Ybanez Law Offices 123, Cordova, Cebu +123-4567-890 March 16, 2023 Mr. Charles Divinagracia 345 Sunshine Street Lapu-Lapu City Dear Mr. Divinagracia: This legal opinion seeks to answer whether or not your termination was justified based on the circumstances surrounding the incident, adherence to company policies, and compliance with relevant employment laws and regulations. The Facts Per discussion in the email you have sent and presented to me, the following are the pertinent facts: You were a voice-over sales agent who worked at Sunshine BPO for over 10 years. On June 27, 2023, during a client call, the client was verbally abusive and hostile to you. In response to the client's behavior, you shouted back, deviating from your company’s protocol. Sunshine BPO's handbook categorizes talking back to clients as a major offense warranting your termination. The client complained, leading to your confrontation with your supervisor on June 28, 2023. You admitted to shouting back but you argued that it was justified due to the extreme provocation of the client, hence, it was your first incident. Despite your explanation, you received a notice of termination on June 29, 2023, citing a violation of company policy as grounds for termination. The Applicable Law The security of tenure is well-grounded in Section 1 of Article III of the 1987 Philippine Constitution which provides that: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” At its essence, due process ensures a safeguard of individual liberty that cannot be infringed upon or unreasonably limited, except for legitimate reasons Ybanez Law Offices 123, Cordova, Cebu +123-4567-890 established by law. Due process has been extended and applied to cases of unlawful termination, although notably, employers are not typically governmental entities to which these rights traditionally apply. Employers may terminate employees for either a valid or authorized reason, as appropriate. In executing this action, the employer must adhere to due process. A termination on grounds of just cause signifies that the employee has engaged in misconduct or wrongdoing. In adherence to the due process of law, Article 297 of the Labor Code of the Philippines delineates these just causes, namely: a. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; b. Gross and habitual neglect by the employee of his duties; c. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; d. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and e. Other causes analogous to the foregoing.” Therefore, for misconduct or inappropriate conduct to constitute valid grounds for termination, it must meet the following criteria: (a) it must be grave in nature; (b) it must pertain to the employee's job performance; and (c) it must demonstrate that the employee is no longer suitable for continued employment with the employer. The burden to prove that the termination of an employee was justified lies in the hands of an employer. Failure to fulfill this duty constitutes grave abuse of discretion, hence, the dismissal is deemed illegal. To fulfill this burden of proof, an employer must submit substantial evidence that is sufficient to conclude that the dismissal was justified. To give effect to this burden of proof to dismiss an employee on just cause, the employer must abide by the standards of due process. These rules of substantive due process were actually laid down under Section 5, Rule I-A, DOLE Department Order No. 147, Series of 2015) which amended Article 299(b) of the Labor Code which requires that: Ybanez Law Offices 123, Cordova, Cebu +123-4567-890 (a) a first written notice - containing the specific cause or grounds for termination under Article 297 of the Labor Code, and company policies, if any; a detailed narration of the facts and circumstances that will serve as basis for the charge; and a directive to submit a written explanation within a reasonable period; (b) after serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend himself; and (c) after determining that termination of employment is justified, the employer shall serve the employee a written notice of termination indicating that all circumstances involving the charge against the employee have been considered; and the grounds have been established to justify the severance of his employment. These established rules are also called the twin notice rules which aim to allow an employee to defend the accusation against him, akin to the due process of law. Substantially, "the law and jurisprudence guarantee to every employee security of tenure. This textual and the ensuing jurisprudential commitment to the cause and welfare of the working class proceed from the social justice principles of the Constitution that the Court zealously implements out of its concern for those with less in life." Legislative Intent Behind Article 297 of the Labor Code An employer retains the right to end an employment contract due to severe misconduct or deliberate defiance of lawful instructions by the employee regarding their work responsibilities. Workers in the Philippines are guaranteed security of tenure, meaning they cannot be terminated from their positions unless for valid or authorized reasons. According to the Labor Code, termination or dismissal of an employee can only occur for justifiable causes. It is the employer's responsibility to substantiate, among other things, that the facts align with the criteria supporting the cause cited by the company to justify the termination of employment. Ybanez Law Offices 123, Cordova, Cebu +123-4567-890 Applicable Jurisprudence Fascinatingly, Article 297 of the Labor Code was applied to the case of BICOL ISAROG TRANSPORT SYSTEM, INC., VS. ROY R. RELUCIO (G.R. No. 