Terminated due to "Just Cause"! I think it's "Illegal Dismissal" - whad'ya think, lawyers?

Hello lawyers and law student in here...

I'm just helping my friend out as she do not have any PC at her house and she would like me to ask for any legal help as possible during this holiday season.

Let's start by naming my friend "Candy" and her email address on her resume is stork@yahoo.com (example only)given to her employer 3 years back. Here is the story.

Few years back Candy created a username "Stork" online on WEBSITE-A and WEBSITE-B basically it is used just to sell stuff online. Off course her cellphone number is also posted together with her email address. Then one day a same username "Stork" was found on WEBSITE-C. According to Website-C "Stork" is a username owned by 2-3 people according to the users of "Stork" on WEbsite-C. Also, the users of "Stork" on Website-C they are actually talking re the bad stuff that is going on with their company. People are just writing re their opinions, there are users that is pro-management and users that is anti-managment. People are just arguing re their own opinions.

One day a guy with a username "A-ho" (example only) joined the forum and started to get on everyone's nerve. Basically he is a pro-management and an example of his posts are:

- Mga walang kwenta kayo sa company kaya di kayo binigyan ng increase.
- Di nyo ba naisip na hindi kayo importante, kaya na reclass kayo from band 3 to band 2 at wala na kayo increase..
- basta ako meron increase!! Nyenenenye...

While people do not attend nor quote his stupid remarks, he started to pick on the username "Stork". First he posted my friend Candy full name on a public forum, humiliate her by posting piggy pictures on the same forum and even threat her "Bilang na araw mo". Again, nobody care about his posts. He keeps doing that for a week and off course Candy is fully aware about this kasi naman the forum is very very famous and someone already told her about the posts against her online. At the same time, we encourage Candy not to take on him as sayang lang oras nya sa mga walang kwentang bagay and maybe he will just stop. But NO!!! A few days later, he started to dig up the username online (probably do a search on yahoo or Google) and started to make people believe that the username "Stork" is the same person as WEbsite A&B. Again, nobody really care about his personal attacks towards Candy and he got banned on Website-C.

We thought that all the harassment are done and over but the guy created another username and threat my friend "Bilang na Araw mo, CANDY!". Later we found out that A-HO wrote an anonymous letter to our company management as an anonymous concerned employee under his username A-HO. Funny is that the management entertained his malicious email and started an investigation.

A few days later Candy was called by the HR and she was given a "Notice to Explain" aka NTE regarding her actions online. According to Candy, she told us that first she refused to be given the NTE because the complaint came from an anonymous person. The HR (who is the legal counsel of the company) told her that anonymous complaints are allowed in the company. Ah What?!!! Again, she was angered as to why only investigate her as they should also do the same to A-HO. Clearly, if the HR investigated they would know that A-HO should be the one sued for libel. According to Candy she was forced to sign the NTE as no matter how she tried to explain, the legal guy in the company just keeps cutting her by telling her that "Don't waste your time explaining now and just sign the NTE and give us an explanation in 5 working days". Can you believe that?!! So what Candy thinks at that time that A-Ho is part of the management.

After she was forced to sign the NTE, Candy consulted her lawyer friend and her lawyer helped her wrote the explanation to her NTE. Since she allowed me to help her seek legal advice as she don't have a PC nor internet at home, she gave me a copy of her answer to the NTE:


