Illegal Dismissal Complaint Procedure in the Philippines
A step-by-step, 2025-ready guide for workers, employers, HR practitioners & counsel
1. What counts as “illegal dismissal”?
| Key element | Explanation |
|---|---|
| Substantive due process | The employer must show a just (Art. 297, Labor Code) or authorized cause (Art. 298-299) such as serious misconduct, redundancy, etc. |
| Procedural due process | The two-notice rule: (1) written charge-notice and at least 5 calendar days to explain; (2) written decision-notice stating the facts and legal basis (Book VI, Rule I, Sec. 2, 2019 IRR). |
| Burden of proof | Always on the employer. Failure to prove either component makes the dismissal illegal—even if only in form. |
| Constructive dismissal | Any act that forces the employee to quit—e.g., pay cuts, demotion, humiliating transfers—treated as an illegal dismissal (Jaka Food, G.R. 151378, Aug 5 2015). |
2. Prescriptive period
- Four (4) years from effectivity of dismissal (Art. 1146, Civil Code) because it is an injury to rights.
- Interrupted by the Single-Entry Approach (SEnA) request or by the filing of a complaint with the NLRC/DOLE.
3. The procedural roadmap (2025 update)
Quick view: SEnA ▶ NLRC RAB ▶ Labor Arbiter ▶ NLRC Commission ▶ Court of Appeals (Rule 65) ▶ Supreme Court
SEnA mandatory conciliation-mediation
Where: Any DOLE–SEnA desk (often within the DOLE Provincial Field Office or the NLRC’s RAB).
Timeline: 30-day non-extendible window (DO 107-10).
Outcome:
- Settlement Agreement – enforceable as final judgment; or
- Referral – if unresolved, the case is docketed with the NLRC on the 31st day without new filing fees.
Filing the complaint with the NLRC’s Regional Arbitration Branch (RAB)
- Form: NLRC-RAB Complaint Information Sheet; may e-file via NLRC e-Fil portal (pilot nationwide by 2024).
- Parties: Complainant becomes “complainant-appellant” when appealing; employer is “respondent.”
- Filing fees: ₱ 500 + 2% of monetary claim exceeding ₱ 5 000, capped at ₱ 8 000 (Sec. 4, NLRC Rules of Proc., 2022). Indigent workers may file an in forma pauperis affidavit.
- Verification & CEIS: Complaint must be verified and include the Complainant’s Email & SMS Information Sheet for electronic service.
Compulsory Conference / Mandatory Conciliation (Art. 222)
- Two settings within 10 days of raffle.
- Parties explore settlement; otherwise submit position papers with supporting evidence (e.g., employment contract, timecards, SWORN AFFIDAVITS in question-and-answer form).
Submission for decision
After position-paper period, case is deemed submitted without need for hearing unless LA calls a clarificatory conference.
Decision deadline: 30 calendar days from submission (Art. 224[b]).
Relief if illegal dismissal is found:
- Reinstatement without loss of seniority – immediately executory even pending appeal.
- Backwages – from date of dismissal up to actual reinstatement or finality of decision.
- Separation pay in lieu of reinstatement (one month per year of service) if reinstatement is impossible due to strained relations, business closure, or abolition of position.
- Damages & attorney’s fees, when warranted (e.g., Agabon rule: nominal ₱ 30 000 if only procedural due process lacking).
Appeal to the NLRC Commission (en banc or division)
- When: Within 10 calendar days from receipt (strict, non-extendible).
- How: File a memorandum of appeal + appeal fee ₱ 1 000 + legal research fee; employers must post a cash or surety bond equal to the monetary award (excluding reinstatement wages) to perfect appeal.
- Decision deadline: 20 days from docketing.
- Motions for reconsideration: Allowed once within 10 days; tolled by filing.
Judicial review
- Court of Appeals via Rule 65 petition for certiorari (special civil action – 60 days from receipt of NLRC denial of MR).
- Supreme Court review through a Rule 45 petition for review on certiorari—only questions of law.
4. Strategic notes & best practices
- Document everything early. Secure copies of termination notices, payslips, employee handbook, and correspondence before leaving the premises.
- Compute claims accurately. Include: backwages, 13th-month differential, holiday & premium pay, service incentive leave, moral/exemplary damages; interest now 6 % per annum (Nacar vs. Gallery Frames, G.R. 189871, Aug 13 2013).
- Reinstatement dilemmas. If physically returning is unrealistic, move for payroll reinstatement or outright separation pay.