234725, September 16, 2020). The Bicol Isarog Transport System, Inc. case involved an employer who terminated an employee for failure to follow the company policies that posed a serious question of due process requirements in effecting the dismissal. Will this same principle apply to your case? Yes. The Supreme Court ruled that employers must ensure that proper procedures are followed to allow employees to defend themselves. In this case, was not afforded ample opportunity to intelligently respond to the accusations hurled against him as he was not given a reasonable period to prepare his defense. The employer failed to comply with procedural due process requirements, thus denying him the chance to respond to the charges against him. Analysis and Conclusion Thus, taking into consideration the legislative intent and applicable jurisprudence, Article 297 applies to your case. Your company coherently alleged that shouting back at your client is a “violation of a major offense in the company handbook”. Such action may constitute misconduct. In the case of Adamson University Faculty and Employees Union v. Adamson University, misconduct is defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment. In other words, misconduct is not considered serious or grave when it is not performed with wrongful intent. The Supreme Court ruled in the Adamson case that serious misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 297 of the Labor Code, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent. Ybanez Law Offices 123, Cordova, Cebu +123-4567-890 To determine whether it is serious misconduct that warrants your dismissal will depend on the context as to why you talked back against your client. Based on the discussion that you presented, you talked back only because you cannot handle the provocation of your client anymore. There was no showing that you had a personal vendetta against your client. Moreover, your subsequent acts of admitting and apologizing for your mistake and your mere expression of not doing the same infraction again in the future constitute you had no ill motive against your client. Therefore, there is no misconduct to speak of. There was just an error of judgment on your part. However, your company still dismissed you not on justifiable grounds enumerated under paragraph (a) of Article 297 of the Labor Code. An employee must be dismissed or terminated by their employer based on just cause. However, to effect a valid dismissal on the grounds of a just cause, an employer has the burden of proving that an employee has been served two notices: First Written Notice: Provide a written statement outlining the reasons for termination and allowing the employee a fair chance to explain their side. Second Written Notice: Inform the employee that, after a thorough review of the situation, sufficient evidence has been found to support their termination. In your case, you were not given the first notice to inform you of the specific ground that would warrant your termination. Your employer has the burden of proving the allegation therein. In addition, your employer did not also allow you to hear, explain, and defend your side before they condemn. Furthermore, you were not given a notice to establish justifiable grounds which would warrant your dismissal or termination because, again, you were given a chance to be heard. In this case, there is nothing to establish to warrant your dismissal or termination. Therefore, your termination or dismissal was not justified, it is invalid. I am confident that the said interpretation would prevail in court. Otherwise, that would result in absurdity and injustice. The consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. The employer must affirmatively show rationally adequate evidence that the dismissal was for Ybanez Law Offices 123, Cordova, Cebu +123-4567-890 justifiable cause (FUJITSU COMPUTER PRODUCTS CORPORATION OF THE PHILIPPINES and ERNESTO ESPINOSA vs. THE HONORABLE COURT OF APPEALS, VICTOR DE GUZMAN and ANTHONY P. ALVAREZ, March 31, 2005, G.R. No. 158232). Recommendation According to Article 279 of the Labor Code, if an employee is unfairly terminated, they have the right to be reinstated without losing their seniority and privileges. Additionally, they are entitled to receive full back wages, including allowances and other benefits, from the moment their compensation was withheld due to the illegal dismissal until they are reinstated. These measures uphold the worker's constitutional right to security of tenure. Your illegal dismissal or termination was an unfair labor practice. Unfair labor practices, as outlined in Article 259 of the Labor Code, encompass various actions that employers are prohibited from engaging in, including interference with employees' rights to self-organization, discrimination in employment conditions to influence union membership, and failure to adhere to collective bargaining agreements. These practices infringe upon workers' constitutional rights to organize themselves and disrupt harmonious labor-management relations. I recommend that this action be referred to Labor Arbiters pursuant to Articles 263 and 264 of the Civil Code. As provided in the case of Adamson, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary, and other forms of damages, attorney's fees, and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision. I trust that I have addressed your legal inquiries satisfactorily. Please be aware that my current viewpoint is solely based on the information and documentation presented to us. Should there be any supplementary facts or details that were not taken into account in forming this opinion, I retain the right to revise my stance accordingly.
