Good day! I just want to ask your advice regarding a staff who is always on AWOL, habitual tardy, or send a text message stating various reasons from doing family obligation to just being sick.

His absences from work is really affecting our business, which I manage. Ours is just a sole proprietor type, with five employees and involved in deliveries. In this type of business, with just one absent employee, we have to cut back on orders from customers thus limiting our sales.

I have issued verbal and written memos, served suspensions but to no avail. Now, I'm looking on his deliveries if he is skimming sales remittances but I still have to check to be sure.

That employee is almost a year on our employ but given our operation is being affected, I am contemplating on terminating him on grounds of gross negligence of duty. If so, what are the right procedures of due process?

To clarify, the following should be considered in terminating the services of employees:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.[15] This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.

(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

Dear Counsels,

Thank you very much for the very detailed reply. You don't know how much I appreciate your advice. As the only one managing our family business, I am very much at a loss and can't seem to think straight due to the stress with regards to this problem. I would admit that ours is just a small business and I am in the dilemma of letting this staff go, but on the other hand, it would also take several months to find and train a replacement.

a) Just a few days ago, I have gone over his sales reports and there are some discrepancies (but I will still verify again). Should I go to court, how much evidence is needed so as not to be marked as insufficient evidence?

b) I also learned my mistake of not making a company code of conduct during the infancy of the business and preferred to issue out policies verbally, but I would religiously send out memos to the erring employees. Would that be sufficient enough in the absence of a company code of conduct (since I manage only a handful employees).

c) Are small companies (with staff less than 10 employees) have protection against erring employees?

d) Should due process is observed and finally let this employee go, will we still be subjected through hearings with DOLE?