An employment may be terminated only if there is a lawful basis for it. The reason is that employment is considered a property right and therefore, like any other kind of property, enjoys the protection of the law. This means that it cannot be taken away without due process of law.

There are two essential requisites for a lawful termination, the (1) substantive requirements, and (2) procedural requirements.

Substantive requirements refer to the reason for taking the action. Unlike in the past where readiness to pay separation pay is all that is needed to do away with the services of an employee (under the old Termination Pay Law), today such action must be based on a ground which the law recognizes as sufficient and valid in order to justify the termination. This basis may either be what is known as just causes for termination or the so-called authorized causes for termination.

On the other hand, even if a termination is based on what is recognized by law as a valid or substantive ground, it may still be considered unlawful if the process of terminating the employee does not comply with the due process requirements of the law. This is the procedural aspect of termination. The law prescribes the manner of putting termination into effect. Even if armed with a sufficient basis to terminate, an employer may be deemed to have done

it unlawfully if he carries out the termination without observing the required process.

Questions:

1. Are company rules imposing termination as penalty considered a substantive ground? 

Provided that they are analogous to the just causes enumerated by law, company rules exacting dismissal as penalty is a substantive ground. Analogous means something related or similar to the grounds enumerated by law (as just causes for termination). For instance, under the law, gross and habitual negligence is a just cause for dismissal. A company rule that punishes repeated absences, or chronic under performance at work is analogous to the law on negligence. In addition, there is a need for company rules to be reasonable under the circumstances. The litmus test for the validity of company rules is fairness.

2. If there is a just cause for termination but the employer does not observe due process, is this fatal to the action to terminate?

The current jurisprudence is to the effect that if the procedural requirements are not observed, the termination may be sustained but the employer will be liable for damages.

SUBSTANTIVE REQUIREMENTS

Under the law, an employment can be terminated only on the following grounds:

a. if there is a just cause, and b. For authorized causes.

Just causes for termination are those enumerated under Article 282 of the Labor Code. Specifically, an employee may be dismissed for (a) serious misconduct or willful refusal by an employee to comply with a lawful order of the employer or representative (b) gross and habitual neglect of duty (c) breach of trust (d) commission of a crime against the company, and (d) other causes analogous to the above.

On the other hand, authorized causes refer to those instances where an employer is permitted to terminate if it is essential to the efficient running of the business or to the need to protect it from possible losses. Thus, the following grounds are valid bases for terminating employment: (a) redundancy (b) introduction of labor saving device (c) retrenchment to prevent losses, and (d) closure or cessation of business not on account of losses. In addition to these, an employer is also permitted to terminate in cases where (e) an employee is suffering from an illness that poses risk to himself and to his co- employees, provided such illness is not curable within a period of six months, and (b) if the employee is laid

off for valid reasons and such inactivity goes beyond six months.

Questions:

a. What is the essential difference between a just cause and an authorized cause? 

From the above explanation, it is plain to see that the premise of just cause termination is the personal accountability of the employee. This means that the principal blame lies on the employee for breaking the law enforced by the company. On the other hand, in authorized causes for termination, the employee is not at fault and does not infringe any rule. It is the company that initiates the action which the law authorizes on the reasoning that the employer must be allowed the right to determine how best to run his business in order to achieve its objectives.

b. Who determines what authorized cause or causes shall be invoked in terminating employees?

Consistent with what is discussed above, it is the company that determines what ground to use in terminating for authorized cause. This is known as the business judgment rule. The employer is assumed to know what is essential to the success or continued existence of the company and the court normally would not inquire into the factors that go into

determining business decisions. Unless of course the decision is attended by bad faith, or is intended to carry out a fraud, or is done to frustrate justice. But while this is true, the law in cases of authorized terminations requires the company to comply with certain requirements, and the employees affected by such decisions can seek recourse from the NLRC if the decision of the company is questionable.

PROCEDURAL REQUIREMENTS

Under the law, due process is an important part of lawful termination.

