Security of tenure as the starting point

Philippine labor law treats employment as a protected relationship. The Constitution mandates protection to labor and security of tenure, and the Labor Code operationalizes that policy by allowing termination of employment only on lawful grounds and only with required procedure. The legality of a dismissal is evaluated through two distinct lenses:

Substantive validity – Was there a lawful ground to terminate?
Procedural validity – Were the legally required notices and opportunity to be heard observed?

“Termination without due process and notice” usually refers to failure in the second lens, but in practice it is often paired with (or used to disguise) failure in the first.

What counts as “dismissal” for illegal dismissal purposes

Illegal dismissal is not limited to a formal termination letter. It can arise from:

Actual dismissal: removal from payroll, barred entry, written termination, sudden deactivation of work access, or being told not to report for work.
Constructive dismissal: the employer makes continued employment impossible, unreasonable, or humiliating (e.g., demotion with pay cut, harassment, punitive transfer, indefinite “floating status,” forced leave without basis).
Forced resignation: resignation obtained through coercion, intimidation, or deception—treated as dismissal.

Situations that are not automatically dismissal (but can become one if misused) include: end of a genuine project, expiration of a bona fide fixed-term contract, or probationary separation for failure to meet standards made known at engagement.

The legal grounds for termination (substantive due process)

Termination must rest on a recognized ground, generally grouped into:

1) Just causes (employee fault)

Examples include serious misconduct, willful disobedience, gross and habitual neglect, fraud or breach of trust, commission of a crime against the employer or its representatives, and analogous causes.

2) Authorized causes (business reasons)

Common authorized causes include redundancy, retrenchment to prevent losses, closure/cessation of business, and installation of labor-saving devices.

3) Disease

Termination may be permitted when properly supported by the required medical certification and statutory safeguards.

If no valid ground exists, termination is illegal, regardless of procedure.

Due process requirements: the rules differ by ground

Philippine law does not apply a single “notice” template. The required process depends on whether the termination is for employee fault (just cause) or for business/health reasons (authorized cause/disease).

I. Just cause termination: the Two-Notice Rule (and real opportunity to be heard)

For dismissals based on alleged employee misconduct or fault, jurisprudence requires two written notices and an opportunity to explain.

1) First written notice (Notice to Explain / Charge Sheet)

This notice must:

State the specific acts or omissions complained of (with enough particulars: dates, events, circumstances).
Identify the rule/policy violated or the statutory ground invoked.
Inform the employee that dismissal is being considered (or other penalties).
Give a reasonable opportunity to respond—commonly understood as at least five (5) calendar days from receipt.

A vague accusation (“policy violation,” “loss of trust,” “insubordination”) without particulars is procedurally weak and often fatal to the employer’s defense on procedure.

2) Opportunity to be heard (conference/hearing when needed)

A full trial-type hearing is not always mandatory, but the employee must be given a meaningful chance to explain and present defenses. A hearing or conference becomes especially important when:

The employee requests it, or
There are material factual disputes, or
Credibility assessment is necessary.

A “paper process” that is purely perfunctory—where the decision is effectively predetermined—undermines due process compliance.

3) Second written notice (Notice of Decision)

After evaluating the employee’s explanation and evidence, the employer must issue a second notice that:

States the decision (dismissal or lesser penalty),
Explains the reasons and factual basis, and
Specifies the effective date.

Issuing only one notice that simultaneously charges and terminates (“You are terminated effective immediately”) commonly violates the required sequence.

II. Authorized cause or disease termination: the 30-day notice requirement (plus separation pay rules)

For terminations not based on employee fault—such as redundancy, retrenchment, or closure—the law emphasizes advance notice and financial cushioning, not a disciplinary hearing.

1) Written notices to BOTH the employee and DOLE

The employer must serve:

A written notice to the affected employee(s), AND
A written notice to the Department of Labor and Employment (DOLE)

at least thirty (30) days before the intended termination date.

Failure to notify DOLE is a frequent procedural defect.

2) Separation pay (statutory minimums)

Separation pay is generally required for authorized causes, with varying formulas, commonly summarized as:

Redundancy / installation of labor-saving devices: at least one (1) month pay or one (1) month pay per year of service, whichever is higher.
Retrenchment / closure not due to serious losses: at least one (1) month pay or one-half (1/2) month pay per year of service, whichever is higher.
Closure due to serious business losses: separation pay may not be required if losses are properly proven and closure is in good faith.

3) Disease termination specifics

Disease termination typically requires medical certification from a competent public health authority supporting the statutory standards (commonly framed around whether the disease is not curable within six months even with proper treatment and continued employment is prohibited/prejudicial).

