Verbal notice of dismissal to employee not enough

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Persida Acosta

Dear PAO,
My cousin suffers from a sexually-transmitted disease. Despite having told his employer about it, he was still allowed to continue his work as an office clerk. As months passed, however, he frequently felt tired and there were instances when he fainted at work. His employer brought him to an authorized physician who examined and evaluated him. He was told that he needed extensive treatment as his condition cannot be cured within the next six months. After bringing this matter to his employer, he was verbally told that they need to terminate his services and that he does not need to worry because he will be paid an appropriate separation pay.

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Is this verbal termination valid? My cousin is still very confused. He is willing to take time off from work to take care of himself, but he really thinks it is not proper for his employer to just terminate his services just like that. Please advise us on this matter.
Sarah

Dear Sarah,
Our laws provide for just and authorized causes for the termination of an employment contract, and disease is one of the authorized causes mentioned under the law. The following requisites, however, must be present in order to declare an employee’s termination because of a disease valid: (1) An employee is found to be suffering from any disease; (2) His continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees; (3) There is a certification by a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six months even with proper medical treatment; and (4) He is paid a separation pay equivalent to at least one month salary or to one-half month salary for every year of service, whichever is greater, a fraction of at least six months being considered as one whole year (Article 284, Labor Code of the Philippines in relation with Book 6, Rule 1, Section 8, Labor Code Implementing Rules and Regulations or IRR).

Furthermore, the employer must comply with the “twin notice rule,” and that is, he must give the concerned employee a written notice as to the cause or basis on which his impending dismissal rests and a reasonable opportunity to address the same. Thereafter, the employee must be notified of the employer’s final decision as to his termination. This is in line with the ruling of the Supreme Court in the case of Deoferio vs. Intel and/or Mike Wentling (G.R. No. 202996, June 18, 2014; ponente, former Associate Justice Arturo Brion) which states:
“x x x The Labor Code and its IRR are silent on the procedural due process required in terminations due to disease. Despite the seeming gap in the law, Section 2, Rule 1, Book VI of the IRR expressly states that the employee should be afforded procedural due process in all cases of dismissals.

“In Sy v. Court of Appeals and Manly Express Inc. v. Payong Jr., promulgated in 2003 and 2005, respectively, the court finally pronounced the rule that the employer must furnish the employee two written notices in terminations due to disease, namely: (1) the notice to apprise the employee of the ground for which his dismissal is sought; and (2) the notice informing the employee of his dismissal, to be issued after the employee has been given reasonable opportunity to answer and to be heard on his defense. These rulings reinforce the State policy of protecting the workers from being terminated without cause and without affording them the opportunity to explain their side of the controversy. x x x”

In the situation that you have presented, it appears that your cousin’s employer has complied with substantive due process and his legal concern lies more in the fact that he was informed of his impending termination verbally. As discussed above, such means of termination is not enough. He must be notified in writing both as to the cause of his termination and the final decision of his employer, with an opportunity to air out his defense/s.

Should his employer proceed with his termination without complying with the procedural due process of the “twin notice rule,” then he may file a labor complaint for illegal dismissal against the former.

We hope that we were able to answer your queries. Please be reminded that 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 dearpao@manilatimes.net.

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