Twin Notice Rule in Labor Proceedings

Specifically, for procedural due process, two written notices must be given to the employee before he may be validly terminated for a just cause under Article 297 of the Labor Code. ^[1]

The first written notice must specifically state the following:

1. 1. The ground under the said just causes or the company policy he violated; ^[2]
   2. The specific facts and circumstances as the basis of the just cause or company policy he violated. Note a general description of the alleged violation is not enough; ^[3]
   3. A directive that the said employee is given at least five (5) calendar days, from receipt of the first notice, to submit a written explanation to address the alleged violation he committed. ^[4]

The period given to the employee to explain his side must not be less than five (5) calendar days and starts from the day he receives the first written notice. The first written notice must be personally served to him, or it must be sent to his last known address. ^[5]

Moreover, the first written notice must not merely state vague charges against the employee. It must state the specific rule or policy that the employee allegedly violated. In Reyes v. Rural Bank of San Rafael Inc. et al., ^[6] the Supreme Court found that the employee was illegally dismissed because it could not ascertain the grounds on which the charges were based. The show cause order did not specify which rule or policy he allegedly violated. Hence, procedural due process was not complied with. ^[7]

Once the employer decides that said employee must be terminated and after the employee is given the opportunity to be heard, it must send a second written notice stating the following:

1. That all the factual circumstances surrounding the alleged violation have been considered; ^[8] and
2. The grounds relied on for the charges against him have been established which justifies the termination of his employment. ^[9]

Both the first and second written notices are related to each other. The grounds stated in the first written notice must be the same grounds on which the second written notice is based. The Supreme Court ruled that “an employee may be dismissed only if the pre-dismissal notice were the ones cited for the termination.” ^[10]

While there is no required period for the sending of the second written notice to the employee, it must still be personally served to him or to his last known address.

Apart from the requirement of two written notices, an employer must also give the employee an ample opportunity to be heard. ^[11] This includes the conduct of a hearing or conference, or another fair and reasonable way for the employee to be heard, where the employee can address the charges against him and submit evidence, if any. While a formal hearing or conference is not always required, it becomes compulsory when the employee, in writing, requests the same or if it is ingrained in company policy or company practice. ^[12] During the said hearing or conference, the employee may seek a counsel if he opts to do so. 

While there could be a valid reason as to why the said employee is terminated, specifically that the employee was terminated for a just cause, the employer can still be liable for nominal damages if it fails to comply with the two-notice rule or if it fails to provide procedural due process. In Agabon v. NLRC, ^[13] the Supreme Court ruled that the employee was still illegally terminated even if it was for a just cause since the employer did not observe the twin notice requirements under the law. Hence, the employer was ordered to pay nominal damages to the employees concerned. ^[14]

The twin-notice requirement stems from a person’s constitutional right to be heard. It cannot be conveniently overlooked by employers, even if it is legally justified to terminate the employee concerned. While every employer has the right to decide who it can continue to employ, this right is not absolute. Both employers and employees are protected and limited by Philippine laws.

Footnotes:
^[1] LABOR CODE, Art. 297.
^[2] Department of Labor and Employment Department Order [DOLE D.O.] No. §5.1 (a).
^[3] Id.
[4] Id.
[5] Id.
[6] Reyes v. Rural Bank of San Rafael (Bulacan) Inc. et al., G.R. No. 230597, 23 March 2022.
^[7] Id.
^[8] DOLE D.O. No. §5.1 (c).
^[9] Id.
[10] Erector Advertising Sign Group Inc. and Amoroto v. NLRC, G.R. No. 167218, 2 July 2010.
^[11] DOLE D.O. No. §5.1 (b).
^[12] Id.
^[13] Agabon v. NLRC et al., G.R. No. 158693, 17 November 2004.
^[14] Id.