- Tax treatment (BIR RMC 50-18). Backwages are tax-exempt if arising from illegal dismissal; separation pay for death, sickness or retrenchment is likewise exempt.
- Concurrent causes of action. Illegal dismissal may be coupled with wage and hour claims. Conversely, DOLE labor inspectors may cite employers for violations but cannot order reinstatement—that remains the NLRC’s exclusive domain.
- Record expungement. An employer that unilaterally dismisses but later loses must restore the worker’s 201 files and issue a Certificate of Employment that states no derogatory record.
5. Special scenarios
| Scenario | Nuances |
|---|---|
| Probationary employees | May be dismissed for failure to meet standards disclosed at hiring; otherwise illegal. |
| Project & seasonal workers | Must be let go upon project completion/end of season without need for a just cause—but dismissal during the project still needs cause. |
| Fixed-term contracts (BPO/PEZA) | The term must be genuine and not a device to defeat security of tenure (Abbott Laboratories, G.R. 170609). |
| Domestic workers (Kasambahay Law, R.A. 10361) | Complaints go first to the Barangay for mediation; only thereafter to the NLRC. |
| OFWs | File with the POEA Adjudication Office (for agency/foreign employer) or the NLRC; venue is deemed Manila; money claims are capped at 3 months of salary for unexpired fixed-term contracts (Magsaysay Maritime, G.R. 212049, Jan 5 2021). |
| Government employees | Fall under the Civil Service Commission, not the NLRC. However, GOCCs with original charters remain CSC; those without charters (e.g., PAGCOR licensees) are NLRC-covered. |
6. Common employer defenses & how they fare
- “Abandonment of work.” Must prove clear intention to sever employment and failure to report without valid cause—hard to win without prior return-to-work directive.
- “End-of-contract.” Valid only if probationary, project, or fixed-term is bona fide. Regular employees cannot be terminated merely by lapsing “project” labels.
- “Redundancy/ retrenchment.” Requires 30-day prior DOLE notice + payment of redundancy pay (one month per year or 1/2 month, respectively) + good-faith criteria in choosing who stays.
- “Serious misconduct or loss of trust.” Must be work-related, grave, and backed by substantial evidence; mere suspicion or pending criminal case is insufficient.
7. Practical timelines (illustrative)
- Day 0: Dismissal served
- Day 1-30: File SEnA Request
- Day 31: Unsettled → docketed to NLRC RAB
- Day 31-60: Pleadings & position papers
- ~Day 90: Labor Arbiter decision
- Within 10 days: Appeal to NLRC Commission
- ~Day 140: NLRC decision
- Within 60 days: Petition to CA
- 6-18 months: CA resolve; then SC if elevated (another 1-2 years)
8. Monetary computation primer
Backwages = Daily rate × 365/12 × months from dismissal to finality or reinstatement. Separation pay = Latest daily rate × 30 × Years of service (at least 6 months = 1 year). 10% attorney’s fees may be awarded to workers if legally justified.
9. Enforcement & collection
- Writ of execution issued by the Labor Arbiter or NLRC Sheriff; may garnish bank accounts, levy real/personal property, or order the bonding company to pay.
- Criminal liability: Unjust refusal to reinstate is an offense under Art. 303 (₱ 1 000-10 000 fine + imprisonment up to 3 years). Rarely enforced but available.
- Corporate officers’ liability: Directors & officers who actively participated may be held solidarily liable if the corporation is a mere business conduit (Magos v. NLRC, G.R. 236556, Mar 24 2021).
10. Recent reforms & digital practice (2023-2025)
- NLRC e-Filing & e-RAFFLE nationwide (A. M. No. 20-07-04-SC).
- Video-conference hearings may substitute clarificatory conferences if parties have bandwidth; requires joint motion.
- Online service of decisions through registered email or NLRC e-Service portal now actual service (Sec. 5-A, 2022 NLRC Rules).
- SEnA expansion to include gig-economy disputes (DO 238-24).
Final reminders
- Act within four years—delay kills claims.
- Conciliation first, litigation later—SEnA is cheap, fast, and enforces settlements like final judgments.
- Keep copies—employers usually hold the records; request them early or subpoena later.
- Consider settlement value versus years of litigation. Reinstatement can be worth pursuing, but separation pay + lump-sum backwages may give quicker closure.
Need tailored advice? Labor law nuances can pivot on small factual twists. Always consult a Philippine labor-law specialist for case-specific guidance.