In the Philippine jurisdiction, the transition from being a candidate to an official employee is a critical phase. A common misconception is that an employer has absolute discretion to terminate an individual during the "onboarding" or "pre-employment" stage without following due process. Under the Labor Code of the Philippines and established jurisprudence, the moment an employment contract is perfected, the worker is protected by the constitutional right to security of tenure.
1. The Perfection of the Employment Relationship
An employment relationship is typically perfected when there is a "meeting of the minds" between the employer and the employee regarding the position, the salary, and the start date.
- Offer and Acceptance: Once an applicant accepts a formal Job Offer (JO), a contract exists.
- The Onboarding Phase: If an individual has signed a contract but has not yet reached their "Day 1," or is currently undergoing orientation and training, they are already considered an employee—often a probationary employee or a regular employee with a suspensive condition.
- The Four-Fold Test: Philippine courts apply the four-fold test (Selection/Engagement, Payment of Wages, Power of Dismissal, and Power of Control) to determine the existence of an employer-employee relationship. Even in onboarding, the "Power of Control" and "Selection" are already in play.
2. Grounds for Termination During Onboarding
While an employer may terminate an employee during the onboarding or probationary period, they cannot do so arbitrarily. The dismissal must be based on:
- Just Causes (Article 297): Serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud/breach of trust, or commission of a crime.
- Authorized Causes (Article 298-299): Retrenchment, redundancy, installation of labor-saving devices, or closure of the business.
- Failure to Qualify: For probationary employees, the failure to meet the reasonable standards made known to them at the time of engagement.
Note: If an employer terminates a hire during onboarding because they "changed their mind" or found a "better candidate" without any of the above causes, it constitutes Illegal Dismissal.
3. Legal Remedies for the Employee
If a person is dismissed illegally during the onboarding process, the following remedies are available under Philippine law:
A. Reinstatement
The employee has the right to be restored to their former position without loss of seniority rights. However, if "strained relations" exist between the parties—making a working relationship no longer viable—the Labor Arbiter may award Separation Pay in lieu of reinstatement.
B. Full Backwages
This is the most significant financial remedy. The employee is entitled to backwages computed from the time of the illegal dismissal up to the finality of the decision. This includes:
- Basic Salary
- 13th Month Pay
- Allowances and other benefits (e.g., Rice subsidy, laundry allowance) provided in the contract.
C. Moral and Exemplary Damages
Damages are awarded if the dismissal was attended by bad faith, fraud, or was done in a manner oppressive to labor. Dismissing a hire during onboarding—after they may have resigned from a previous job—often qualifies as an act of bad faith if done without a valid legal reason.
D. Attorney’s Fees
In cases of illegal dismissal where the employee is forced to litigate to protect their rights, they are entitled to attorney’s fees equivalent to 10% of the total monetary award.
4. Procedural Due Process (The Twin-Notice Rule)
Even if there is a valid reason to terminate a hire during onboarding, the employer must follow the "Twin-Notice Rule":
- First Notice (Notice to Explain): Informing the employee of the specific causes for termination and giving them an opportunity to respond.
- Hearing/Conference: Giving the employee a chance to present evidence.
- Second Notice (Notice of Termination): Informing the employee of the decision after considering their explanation.
Failure to follow this procedure, even with a valid cause, makes the dismissal procedurally infirm, entitling the employee to "Nominal Damages" (usually ranging from ₱30,000 to ₱50,000).
5. Proper Venue for Filing
An aggrieved individual should file a complaint for Illegal Dismissal with the National Labor Relations Commission (NLRC).
- SENA (Single Entry Approach): Before a formal case is filed, the parties undergo mandatory mediation to reach a settlement.
- Prescriptive Period: An action for illegal dismissal must be filed within four (4) years from the time of the dismissal.
Summary Table: Rights and Claims
| Aspect | Description |
|---|---|
| Status of Hire | Deemed an employee upon perfection of the contract. |
| Primary Financial Remedy | Full backwages plus 13th-month pay and benefits. |
| Alternative to Reinstatement | Separation pay (usually one month's salary per year of service). |
| Burden of Proof | The Employer carries the burden to prove the dismissal was legal. |
| Damages | Available if the dismissal was malicious or oppressive. |