Dear PAO,
Is the requirement of due process in dismissal of employment cases complied with if the same is done through a text message? My nephew presented the text messages he received from his boss informing him that he no longer need to report for work and instructing him to report to the HR Department to process his clearance and backpay. According to his boss, as a probationary employee, he doesn’t enjoy security of tenure.
Dante
Dear Dante,
For brevity, permit me to jointly discuss the answers to your questions for being interrelated. Please be advised of the case of Moral v. Momentum Properties Management Corporation (GR 226240, March 6, 2019) penned by Associate Justice Antonio Carpio, where the high court speaks of probationary employment, viz.:
“A probationary employee is one who is placed on trial by an employer, during which the latter determines whether or not the former is qualified for permanent employment. By virtue of a probationary employment, an employer is given an opportunity to observe the fitness and competency of a probationary employee while at work. During the probationary period of employment, an employer has the right or is at liberty to decide who will be hired and who will be denied employment.
“The essence of a probationary period of employment lies primordially in the purpose or objective of both the employer and the employee during such period. While the employer observes the fitness, propriety, and efficiency of a probationary employee, in order to ascertain whether or not such person is qualified for regularization, the latter seeks to prove to the former that he or she has the qualifications and proficiency to meet the reasonable standards for permanent employment.” (Underscoring Supplied)
In the same case, the Supreme Court reiterated that even a probationary employee enjoys security of tenure:
“A probationary employee enjoys security of tenure, although it is not on the same plane as that of a permanent employee. Other than being terminated for a just or authorized cause, a probationary employee may also be dismissed due to his or her failure to qualify in accordance with the standards of the employer made known to him or her at the time of his or her engagement. Hence, the services of a probationary employee may be terminated for any of the following: (1) a just cause; (2) an authorized cause; and (3) when he or she fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer.” (Emphasis and underscoring supplied)
In connection with the above-mentioned, Section 6(d), Rule I, Book VI, as amended by Department Order No. 147-15, of the Omnibus Rules Implementing the Labor Code of the Philippines (Labor Code) provides the following:
“(d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee.”
Stated otherwise, an employer is mandated to comply with two requirements when dealing with a probationary employee: (1) the employer must communicate the regularization standards to the probationary employee; and (2) the employer must make such communication at the time of the probationary employee’s engagement. If the employer fails to abide by any of the aforementioned obligations, the employee is deemed as a regular, and not a probationary employee.
Take note also that Section 2, Rule I, Book VI, as amended by Department Order 147-15, of the Omnibus Rules Implementing the Labor Code governs the procedure for the termination of a probationary employee:
“Section 2. Security of Tenure. If the termination is brought about by the x x x failure of an employee to meet the standards of the employer in case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.”
In a nutshell, the foregoing rule requires a written notice and not a mere text message. Precisely, as in the words of the Supreme Court in Moral v. Momentum Properties Management Corporation:
“A perusal of the records reveals that petitioner’s dismissal was effected through a series of text messages from Tungol, instead of the abovementioned mandated procedure. As correctly pointed out by the Court of Appeals, the NAWOL issued by Ocampo was nothing more than an afterthought, considering it was furnished to petitioner on 7 January 2014 or five days after she was informed of her dismissal. Hence, in view of the procedural infirmity attending the termination of petitioner, respondent is liable to pay nominal damages.
“In the case of Agabon v. National Labor Relations Commission, the Court pronounced that, where the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal, or render it illegal or ineffectual. Nevertheless, the employer should indemnify the employee for the violation of his statutory rights. The violation of the employee’s right to statutory due process by the employer warrants the payment of indemnity in the form of nominal damages.” (Emphasis and underscoring supplied)
In sum, even a probationary employee like you enjoys security of tenure and may only be terminated on the basis of the above-enumerated grounds, i.e. through a just cause; an authorized cause; and when he or she fails to qualify as a regular employee in accordance with the reasonable standards. Moreover, for the latter instances — an employer must observe procedural due process, which requires a written notice. As such, a mere text message as a notice would not suffice, and may subject the erring employer to pay nominal damages for violating its employee’s right to statutory due process.
We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]
