HOSPITAL ARREST (Anti-Detention Of Patients Act)

By Siesta-friendly

Like Mary and Joseph looking for a place to give birth, Eleanor and Edgar approached several government hospitals for Eleanor’s premature delivery.  And like Mary and Joseph who were several times turned away, Eleanor and Edgar “were refused admission for some reason or other. Some facilities claimed they did not have incubators for premature babies.”[1]

We still cannot understand how hospitals, especially government hospitals, continue to turn away people in need of medical help.  We do not think that’s mere ignorance of the almost 15-year old law that is Republic Act No. 8344 (“An Act Penalizing The Refusal Of Hospitals And Medical Clinics To Administer Appropriate Initial Medical Treatment And Support In Emergency Or Serious Cases …), we think its just the blatant disregard of it.

But that is not why we are making this post since we’ve already discussed RA 8344 previously - it’s because Eleanor and Edgar’s plight did not end upon the birth of their boy.  While Mary and Joseph were given gifts by wise men, Edgar and Eleanor were given a ransom demand by not so wise men. The hospital told them that they had to pay “more than P700,000 for the delivery and care of [their] premature baby.”[2] 

Eleanor is a golf caddie while Edgar is an unemployed former grass cutter.  So, from the time of their son’s birth on July 19, 2011 until November 25, 2011 – over 4 months - Baby John stayed inside the University of Perpetual Help - Dr. Jose Tamayo Medical Center in Biñan (UPH), Laguna not because he was sick but because his parents couldn’t pay the (unbelievable) P700,000.00-plus hospital bill. 

Baby John was released only on November 25, 2011after media exposure of their story and after the couple’s appeal to the Department of Health (DOH).  Pursuant to R.A. 9439 (An Act Prohibiting The Detention Of Patients In Hospitals And Medical Clinics On Grounds Of Nonpayment Of Hospital Bills Or Medical Expenses)[3], Eleanor and Edgar “signed a promissory note undertaking to pay the hospital bill in monthly installments.”[4]

Illegal Hospital Detention

We don’t have to tell you that what UPH did was wrong, at least morally. But how wrong were they, legally?

Let’s start with Section 1 of RA 9439 which states:

It shall be unlawful for any hospital or medical clinic in the country to detain or to otherwise cause, directly or indirectly, the detention of patients who have fully or partially recovered or have been adequately attended to or who may have died, for reasons of nonpayment in part or in full of hospital bills or medical expenses.

The news reports do not contain any allegation that Baby John was being held by UPH because he was still sick.  Although, it was reported that for “four months [Eleanor] was not allowed to touch or hug her baby as hospital staff said he needed intensive care because, having weighed only 1.14 kilograms at birth, he had pneumonia and pulmonary problems.”[5] That excuse seems to be a defense against Eleanor’s claim of lack of contact with her baby than a defense in favor of the baby’s detention.

Section 2 further states:

Patients who have fully or partially recovered and who already wish to leave the hospital or medical clinic but are financially incapable to settle, in part or in full, their hospitalization expenses, including professional fees and medicines, shall be allowed to leave the hospital or medical clinic, with a right to demand the issuance of the corresponding medical certificate and other pertinent papers required for the release of the patient from the hospital or medical clinic upon the execution of a promissory note covering the unpaid obligation…

Promissory Note

Unfortunately, under the circumstances, hospitals/clinics are at best left with –

1)                  A promissory note required as follows - 

The promissory note shall be secured by either a mortgage or by a guarantee of a co-maker, who will be jointly and severally liable with the patient for the unpaid obligation. In the case of a deceased patient, the corresponding death certificate and other documents required for interment and other purposes shall be released to any of his surviving relatives requesting for the same. (Section 2)

In the case of a deceased patient, DOH Administrative Order No. 2008-0001 (Implementing Rules And Regulations of Republic Act No. 9439) [6] clarifies that any of the surviving relatives who refuse to execute a promissory note shall be allowed to claim the cadaver and can demand the issuance of death certificate and other pertinent documents for interment purposes, but documents for other purposes shall be released only after the execution of a promissory note. (Part V. A. Paragraph 3)