1. This is in reply to the Notice to Explain dated 1 December 2008 and received by the herein employee on even date.
2. In the aforesaid notice, I was tasked to explain to an Incident Report received by Ms. John Doe on 27 November 2008 for violation of Section F.6.19 of CODE.
3. Below is my explanation voluntarily given and duly signed:
First and foremost, I vehemently deny that I am the user of the name “Stork nor Queenstork” as stated in the incident report. A careful perusal of the post messages that was given as basis for filing a complaint against me would clearly reveal that there was no name mentioned in all of the posts that was posted. Just to explain, internet access is readily available to millions of people, blogging for one has been prevalent in all internet sites. Anyone can create his/her own email address and join any forum without knowing their true identity. To make matters worse is that any person can post his/her opinions regarding anything without limitations.
Further, it is a basic right of any people afforded by the fundamental law of the land to know the identity of the person accusing someone. But as to the Notice to Explain given to the undersigned the case was based on a letter coming from a certain person under the name “A-HO” which did not indicate his/her true identity. The problem with this is that any person can just file a frivolous case against anyone base on hearsay. No one can verify the veracity of the complaint nor ascertain the identity of the accuser. The person being accused cannot defend his/her self if he/she cannot identify his/her accuser.
An extensive scrutiny on the notice to explain coming from Mr. Tsuper’s will show a patently false accusations and fabricated facts.
One, they have already branded me guilty even before they filed the notice to explain. Statements like “Available records also revealed that you have provided your real identity in the forum as the person behind the alias (Stork)”. This is a sweeping statement which is not supported by evidence, if it is true that I am such person, the complainant should be prudent enough to include his/her evidence and not by mere statement.
Second, the complainant stated that there was a preliminary investigation conducted, but findings of such preliminary investigation were never furnished to the undersigned so that she be apprised of the charges being hurled against her. Everything was based on the forum posting to which we all do not know the identity of the person behind it. It will again fall into hearsay.
Third, in the statement “It is notable that you were previously coached by your manager about this incident and were advised to go to the proper forum to discuss your concerns. Likewise, on October 2008, you were told to stop posting illicit messages in the public forum, but you ignored your immediate superior, you continued to spread false and damaging information about your employer” This incident of being coached by my manager never happened, there was no instance wherein my manager told me about any of these. My worry is that, how come my manager would believe that I was the person behind all of these without having confronted me in person. Wherein fact, he has the power and can always reprimand my performance in the company. His statements in this notice to explain would show that he is the one complaining as would clearly embodied in his statements.
Lastly, it is clear that I am being single out by the company as the person behind the statements even prior to this notice to explain. I believe there are persons behind this harassment being hurled against me to which I am very saddened having worked with the company for almost 4 years.
I cannot help myself to be disappointed how a multi-million company can be persuaded by an anonymous letter with an anonymous sender to file a case against their employees. I am also disappointed that my superiors entertained such complaint without having known the identity of the person accusing. This is a negative precedent to the company and employees.
Going further, I would like to emphasize that I was tasked to explain my alleged actions in violation of Section F.6.19 but in the reply/answer form, it was written and intended for violation of Section F.5..10 of CODE and that the alleged Section that was violated was not even contained in the Notice to Explain (NTE).
Furthermore the CODE being cited is too general, no specific violations were mentioned in the NTE. Section F.19 of CODE was not even included in the NTE. This is not proper notice as mandated by the Labor Code and the Rules Implementing Book VI of the Labor Code and Supreme Court decisions on two notice rule as a procedural requisite to Article 282 of the Labor Code on Termination by the Employer or just causes.
Be that as it may, this statement is very categorical and needs no further explanation. The Management of **** need not entertain this malicious complaint against me.
To reiterate, there are millions of people that are registered in the internet and close similarities as to the name being used is very common. These pieces of evidence linking me with “Stork” is wanting and bereft of substance. Again the same is very clear, categorical, hearsay and needs no further explanation. To the contrary, this person should be the one investigated rather than me for violating the CODE. This is a clear violation of the charges being proffered against me.
I sincerely hope that the following explanation would be sufficient to exculpate me from the complaint against me.


CANDY



So above is the explanation of my friend to the HR. She was then scheduled for a "Hearing" a few days after and she advise her manager that she will be bringing her lawyer with her. According to Candy, she told us that during the hearing, she was asked only a few questions.