The procedures to comply with this requisite differ in just and authorized terminations. In termination for a just cause, the due process requirements consist of the following:

a. Furnishing the employee with a written notice advising him of the offense he committed and giving him the opportunity to answer the charges against him. This notice requires that:

i. The details of the charge are sufficiently clear to provide the employee a complete idea of the nature of the accusation against him.ii. The notice must indicate in unmistakable terms the intention of the company to terminate the employee if the charge is subsequently proven.

b. Providing the employee an opportunity to be heard, to rebut the accusation, to confront the witnesses against him and to present his own, and to have the assistance of a lawyer if he so chooses.

c. Furnishing the employee a second written notice if, and only if, the inquiry into his case proves that he really committed the offense.

On the other hand, in termination for authorized causes, the due process requirements consist of the following:

a. Serving a notice to the employee to be terminated of the intended action at least 30 days prior to the date of dismissal.

b. Serving a similar notice to the Department of Labor and Employment within the same period of time.

c. Payments of a separation pay in the amount required by law.

Questions:

a. Is it an indispensable part of due process requirements that an actual investigation be conducted by the company?

The jurisprudence is not precise as there are decisions to the effect that if the employee is asked to

give a written explanation, the same is already equivalent to a hearing as the employee is given the opportunity to explain and rebut the charges. On the other hand, there are decisions that specify the need to extend to the employee the need for an actual inquiry and hearing. Since we cannot second guess what the court may decide in a given case, it is better to err on the side of discretion and allow the employee a modicum amount of opportunity to be able to explain in an official inquiry.

b. Is it the function of a hearing to actually prove beyond doubt the guilt or accountability of the employee?

The hearing is principally designed to afford the employee ample opportunity to be heard. The company of course is expected to weigh the evidences, statements, and allegations of all the parties, and the idea is to determine what the truth is. But like most hearings, there will be two sides to an issue, and the obligation of the company is ferret out which side is correct.

c. Can the notice required in authorized terminations be dispensed with by paying the employee an advanced salary of one month?

This has been resolved already by the court in the case of Serrano v. NLRC. Advance salary payment is not equivalent to notice. Companies that do this risk

being charged with failure to comply with the due process requirement under the law. The notice of 30 days is meant to give the employee enough time to make the corresponding adjustments in his drastically altered personal situation. This is not remedied by giving him an advance pay. While giving salary in lieu of notice may seem practical to both parties, the thinking is that the employee must be given the time to make the appropriate steps to adjust to his situation.

JUST CAUSES OF TERMINATION

Serious Misconduct or willful disobedience by the employee of a lawful order by his superior –This particular cause of action actually contemplates two distinct situations: one is a case where the employee commits an act which is improper and which transgresses an established rule of conduct, and the other is what is commonly known as insubordination.

But what is common in these two kinds of offensive behavior is the fact that both are characterized by a wrongful intent on the part of the offender. As opposed to just being a mere mistake or error in judgment, the acts covered by this provision of the law contemplate a deliberate and calculated act. The defining term is that the offense is committed willfully.

The charge of serious misconduct may attach to any kind of offense provided:

a. the act complained of is grave as opposed to being merely an ordinary misbehavior, in which case the circumstances under which the act is done and the danger or potential injury it can cause, must be properly considered;

b. the employee intended the consequence of his acts, meaning he did it deliberately; and,

c. The act must be in connection with the employee’s work.

On the other hand, insubordination requires the agreement of key essential requisites:

a. the order is lawful

b. it is given by one’s superior

c. it is connected with the work being performed d. There is deliberate refusal to comply.

If the order is not lawful, or even if lawful, is not within the competence of the employee, or assuming it is within the competence of the employee, but it is not given by someone to whom the employee owes a duty to comply, then the charge of insubordination will not apply.

Questions:

a. What would determine whether an act constitutes a serious misconduct or not?

There is no precise guideline or measure that will give an exact description of what is a serious misconduct. There are certain requisites however. First, the act must be in violation of some existing rules of conduct which, in the context under which the company operates, must be considered a serious transgression. The nature of the company rule violated often defines the degree of seriousness of the offense. The extent of injury or potential damage to the company as well as the impact of the act committed to the operations of the business also figure out in determining whether it a serious misconduct or not. For sure, any act that is immoral as measured against social conventions, or which is depraved, or which offends rules that customarily are highly regarded, may be considered as serious misconduct.

b. If an act is not covered by a specific rule in the company’s code of conduct, can the employer just invoke the labor code to charge the employee with serious misconduct?