2)                  An assignment of proceeds, as follows:

DOH AO No. 2008-0001 adds that in the case of a deceased patient and in the event that the above-mentioned documents “will be needed for the purposes of getting the benefits from the SSS, GSIS, Philhealth, insurance policies or pre-need plans, the hospital may require the execution of an assignment of proceeds up to the extent of the hospital bills or medical expenses/hospitalization.” (Part V. A. Paragraph 2)

The only other protection for hospitals/clinics is that RA 9439 does not apply to “patients who stayed in private rooms” (Section 2). So does that mean private room patients can be held by hospitals/clinics for ransom if they can’t pay?  Food for thought. 

Illegal Detention of Cadaver

Yet, despite the clear mandate of the RA 9439 and DOH AO No. 2008-0001, hospitals continue to find excuses to try and circumvent the law -

“To add insult to injury, the hospital put us through a terrible and humiliating ordeal before we were able to take my mother’s body for a proper funeral and burial. We were asked to provide collateral, postdated checks, OR/CR of vehicles or find a guarantor who will vouch for us.

Funeraria Paz arrived to take mama’s body but the hospital insisted that we needed to keep the body at Holy Trinity for “preservation” while we are negotiating the terms of the promissory note. They insisted that they weren’t holding my mom’s body, but repeatedly refused to release it. They advised us to keep the body at Holy Trinity for preservation in a fridge for a “minimal fee” of P4,000-5,000 per day.” – Account of Alva Marano-Alfonso detailing “what the Marano family went through when their beloved mother, Josephine, passed away last November 16 at age 56. The body was held for ten hours, pending down-payment of P200k. The title of their home is being demanded by the Paranaque Doctors’ Hospital as collateral — until their bills are fully settled.”[7]

DOH assistance

To help both the patients and the hospitals/clinics, the DOH is mandated to, “as far as practicable, assist patients in looking for financial assistance from government and non-government sources to settle the unpaid hospital bills or medical expenses / hospitalization expenses.  Toward this end, the DOH shall work closely with fincancial institutions like, but not limited to, [Philhealth], [PCSO], [PAGCOR], [LGUs], as well as Congress, to provide funds for this purpose. (Part V. B. Paragraph 1 c))

Although, in the case of Eleanor and Edgar, the DOH guaranteed P10,000.00 financial assistance and the PCSO guaranteed a P50,000.00 donation, the government should be made to guaranty more substantial financial assistance to indigent patients.

Liability of hospital/clinic

Any officer or employee of the hospital or medical clinic responsible for releasing patients, who violates the provisions of R.A. 9439 and its implementing rules and regulations shall be punished by a fine of not less than P20,000.00, but not more than P50,000.00, or imprisonment of not less than 1 month, but not more than 6 months, or both such fine and imprisonment, at the discretion of the proper court. (Section 3, RA 9439; Part V. B. Paragraph 3, DOH AO No. 2008-0001)

Business is business, true; but lives are lives – priceless and invaluable.  Lives are mothers, fathers, daughters, sons, relatives, friends, loved ones.  Business is just business. For a profession that deals with lives regularly and intimately, it is appalling that it should be health personnel who should treat people the worst if only to continue making money.

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[1]  Alcantara, S. R. (2011, November 20). Baby john’s plight touches netizens. Retrieved from http://technology.inquirer.net/6299/baby-john’s-plight-touches-netizens/

[2]  Supra.

[3]  April 27, 2007.

[4]  Alcantara, S. R. (2011, December 4). ‘Hostage’ baby is finally home.  Retrieved from http://newsinfo.inquirer.net/104923/hostage-baby-is-finally-home

[5]  Supra.