Q: Would you like to elaborate on your explanation sends to us few days ago?
A: I think it's all written on the paper. (CAndy said that she consulted her lawyer if she needs to elaborate more but her lawyer said "No need" so she just follow the order)

(HR took a photocopy of an online AD selling Apple laptop which is not on the NTE given to Candy and showed to her)
Q: Is this your cellphone number 0917-1234567?
A: Yes, that is my cellphone number

Q: Were you selling Apple products?
A: That was long time ago... But I don't recall that post as I have lots of Buy and Sell business with people I know and people I don't know. I have buyers and I have sellers, so sometimes I receive text messages from "seller" and asking if I have new products to sell and if they can post it online w/ my number on it and I agreed. I think that is not against the law, right? Also, since I DO NOT have any internet access at home, I gave full access to my username and password on Website A&B to strangers as I trust them on my little buy&sell business.

(HR took a photocopy of Candy's resume and showed it to her)
Q: Is this your email address - stork@yahoo.com?
A: Yes. But that doesn't mean that I'm the same "Stork" on all the webistes that is being accused to me.

According to CAndy she got angry and told the HR "I can be georgewbush@yahoo.com and that does not mean that I'm George W Bush".

Another thing that she noticed during the hearing is that there are some evidence showed to her that is not on the NTE given to her few days back and she was caught in the moment on how to explain this and that. So she got mad and turn the table around and quoted the HR as to why she is being investigated? According to the company policy she should be the one getting the protection from the company against this A-Ho guy as he is the one harassing her online. All the HR told her is that they will investigate on that and again asked her is she want to elaborate on her written explanation. Again, she said that her explanation are clear and there is really nothing to elaborate nor prove as it is really not her at all. It's really hard to prove something that is not You rather to prove that it is you, right?

One last thing that happened before the hearing ends, the company counsel ask for the calling card of Candy's attorney and he gave his card to the company counsel. (Don't know if this really matter, but Candy ask me to post it here)

So few days ago, the HR peeps called her for another meeting called "Resolution". As she is not feeling well that day she told her manager she can't go to the "Resoltion" meeting. The company still insist that the meeting will proceed and told Candy that her lawyer can come in behalf of her. She sure smell something funny about that "urgent" meeting. If it's good then they can wait for the next day, right?

So Candy's lawyer went to the office and meet up again with the company counsel and the resolution is that Candy is terminated due to "just cause" daw according to the labor code that her behavior is unprofessinal daw. Something to that effect. (Sorry I'm typing here while talking to her on the phone.. hehehe... )


I have also gone through the termination letter and the reason she is being terminated given to her by the HR. As I was scanning through the final letter, I have noticed that the reasons were NOT included in the first NTE given to her. There are more "evidence" printed out that is NOT even included on her NTE. Pwede ba "surprise evidence" sa mga ganun? Well, all the evidence has nothing to do with Website C, as all evidence are the buy&sell of website A&B and has nothing to do with Website C bashing forum.

Then there is a part on the final letter stated

The Supreme Court, in the case of Segismundo vs. NLRC, G.R. No. 112203, December 13, 1994 declared that "All administrative determinations require only substantial proof and not clear and convincing evidence." When taken altogether the above cited documents/circumstances pointed all fingers at you.

Ano daw??? sorry wala ako alam sa mga ganyan, but 1994 uso na ba internet forum? La lang, just curious as how the law define "substantial proof"?

I hope people here will be able to help advice on this matter as my friend is planning to sue the company for "illegal dismissal" or whatever you can sue them for regarding this matter. Also, how will she sue the guy libel for what he have done to her online? The company won't divulge the anonymous sender kasi daw they have right to protect the person coz they allow complaints from anonymous people. Pwede ba eto sa batas???

Also, kung meron kayo pa ma recommend na good lawyer on this kind of case, feel free to PM me.

Thanks for reading this and masakit na tenga ko sa telepono kasi ang kulit ng kausap ko..joke!!