III. The core doctrine: consequences depend on whether the ground is valid

This is the most important practical point.

A) No valid ground + no due process = Illegal dismissal

When the employer fails to prove a lawful cause (or the alleged authorized cause is a sham), the termination is illegal. The usual remedies include:

Reinstatement without loss of seniority rights, and
Full backwages from dismissal until actual reinstatement.

If reinstatement is no longer viable (e.g., closure, abolition of position, strained relations in appropriate cases), separation pay in lieu of reinstatement may be awarded, typically alongside backwages.

Depending on circumstances, additional awards may include:

Moral and exemplary damages (usually when dismissal is attended by bad faith, oppression, fraud, or malice),
Attorney’s fees (often when the employee is compelled to litigate to recover lawful entitlements).

B) Valid ground exists but procedure was defective = Dismissal may be upheld, but employer pays nominal damages

Philippine jurisprudence recognizes that where a just cause or authorized cause is proven, a procedural violation does not necessarily convert the dismissal into illegal dismissal. Instead, the employer may be ordered to pay nominal damages to vindicate the violated right to statutory due process.

Common benchmarks in decisions:

₱30,000 nominal damages for procedurally defective just cause terminations (Agabon framework),
₱50,000 nominal damages for procedurally defective authorized cause terminations (Jaka framework).

These figures function as well-known guideposts, though case-specific application can vary.

Substantive requirements often litigated in “no notice” cases

Many terminations are attacked not only for lack of notice, but because the employer’s chosen ground does not meet substantive standards.

1) Redundancy (authorized cause)

Typically requires proof of:

The position is truly superfluous,
Good faith in abolishing it,
Fair and reasonable criteria if only some employees are selected,
30-day notices to employee and DOLE,
Separation pay.

Red flags include hiring replacements after “redundancy” or abolishing only one employee’s position without rational criteria.

2) Retrenchment

Commonly requires proof of:

Actual or imminent substantial losses (often proven by credible financial evidence),
Necessity and good faith,
Fair selection criteria,
30-day notices,
Separation pay.

3) Loss of trust and confidence (just cause)

Requires that:

The employee holds a position of trust (or handles matters where trust is integral), and
The alleged breach is work-related and supported by substantial evidence—not mere suspicion.

“Loss of trust” used as a shortcut to bypass the two-notice rule is highly vulnerable.

Burden of proof and the evidence standard

In illegal dismissal cases, the employer bears the burden to prove the legality of termination. The standard is substantial evidence—more than bare allegation, less than proof beyond reasonable doubt.

Procedural compliance is often proven (or disproven) through:

Properly served notices with proof of receipt,
Investigation records and minutes,
Affidavits and documentary support (audit trails, incident reports, CCTV logs),
Evidence showing a real chance to explain was given.

Where cases are filed and how they move

Termination disputes commonly proceed through:

SEnA (Single Entry Approach) conciliation-mediation, then
A complaint before the Labor Arbiter (NLRC) for illegal dismissal and money claims,
Appeal to the NLRC, then judicial review (typically via Rule 65) to the Court of Appeals, and potentially the Supreme Court.

A key practical feature: when reinstatement is ordered by a Labor Arbiter in an illegal dismissal case, reinstatement is generally treated as immediately executory pending appeal, often through actual or payroll reinstatement.

Prescriptive periods (deadlines)

Commonly applied rules include:

Illegal dismissal actions are often treated as an injury to rights, typically prescribing in four (4) years from dismissal (Civil Code principles).
Pure money claims under the Labor Code generally prescribe in three (3) years, though money claims are frequently litigated alongside illegal dismissal claims.

Practical indicators of termination “without due process and notice”

Just cause procedural red flags

No written notice to explain.
Notice lacks specifics (no dates, acts, or policies).
Employee given an unreasonably short time to respond.
No second notice of decision.
Termination already imposed in the first notice (“effective immediately”).

Authorized cause procedural red flags

Immediate termination for redundancy/retrenchment with no 30-day notice.
No DOLE notice.
No written plan, no selection criteria, no separation pay computation.

Constructive dismissal red flags

Demotion with pay cut without clear, lawful basis.
Punitive transfer intended to force quitting.
Indefinite “floating status” used as pressure.
Harassment or retaliation for asserting labor rights.

Bottom line

In Philippine labor law, termination “without due process and notice” is not a single legal conclusion but a pathway to liability that depends on the underlying ground:

No valid ground → illegal dismissal, with reinstatement/backwages as the standard remedy framework.
Valid ground but defective procedure → termination may be upheld, but the employer is typically liable for nominal damages for violating statutory due process requirements.