[6]   January 7, 2008

[7]  Villanueva-Ong, Y.  (2011, December 6).  The high cost of dying.  Retrieved from http://www.philstar.com/Article.aspx?articleId=755429&publicationSubCategoryId=64

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Say A Little Prayer: Court Forms

By Obiter07

A child gets to read over the documents her dad has in the office.  It is actually something that has to be filed in court.  He asks, “looks like you are really desperate here, Daddy.” The dad asks why does she say that and she replies, “Because you have a prayer at the end.”

If you have ever looked at pleadings or the papers that are filed in court by your lawyers, invariably the last portion has the heading “Prayer.”  Legalese is sometimes hard to understand.  It pays to have some knowledge of the forms and how they appear.

Let us have a look at the lower courts and civil cases. There are actually rules on court papers or what has been termed as “pleadings.” Pleadings contain “the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Section 1, Rule 6).

Complaint and Answer

A party’s claims (or whatever you are asking from your opponent, be it damages or requiring something to be done) are contained in the “complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention.” And the “defenses of a party are alleged in the answer to the pleading asserting a claim against him.”  In short, someone files a claim and you file an “Answer” to that claim. Thereafter, the claimant can file a “Reply” to the answer (Section 2).  It is not in the rules but lawyers then usually file a rejoinder to the reply. No lawyer worth his salt will allow the other party to have the last word.  So after the rejoinder, you get to see the “Sur-rejoinder” or a “Sur-Reply.” So even if the rules don’t expressly allow such pleadings, trust the lawyers to find something to go around them. 

Reply

A reply is “a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint (Section 10).”  So if the defendant files an Answer with new matters, the Reply is the plaintiff’s way of answering back.  However, he may choose not to, as all new matters are deemed controverted anyway.

Ad Cautelam

You will even see pleadings like “Answer Ad Cautelam” or a “Manifestation Ad Cautelam.” What are these things?  It just means that your lawyers are filing something “for caution” so as not to forestall something for you.  For example, an “Answer Ad Cautelam” may be filed if your lawyer thinks his motion for extension of time may be arbitrarily denied or if he is still questioning the jurisdiction of the court, but does not want you to be defaulted for failing to file an answer within the time allowed.  Strictly speaking, such pleadings are not expressly provided for in the Rules.

Defenses

What are the defenses you can raise?  These may either be negative or positive defenses. ‘”A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.  An “affirmative defense” is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.” These include “fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance (Section 5).  For example, a negative defense would be to denying you owe a debt to the plaintiff.  An affirmative defense would be that the cause of action on the debt has prescribed.

Counterclaim and Cross-claim

If you also have a claim against the plaintiff, then you file a counterclaim against him. “A counterclaim is any claim which a defending party may have against an opposing party. (Section 6)”    Or if you have co-defendants against whom you have a claim, then you can make a cross-claim against them. “A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant (Section 8).”  How could such a situation come about?  It could be that you are a guarantor of a debt.  If the borrower fails to pay, and you are the only one sued by the creditor, you may wish to bring in the borrower as a party to the case, against whom you will demand compensation if you are adjudged liable to pay.

Third-party Complaints

It doesn’t end with co-parties though.  Since misery loves company, then the defendant can bring in other parties by filing third party or more complaints against persons in respect of complaint. “A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.” (Section 11).  But this must be with the court’s permission.  Once this complaint is filed, then we begin with an Answer all over again."A third (fourth, etc.) party defendant may allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) party plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latter's claim against the third-party plaintiff (Section 13).”

Pleading; Form

From the pleadings contents, we go to the form. There must be a caption which “sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated (Section 1, Rule 7).

The body of the pleading “sets forth its designation (whether it an Answer or Reply for example), the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading.  It is to be divided into numbered paragraphs, “each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. There should be heading and when “two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action," of the second by "second cause of action," and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect (Section 2).”

And we come to the prayer, since the “pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. Section 2” 

The pleading must be dated (Section 2).  At the end it “must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.”  Signing is not an empty exercise. “The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.” 

While an “unsigned pleading produces no legal effect,” failure to sign is not always fatal. As “the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action (Section 3).”

