“Strike me if you must, but hear me first!” – Themistocles
According to historical accounts, this were the words of Themistocles, an Athenian statesman and general, who urged the Spartan commander Eurybiades during the Battle of Salamis, not to pull back with the Greek fleet. When the commander was about to strike him, he calmly said, “Strike, but hear me.” This shows that even during tense moments, reasonable conversation matters. While no records confirm this story, the lesson is still relevant today.
Between work meetings, as I tried to be focused, the online coverage of last week’s congressional hearing distracted me when I heard the familiar “3 Strike Rule” mentioned by a resource person in one of the most animated moment during the discussion about flood control schemes.
I’m not sure how this “3 strike rule” applies in other government agencies like the DPWH, apparently it allegedly redounded millions if not billions worth transactions. But in my profession, I do have tons of ideas about its intricacies though it does not result to any monetary transaction of such magnitude, it is a priceless rule. It was alleged that the very strict enforcement of the 3 Strike Rule had pushed the witness and his companies to conspire or comply with the supposed “requests” or “demands” for commissions (kickbacks) for certain powerful individuals.
As an HR professional, the 3 strike rule is one of the must be remembered guideline in our field. Whether it is strictly followed or ignored, intentionally or unintentionally, supervisors and employers can find relief knowing that a competent HR professional and the Department of Labor and Employment (DOLE) are always there to check, remind, and even reprimand individuals and companies. This helps ensure that due process is respected, providing protection for workers.
In Philippine labor law, the “three strike rule” is not a legal requirement. It is a company policy often used in progressive discipline systems. Labor cases are not officially classified as violations of the “three strike rule.” However, there are cases where employers are challenged for terminating employees without following their own disciplinary procedures, including progressive discipline.
DO No. 147-15 requires employers to uphold both substantive and procedural due process. This means there should be clear documentation of infractions, the opportunity for the concerned employee to be heard, and consistency with company rules regarding progressive discipline.
If an employerskips any of these steps and goes straight to termination without prior warnings, they risk a ruling of illegal dismissal, even if the actually employee committed a violation.
While the “Three Strike Rule” is not legally mandated, failing to follow a company’s own disciplinary procedures, like skipping warnings or enforcing them inconsistently, can lead to serious labor cases. These are not violations of the rule itself but violations of labor law due to poor handling of discipline.
If a company has a “three strike rule” and does not apply it consistently, the National Labor Relations Commission (NLRC) or courts may side with the employee. Because it is not just about the company rule, it is about fairness, consistency, and due process.
In simple terms, the three-strike rule represents due process which is another must remember term that HR professionals should memorize like the palm of their hands.
The Philippine labor law requires both substantive and procedural are protections to ensure that an employee can only be dismissed for a valid reason and after being given a chance to defend themselves.
Those accused of a wrongdoing must at least know what they are being accused of.
The National Labor Relations Commission, or the NLRC is a body in the under the Department of Labor and Employment (DOLE) that resolves disputes between labor and management to promote industrial peace. It acts as an “court” in labor law, dealing with cases for both local and overseas workers through compulsory arbitration and methods of dispute resolution.
Labor offenses related to non-compliance with progressive discipline or the “Three Strike Rule” often result to illegal dismissal which is the most common case filed with the NLRC. This occurs when an employee is terminated without following due process or the company’s own disciplinary steps. An example is firing someone for a first offense when the policy requires three.
Meanwhile, constructive dismissal happens when an employee feels being forced to resign due to unfair treatment or being faced with a very hostile work environment. Any disciplinary actions considered arbitrary or overly harsh are often viewed as constructive dismissal.
It is essential to understand that the term “Three Strike Rule” is not a formal concept in Philippine labor law. When we discuss disciplinary policies within companies regarding terminating an employee after three infractions, we refer to company-imposed progressive discipline, not a statutory rule.
Many companies practice a progressive discipline policy. A common example would be as follows:
1. First offense – Verbal or written warning
2. Second offense – Suspension or final warning
3. Third offense – Termination
The Labor Code of the Philippines does not explicitly mention a “Three Strike Rule.” Though the NLRC and courts don’t enforce the rule itself, they will hold employers accountable for failing to adhere to their own standards or enforcing religiously company policies.
This act emphasizes & reinforces that due process for employee termination in cases of just causes for dismissal, such as serious misconduct, habitual neglect, or fraud, there are procedural requirements.
It is crucial to stress that employers must give employees a reasonable opportunity to respond, either through a formal hearing or by submitting a written explanation. Note that being heard does not always mean having a formal administrative hearing or trial. A written memo and a documented trail would suffice.
While the “three strike rule” is often referred to, it is not legally required. However, it must comply with labor standards, particularly the Twin Notice Rule: a written notice of the charges and a separate notice of termination, along with the opportunity for the employee to be heard.
The Twin Notice Rule and the opportunity to be heard represent fundamental due process. This means that before an employer can impose a penalty for disciplinary reasons, employees must know the accusations against them and be given a fair chance to respond. This is especially fair if the outcome could be termination of employment.
Due process requirements are met when both parties have a fair chance to present their sides of the issue. (Perez v. Philippine Telegraph and Telephone Company, G.R. No. 152048, 07 April 2009)
Thus, DOLE Department Order No. 147, Series of 2015 (D.O. 147-15) reminds employers of the importance of following due process and that this is part of employees’ constitutional right to job security.
In Section 1, Guiding Principles, workers’ right to job security is guaranteed under the Philippine Constitution and relevant laws and regulations. No employee shall be dismissed except for just or authorized cause and with due process.
Additionally, this regulation states that in all termination cases, “the standards of due process outlined in Article 299 (b) of the Labor Code, as amended, and established legal precedent, must be followed.” (Section 5, Rule I-A, DOLE D.O. 147-15)
Substantive due process refers to valid reasons for terminating employment.
There are two components of substantive due process: just causes and authorized causes. In both cases, labor law allows employers to dismiss employees.
Just causes involve dismissals due to employee fault or negligence, while authorized causes refer to separations due to “business necessity, changing economic conditions, or employee illness.”
Procedural due process outlines the steps to follow when terminating an employee. The process for just cause terminations differs from that for authorized cause separations, which I will write about in a future piece inspired by whatever emerges from the Senate and House of Representatives.
The violation of due process is explicitly stated in Department Order (DO) No. 147-15. It clearly states that employers must follow the twin notice rule, which includes a written notice to explain and a documented notice of decision. Skipping any step violates this and opens the door to labor complaints.
If a company does not follow any or both of the “Three Strike Rule” or the “Twin Notice Rule”, that results to a termination, this could be challenged as illegal or procedurally flawed.
To stress the importance of due process, let me share a modern paraphrase of a famous line attributed to Themistocles from ancient times: “Strike, but hear me,” translates to “In times past, when due process was more of a myth, empty accusations have had their day.”
GOOD MORNING HARDWORKING PEOPLE! For comments & suggestions, you may email author [email protected] & follow in Facebook Herrie Raymond Rivera.