Dismissal of employee for just cause but without proper notice

To dismiss an employee, the law requires not only the existence of a just and valid cause but also enjoins the employer to give the employee the opportunity to be heard and to defend himself.

To dismiss an employee because of abandonment, the following requisites must concur to constitute abandonment: (1) failure to report for work or absence without valid reasons; AND (2) a clear intention to sever employee-employer relationship; the latter being the more determinative factor.

The procedure for terminating an employee is found in Book VI, Rule 1, Section 2(d) of the Omnibus Rules Implementing the Labor Code.

In cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to follow the Wenphil doctrine which held that the dismissal was for just cause but still imposing sanctions on the employer.

This is to avoid the absurd situation where there is a just or authorized cause for dismissal but a procedural infirmity invalidates the termination.

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. But the employer should indemnify the employee for the violation of the latter's statutory rights, as ruled in Reta vs. NLRC (G.R. No. 112100 May 27, 1994).

The indemnity to be imposed should be stiffer to discourage the abhorrent practice of "dismiss now, pay later" which the Supreme Court sought to deter in the Serrano ruling.