A pleading may need to be verified or be under oath if required by applicable law or rules. (Section 4)   Lastly, the plaintiff or principal party has to certify that he is not engaging in forum shopping (Section 5).  What is forum shopping?

“A party is guilty of forum shopping when he repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely, by some other court. And what is truly important to consider in determining whether forum shopping exists is the vexation caused the courts and the litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different for a upon the same issues. TANTOY, SR.,  vs .
COURT OF APPEALS, ET AL. ( G.R. No. 141427 April 20, 2001)”

This is only a quick overview of the rules for civil actions.  There are particular requirements for appeals and petitions before the courts.  Nowhere in the rules is there mention that a mere letter will suffice in order to be entertained by any court.  But as at least two (2) cases will show, the Supreme Court has seen fit to do away with formalities for reasons of its own, allowing letters to re-open its decisions. It has done so when it recalled the decision rendered by the court in 2 recent cases: a labor case involving Philippine Airlines[1] and a case deciding for the constitutionality of the creation of 16 cities, after previously ruling that it was not.[2]  We can only pray that they are guided by right and reason.

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[1]  (Supreme Court recalls final ruling on PAL cabin layoffs)  Mendoza’s letter does trick; airline union outraged By Philip C. Tubeza, Philippine Daily Inquirer, October 11, 2011, ^{http://newsinfo.inquirer.net/73877/supreme-court-recalls-final-ruling-on-pal-cabin-layoffs}

[2]  SC procedures and flip-flops, GOTCHA By Jarius Bondoc, The Philippine Star, http://www.philstar.com/Article.aspx?articleId=738204&publicationSubCategoryId=64     

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Estate Planning Basics (Transferring Real Property to your Children)

By Siesta-friendly

It is not uncommon to be asked what parents can do to save on taxes when they transfer real property to their children.  There are 3 options: a) donating them, b) selling them, 3) converting them into shares of stock and transferring the shares, to their children.   

Choice c) is best made when there are several properties involved and when the parent still wants control over the properties. Although a property for shares transaction is tax-free, taxes shall be imposed once the shares are transferred to the children (but they will be lower than taxes applicable to donation or sale of property). Plus. there are compliance requirements that have to be factored in, like the periodic filings with the SEC and the BIR.

If there are only a few properties involved and the parent deems it best to already dispose of them amongst the children (provided they are already of legal age), the better alternatives are donation or sale.  The taxes payable as regards the donation or sale of real property depend on the value of the property involved. Note that since the property is now vested in the names of the children, they can do whatever they want with the property.  If they are already married, sometimes this lead to some difficulties for the donor-parents.  This is particularly so if the donees are governed by the absolute community of property regime (meaning, the wife becomes co-owner of the property) as is usually the case if they were married under the Family Code.

Consider: if the donor-parent already transfers the property where he is residing and intends to reside until his death, then he no longer has control over it once he loses ownership of it. What if the child/children mortgage the property and lose it? Parents may want to make it easy for their children once they die but they have to be practical in their own favor too while they are still alive.

Tax payable by donor of real property

Under Sec. 99 of the Tax Code, the tax shall be computed in accordance with the following schedule:

If the gift is valued:

 

Over	But Not Over	The Tax Shall be	Plus	Of the Excess Over
	P 100,000	Exempt
P 100,000	200,000	0	2%	P100,000
200,000	500,000	2,000	4%	200,000
500,000	1,000,000	14,000	6%	500,000
1,000,000	3,000,000	44,000	8%	1,000,000
3,000,000	5,000,000	204,000	10%	3,000,000
5,000,000	10,000,000	404,000	12%	5,000,000
10,000,000		1,004,000	15%	10,000,000

 

A donor has to make sure, however, that the donations do not prejudice the legitime of the other heirs.

Capital Gains Tax on Sale of Real Property

Under Sec 24 D), a final tax of 6% based on the gross selling price or current fair market value or the property, whichever is higher, shall be imposed upon capital gains presumed to have been realized from the sale, exchange, or other disposition of real property located in the Philippines.