Merry Xmas and a Happy New Year to all.....

hi can you pls quote the provisions of Section F.6.19 of CODE (or the provision of the CODE on which the dismissal was based) so that we may have an idea as to what company policy was violated and what category of just cause was Candy terminated

If the dismissal is based on a "just cause" under Art 282, the law requires the employer to give the worker two (2) written notices before terminating his employment, namely: (1) a notice charging the employee of the particular acts or ommissions that may cause his dismissal; and (2) the subsequent notice which informs the employee of the employer's decision

YOu mentioned that the alleged Section that was violated was not even contained in the Notice to Explain (NTE) hence there was a clear violation of due process

sheriff wrote:hi can you pls quote the provisions of Section F.6.19 of CODE (or the provision of the CODE on which the dismissal was based) so that we may have an idea as to what company policy was violated and what category of just cause was Candy terminated

If the dismissal is based on a "just cause" under Art 282, the law requires the employer to give the worker two (2) written notices before terminating his employment, namely: (1) a notice charging the employee of the particular acts or ommissions that may cause his dismissal; and (2) the subsequent notice which informs the employee of the employer's decision

YOu mentioned that the alleged Section that was violated was not even contained in the Notice to Explain (NTE) hence there was a clear violation of due process

Hello...

Here is how it is written in the first NTE.

**After screenshots of different posts from different websites**

-THese are possible forms of misconduct under the CODE, particularly F.16.9 in relation to the Business Conduct Guideline & the Labor Code to wit

CODE: "All other acts of dishonesty, which cause or may tend to cause prejudice to ***** (name of company)

Business Conduct Guidelines
-Personal Conduct -
- ***** reputation for integrity and busines ethics should never be taken fro granted. To maintain that reputation, you must follow all of ***** business conduct guideline and exercie good judgement in your decisions and actions. It's no exaggeration to say ***** integrity and reputation are in your hands.

If ***** management finds that your conduct on or off the job adversely affects your performance, that of other employees, or ***** legitimate business interest, you will be subject to disciplinary measures including dismissal.

Work environment

***** strives to maintain a healthy safe and productive environment which is free from discrimination or harassment based on race, color, religion, gender identity or expression, sexual orientation, national origin, age or other factors that are unrelated to *****'s legitimate business interests. ***** will not tolerate sexual advances, actions or comments or racial or religious slurs, jokes or any other comments or conduct in the workplace that creates encourages or permits an offensive, intimidating or inappropriate work environment. (emphasis supplied)

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.


Yan lang daw yun nakalagay sa kanyang papel together with screen capture ng mga Stork na nagbebenta ng laptop sa Website A&B. Pero, the issue here is with website C kung sino yun Stork dun and they are already accusing Candy na Website C is also her kasi same lang daw yun username.

Another part here that I want to ask is dun sa nakalagay na the company will not tolerate sexual blah..blah..(the one I underlined above) why did they tolerate A-Ho to humiliate an employee on an online forum? Aren't they should know first kung sino si A-Ho and maybe the Stork in website C is him just trying to get my friend into trouble. He may have hack into the account and make all those posts himself... When I read the forum wala talaga pumapatol sa kanya eh...

Well anyway the F.6.19 was not indicated in the NTE and as I read it and the CODE cited there is too general.

Also, I checked Website B, obviously it was posted by her friend kasi on the AD it stated

"contact number ng friend ko - 0917-1234567"

That is a giveaway na hindi nga sya yun nagsusulat sa forum.


My hunch is that A-Ho is someone from the management at meron talgang masamang balak kay Candy.

Hi can you pls tell us the nature of the job of Candy so that we can have a clearer picture.

Basing on the evidence of the employer alone, I can say that the dismissal of candy was illegal.

HoneySweet wrote:
Then there is a part on the final letter stated

The Supreme Court, in the case of Segismundo vs. NLRC, G.R. No. 112203, December 13, 1994 declared that "All administrative determinations require only substantial proof and not clear and convincing evidence." When taken altogether the above cited documents/circumstances pointed all fingers at you.

Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O.G. 1 335), but the evidence must be ‘substantial.’ x x x ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ x x x But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.) ADFLO, vs. UNDERSECRETARY OF LABOR BIENVENIDO LAGUESMA G.R. No. 108625. March 11, 1996

sheriff wrote:Hi can you pls tell us the nature of the job of Candy so that we can have a clearer picture.

Basing on the evidence of the employer alone, I can say that the dismissal of candy was illegal.

HoneySweet wrote:
Then there is a part on the final letter stated

The Supreme Court, in the case of Segismundo vs. NLRC, G.R. No. 112203, December 13, 1994 declared that "All administrative determinations require only substantial proof and not clear and convincing evidence." When taken altogether the above cited documents/circumstances pointed all fingers at you.

Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O.G. 1 335), but the evidence must be ‘substantial.’ x x x ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ x x x But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.) ADFLO, vs. UNDERSECRETARY OF LABOR BIENVENIDO LAGUESMA G.R. No. 108625. March 11, 1996

Candy works in a "sort of" a call center.

She is afraid that if she file a case against this multi million company baka bayaran lang ng company dun sa labor. I told her that she should fight for her rights coz mali talaga yun ginawa ng company nya to her. Not just that, the A-Ho guy put her name at risk. How can she apply for another job at baka di na sya tangapin sa ibang company. You see, it's really unfair talaga sa part nya.

Here are some questions she would like to ask and hope you or the readers can share your opinion on this matter:

- Can she be terminated due to an "anonymous letter" against her?
- Did the company followed the "two notice rule" as a procedural requisite to article 282 of the Labor Code? Well, the first NTE "memo" given to her didn't have everything written on it. The CODE on the first memo only has the F.16.9 and yet it wasn't written kung ano yun F.16.9. When she questioned this, they told her that it can be seen online on the company computer. She told me that she tried accessing their internal website and even her friends access it, they can't find the full explanation of the CODE. Kung meron man CODE nakalagay sa first memo nya it only stated-

CODE: "All other acts of dishonesty, which cause or may tend to cause prejudice to ***** (name of company)

Ganun lang ka simple yun CODE na nakalagay sa first memo nya.

- Since 2 notice rule, the second Memo was her termination letter na and there are more print outs of evidence from different website which is not declared on her first memo and she was terminated just like that. She has all the explanation to the second memo and yet she don't have the chance anymore as the second memo was already the termination letter. Pwede ba yun?

- After she submitted her explanation to the first memo, she was asked to attend a "meeting" regarding her case. On the meeting, she said that the labor guy in her company acts as the person taking down the minutes and the member of the "committee" in the meeting was her manager and another HR guy. Hindi po ba bias na yun labor guy ng company nila yun nag take down ng notes? We kinda found out kanina na on her termination letter, it was written that she agreed that she was selling stuff online. But the fact is she only said that she is selling stuff but not online kasi not all the time it is her posting the ADs online as she do not have a computer sa house nya. Meron twist dun sa sinulat eh. Before the meeting ends, she was asked to sign the minute the labor guy was taking note of and she signed it but she was not furnish a copy of the minute during that time. Only the minute was given to her together with her termination letter. Kaloka, diba?

Please help advice on this matter. Thanks so much..

Happy New Year to all....

HoneySweet wrote:
- Can she be terminated due to an "anonymous letter" against her?

She can be terminated due to an anonymous letter but the employer should conduct a thorough investigation to ascertain the facts

Her are some cases decided by the Supreme Court regarding terminations emanating from anonymous letters.

