complies with the twin-notice requirement, and after granting the said employee an ample opportunity to be heard.

Notably, “ample opportunity to be heard” has been the phrase used under the Labor Code, particularly Article 292 thereof, which states that “the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement the causes for termination and shall afford the latter ample opportunity to be heard x x x.”

Interestingly, however, under Section 2(d), Rule I, Book VI of the Implementing Rules of the Labor Code, a “hearing or conference” shall be observed by the employer, if only to comply with the procedural due process in termination cases. The provision reads:

“Section 2. Security of Tenure. — x x x

(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:

For termination of employment based on just causes as defined in Article 282 of the Labor Code:

x x x

(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.”

With the apparent conflict between the text of the Labor Code vis-a-vis its Implementing Rules, an employer may be confused on whether to merely grant the erring employee an ample opportunity to be heard, or to mandatorily conduct a hearing or conference to hear the employee’s possible defenses.

THE GENERAL LAW PREVAILS
In 2009, the Supreme Court had the occasion to discuss this apparent conflict in the case of Perez v. Philippine Telegraph and Telephone Co., et al. (G.R. No. 152048, 7 April 2009), where it ruled that in case of conflict between a general law and its implementing rules, the former prevails.

According to the Supreme Court, an implementing rule cannot expand nor amend the scope of the law it implements, considering that the authority to promulgate implementing rules proceeds from the law itself.

Therefore, with respect to procedural due process in termination based on just causes, granting the erring employee an “ample opportunity to be heard” satisfies the requirement of the law.

AMPLE OPPORTUNITY
What then is the yardstick of this ample opportunity to be heard given to erring employees?

According to the Supreme Court in the Perez case, the fact that it is couched in general language reveals the legislative intent to give some degree of flexibility or adaptability to meet the peculiarities of a given situation. To require a single rigid proceeding such as a formal hearing will defeat the intent of the law.

Admittedly, an ample opportunity to be heard is broad enough to substantially include a formal hearing or conference. However, this is also satisfied when the employee is given a meaningful opportunity to controvert the charges and allegations hurled against him or her, and to submit evidence in support thereof. “To be heard” does not mean verbal argumentation alone inasmuch as the employee may just as effectively be heard through written explanations, or whatever submissions where the employee may substantiate his or her defenses.

In Autobus Workers’ Union v. NLRC (G.R. No. 117453, 26 June 1998), the Supreme Court ruled that “there is no violation of due process even if no hearing was conducted, where the party was given a chance to explain his side of the controversy. What is frowned upon is the denial of the opportunity to be heard.”

Clearly, in cases of termination for just causes, it is already enough that the employee is given the chance to air his or her side, and that a formal hearing or conference, while maybe preferred and ideal, is not required.

INSTANCES WHERE A HEARING OR CONFERENCE IS MANDATORY
While the Perez case laid down the general rule that a formal hearing or conference is not required in termination cases, it also enunciated several exceptions to this rule, to wit: (i) when requested by the employee in writing, (ii) when substantial evidentiary disputes exist, (iii) when a company rule or practice requires it, or (iv) when similar circumstances justify it.

Meaning to say, if the employee himself or herself requests the management in writing that a formal hearing be conducted, if only to properly ventilate his or her possible defenses, then the employer must ensure to afford the employee a formal hearing or conference. The same can be said when substantial evidentiary disputes exist, such as when material and relevant proofs to support the allegations and defenses lie contrary to each other.

Moreover, a formal hearing is mandatory when it is provided in the company rules, or it has evolved into a company practice. It is said that for a benefit to become a company practice, such as granting the employees an opportunity to attend a formal hearing during termination cases, it must be done for a long period of time, and that it has been made consistently and deliberately. As a catch-all exception, a hearing is likewise mandatory when circumstances, similar to the recognized exceptions, are in play.

In the final analysis, both employers and employees must note that a formal hearing is not mandatory, so long as the employee is given a fair and reasonable opportunity to explain his or her defenses and controverting evidence. Unless and until the aforementioned exceptions exist, “ample opportunity to be heard” does not equate to the conduct of a formal hearing or conference.

The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or opinion.

Khen C. Aquino is an associate of the Cebu Branch of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

kcaquino@accralaw.com