Estate (Inheritance) Tax

Of course, if you don’t care much about your children, you can either donate everything to the government tax-free or, still leave everything to your children but let them pay for the more oppressive estate taxes under Sec. 84 -

If the net estate is:
 

Over	But Not Over	The Tax shall be	Plus	Of the Excess Over
	P 200,000	Exempt
P 200,000	550,000	0	5%	P 200,000
500,000	2,000,000	P 15,000	8%	500,000
2,000,000	5,000,000	135,000	11%	2,000,000
5,000,000	10,000,000	465,000	15%	5,000,000
10,000,000	And Over	1,215,000	20%	10,000,000

Why think of these things?  As they say, you can’t take it with you when you go, so you might as well plan for it.

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FAST PUNCHERS (The argument in favor of using Hawk-Eye type technology in boxing matches)

By Siesta-friendly

Hawk-eye camera-based technology has been used in international tennis matches (including 3 Grand Slam events) and international cricket matches for a few years now. It’s already being developed for goal scoring accuracy in football. Perhaps it should be developed in boxing as well.

At the moment, there is an existing computer technology used in boxing to determine punch statistics – called Compubox – which the owner, Bob Canobbio, describes succinctly:

“The way it works is there are two operators. They share a laptop computer. They pick one fighter each. There are four keys for each operator. Jab connect, Jab miss, Power connect, Power miss. We call a non jab a power punch for lack of a better description. I know some people who really don’t really understand the program have said in the past, “How can a guy land 300 power punches and not knock the guy out?” Well we call it power punch because it sounds better than non jab.”[1]

Bob and Nic Canobbio Ringside (from http://compuboxonline.com/bio.php)

It would seem that at least half (the Mexican half) of the people who watched the Pacquiao-Marquez boxing match last November 10, 2011 thought that Juan Manuel Marquez won the fight hands down.  Maybe even half of the Filipinos who watched the match thought the same.

Yet, many doubters would have surely changed their minds following reports of the stats revealed by Compubox below (click to enlarge):

Who knew, right?  Marquez’s punches were so convincing and yet … well the stats speak for themselves. Pacquiao’s fists are apparently too fast for the non-ringside audience.

But, because the Compubox punch stats are inputted manually, perhaps camera-based technology can be developed so as to be officially accepted in determining points as has been done in international tennis and cricket matches.  Manual punching of stats depends on the concentration of the operators in seeing the punches and their punching the correct keys. 

In any case, the judges have spoken but maybe next time, the number of punches objectively and scientifically counted will have the final say, not the pundits and armchair boxers. “The More (punches) the Manny- er!”

P.S.

Perhaps the same camera-based technology can also enlighten boxing officials to penalize boxers who – consciously or not - repeatedly try to impede their opponents by stepping on the latter’s foot while punching or avoiding them –

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[1] Perry, K. (2007, February 25). Fight report exclusive-compubox interview. Retrieved from http://www.fightreport.net/?p=958

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FIRING MISSES (Terminating Employment the Philippine Way)

By Siesta-friendly

For business folk, Philippine labor laws can be too protective of labor. And it’s not as simple as Mr. Donald Trump saying “you’re fired!”  The prime example is the provisions on security of tenure -

“ART. 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title.”

The Labor Code’s Implementing Rules specifically Rule I, Book VI add the relevant security of tenure provisions applicable to non-regular employees –

“Section 2. Security of tenure.

xxx

b)      The foregoing [security of tenure provisions in cases of regular employment] shall also apply in cases of probationary employment: Provided, however, that in such cases, termination of employment due to failure of the employee to qualify in accordance with the standards of the employer made known to the former at the time of engagement may also be a ground for termination of employment.

c)      In cases of employment covered by contracting or subcontracting arrangements, no employee shall be dismissed prior to the expiration of the contract between the principal and contractor or subcontractor as defined in Rule VIII-A, Book III of these Rules, unless the dismissal is for just or authorized cause, or is brought about by the completion of the phase of the contract for which the employee was engaged but, in any case, subject to the requirements of due process or prior notice.”