While it is true that loss of trust and confidence is a just cause for termination, it must not be simulated or concocted but must be supported by substantial evidence. In termination cases, the burden of proof of a just and valid cause for dismissing the employee rests upon the employer, and the latter's failure to do so inevitably results in a finding that the dismissal is unjustified. G.R. No. 124166 November 16, 1999 BENGUET CORPORATION vs.NATIONAL LABOR RELATIONS COMMISSION and FELIZARDO A. GUIANAN, G.R. No. 124166 November 16, 1999


Undoubtedly, an employer may terminate the services of an employees due to loss of trust and confidence. However, there must be some basis
therefor. In the language of the aforequoted Article 283(c) of the Labor Code, the same must be based on willful breach of the trust reposed in the employee by his employer. Ordinary breach will not suffice; it must be willful. Such breach is willful if it is done internationally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Elsewise stated, it must be based on substantial evidence and not on the employer's whims or caprices or suspicion; otherwise, the employees would eternally remain at the mercy of the employer. It should be genuine and not simulated; nor should it appear as a mere afterthought to justify earlier action taken in bad faith or a subterfuge for causes which are improper, illegal, or unjustified. It has never been intended to afford an occasion for abuse by the employer of its prerogative, as it can easily be subject to abuse because of its subjective nature. CONRADO TIU and/or CONTI PAWNSHOP, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and CARMEN L. ANCHETA, respondents.G.R. No. 83433 November 12, 1992

HoneySweet wrote:
- Did the company followed the "two notice rule" as a procedural requisite to article 282 of the Labor Code? Well, the first NTE "memo" given to her didn't have everything written on it. The CODE on the first memo only has the F.16.9 and yet it wasn't written kung ano yun F.16.9. When she questioned this, they told her that it can be seen online on the company computer. She told me that she tried accessing their internal website and even her friends access it, they can't find the full explanation of the CODE. Kung meron man CODE nakalagay sa first memo nya it only stated-

To effect the dismissal of an employee, however, the law requires not only that there be just and valid cause as provided under Article 282 of the Labor Code. It likewise enjoins the employer to afford the employee the opportunity to be heard and to defend himself. On the latter aspect, the employer is mandated to furnish the employee with two (2) written notices: (a) a written notice containing a statement of the cause for the termination to afford the employee ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires; (b) if the employer decides to terminate the services of the employee, the employer must notify him in writing of the decision to dismiss him, stating clearly the reason therefor.TEODORICO ROSARIO, petitioner, vs. VICTORY RICEMILL, respondent. [G.R. No. 147572. February 19, 2003

AS sheriff stated earlier, the notice must contain the particular acts or ommissions that may cause his dismissal


YOu mentioned that Candy was terminated due to Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work.

The Supreme court in its long line of decisions stated that:
Willful disobedience of the employer’s lawful orders, as a just cause for the dismissal of an employee, envisages the concurrence of at least two requisites: (1) the employee’s assailed conduct must have been willful or intentional, the willfulness being characterized by a “wrongful and perverse attitude;” and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge. TEODORICO ROSARIO, petitioner, vs. VICTORY RICEMILL, respondent.
[G.R. No. 147572. February 19, 2003

I think there is no perverse mental attitude on the part of Candy in disobeying Section F.16.9 of the company policy as to warrant the ultimate penalty of dismissal.

These are my thoughts. I hope I was able to help you and Candy. Let's wait for the good lawyers here like fbsensei and admiral thrawn. maybe they are just enjoying their Christmas break

HoneySweet wrote:
She is afraid that if she file a case against this multi million company baka bayaran lang ng company dun sa labor. I told her that she should fight for her rights coz mali talaga yun ginawa ng company nya to her. Not just that, the A-Ho guy put her name at risk. How can she apply for another job at baka di na sya tangapin sa ibang company. You see, it's really unfair talaga sa part nya.

file a case of illegal dismissal. im sure they can also afford t pay multi million attorneys fees and damages

Thanks for all the replies here. Happy New Year to all of you!

I hope someone here can recommend a "Bad Ass" lawyer for my friend. What I meant by "bad ass" lawyer is that yun matapang at magaling and not very expensive. My friend is just a normal citizen and not the "rich" class ha. Sana mabigyan ng katarungan yun case nya.

Please send me a PM na lang of the contact number ng lawyer who can help. Thanks.

Happy New Year!!!

I hope the one who will handle the case will give you a referral fee