Just and Authorized Causes for Termination

So, in general, just or authorized causes naturally negate security of tenure. What are these just or authorized causes?

The just causes for terminating an employee are found in Article 282 of the Labor Code:

“ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes:

(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.”

The authorized causes are in the succeeding articles: 283 (Closure of establishment and reduction of personnel) and 284 (Disease as ground for termination).  They are as follows:

1)      installation of labor-saving devices

2)      redundancy

3)      retrenchment to prevent losses

4)      the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, or

5)      when the employee has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.

And if you fire your employee without any legal cause?

“An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.” (ART. 279.).

Backwages, mind you, can run indefinitely as long as the case is pending thereby resulting in a windfall for the employee.  Unless, of course, you’re PAL or you have PAL’s lawyer and a mere letter to the Supreme Court can change everything.

Anyway, here’s what the Supreme Court has had to expound on the matter -

“… an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement.  The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted.  In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.

           

The normal consequences of [the employee’s] illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement.  Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative.  The payment of separation pay is in addition to payment of backwages.” (Mt. Carmel College vs. Resuena, et al. G.R. No. 173076, October 10, 2007)

Due Process: 2 Written Notices + 1 Hearing rule

Finding just or authorized causes is not enough.  The laws are strict on due process and have imposed the following requirements –

“For termination of employment based on just cases as defined in Article 282 of the Labor Code:

(i)     A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(ii)   A hearing or conference during which the employee concerned, with the assistance of counsel, if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

For termination of employment as defined in Article 283 of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the termination, specifying the ground or grounds for termination.

If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the 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.” (Section 2, Rule I, Book VI, Implementing Rules of the Labor Code)

Check out how the Supreme Court strictly applied the due process rule despite the existence of sufficient cause for termination -

“.. respondent [employee] was not issued a written notice charging him of committing an infraction. The law is clear on the matter. A verbal appraisal of the charges against an employee does not comply with the first notice requirement. In Pepsi Cola Bottling Co. v. NLRC, the Court held that consultations or conferences are not a substitute for the actual observance of notice and hearing. Also, in Loadstar Shipping Co., Inc. v. Mesano, the Court, sanctioning the employer for disregarding the due process requirements, held that the employee’s written explanation did not excuse the fact that there was a complete absence of the first notice.

Second, even assuming that [employer] petitioner KKTI was able to furnish respondent an Irregularity Report notifying him of his offense, such would not comply with the requirements of the law. We observe from the irregularity reports against respondent for his other offenses that such contained merely a general description of the charges against him. The reports did not even state a company rule or policy that the employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of employment under Art. 282 of the Labor Code. Thus, KKTI’s "standard" charge sheet is not sufficient notice to the employee.

Third, no hearing was conducted. Regardless of respondent’s written explanation, a hearing was still necessary in order for him to clarify and present evidence in support of his defense. Moreover, respondent made the letter merely to explain the circumstances relating to the irregularity in his October 28, 2001 Conductor’s Trip Report. He was unaware that a dismissal proceeding was already being effected. Thus, he was surprised to receive the November 26, 2001 termination letter indicating as grounds, not only his October 28, 2001 infraction, but also his previous infractions.

xxx

WHEREFORE, the petition is PARTLY GRANTED and the September 16, 2004 Decision of the CA is MODIFIED by deleting the award of backwages and 13th-month pay. Instead, petitioner KKTI is ordered to indemnify respondent the amount of thirty thousand pesos (PhP 30,000) as nominal damages for failure to comply with the due process requirements in terminating the employment of respondent.” (King Of Kings Transport, et al. vs, Tinga, et al., G.R. No. 166208, June 29, 2007).  

So employers, be very careful how you hire and fire your people. Even with a just or authorized cause for termination and the termination is declared legal, you may still end up being penalized for not following the required manner by which the firing should have been done.  There may be no award of backwages, reinstatement or separation pay but you may still be ordered to pay nominal damages as in the case above.

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