The principal law on termination is what the code provides. Even if the act is not covered by the rules, if the act falls under any of the just causes listed under Article 282 of the Code, then the employer can invoke

this and proceed to terminate.

c. If the order is given by someone besides the immediate head of the employee, or the task assigned is not part of the work of the employee, is a refusal to comply chargeable by insubordination?

These are the contentious issues in insubordination, when the requisite elements of the offense are either absent or operate under different circumstances. First of all, the law did not say that the order must come from the immediate superior but from the employer or his representative. If the order is given by someone other than the immediate superior, he should at least qualify himself as someone representing the employer. What is material in insubordination is whether or not the order is related or in connection with the employee’s work. Thus, if the order is totally alien to the job of the employee, a refusal does not come within the purview of insubordination. Most jobs have requirements for the incumbent to assume work that is given or assigned from time to time, or periodically, meaning a work that is not ordinarily a part of his usual routine. Thus, any refusal may be considered as insubordination if it’s willful and deliberate.

d. If the employee was not able to comply because of an emergency, is the refusal to comply still possible as insubordination?

If the emergency is established, it may be hard to consider it under the rule because then, it ceases to be a malicious refusal to abide by the given order. If the refusal is dictated by extraneous reasons, and they are serious enough to warrant the immediate attention of the employee, then the insubordination case becomes less compelling.

Gross and habitual neglect of duties – Negligence means absence of care and diligence on the part of the employee in reference to the duties that he is required to give to the employer. Unlike serious misconduct, this rule does not require as an element deliberate and malicious intent. Provided there is negligence, then the employee may be charged for any offense in which the employer suffers and incur damages by reason of the inability of the employee to observe due diligence in the performance of his duties. As a rule, for this reason to apply, the offense must be done habitually and at the same time, result to substantial damage to the company in a way that will qualify the offense as gross.

Questions:

a. Is it required for this rule to be validly applied that the employee commits a grossly negligent act more than once before he can be terminated?

While the law would seem to indicate this, meaning

that the negligence must not only be gross but also habitually committed, the court has often ignored this absurd interpretation and has ruled that a gross violation need not be repeated to be able to terminate the offender. What is necessary is to show that the injury to the company is substantial (gross) such that a penalty of dismissal would be seen as a proportionate punishment against the employee responsible for the damage.

b. Is poor performance punishable as a form of habitual negligence?

When poor performance results from negligent acts, then there is a ground for using this rule against the employee. But poor performance may be caused by factors other than an employee’s lack of diligence in doing his work. The employee may not be negligent, in fact may even be industrious and hard-working, and still come short of expectations. If that is the case, this rule is not applicable but the employee just the same may be taken out but using a different set of rules.

c. Is chronic absenteeism punishable under this rule?

Repeated absence without official leave is a form of dereliction of duty and falls squarely under this rule. So it is with abandonment of employment, or excessive tardiness.

Serious breach by the employee of the trust reposed in him by the employer – This is a rule that usually finds application only in cases where the employee concerned is occupying a position of responsibility, i.e. vested with trust and confidence. Of course, in a much limited way, it also applies in cases where the employee (not the position) is given access to confidential information or custody of important matters even if he is not assigned to a position involving high responsibilities. What is punished therefore in this rule is the breach, or violation, of the explicit need to maintain confidentiality of information or integrity of the thing held.

Of course, loss of confidence is valid ground provided there is a basis. An employer cannot simply assert lost of trust to justify the dismissal of an employee without providing the reason for such action. While it is true that an employer must have full confidence in those who are performing important or critical functions in the company, the law will not tolerate any allegation (as a basis for termination) to the effect that such confidence has been lost unless there is a good reason to support it. Time and again, the Supreme Court has maintained that even managers enjoy security of tenure.

Questions:

a. Is failure of a manager/supervisor to deliver on

his tasks sufficient basis for loss of confidence?

Failure to perform as expected, or as represented by the employee to his employer, is a valid ground for the company to lose confidence in a way that will justify the termination of the employee provided the inability to deliver involves a significant aspect of the work.

b. Can we charge an ordinary employee with loss of trust and confidence?

An ordinary employee can only be liable under this rule if he has been tasked to possess or have custody of things that are of significant value to the company. This can be property, money, or intangible things like information, data, or knowledge of plans. The liability attaches if the employee breaches the confidentiality of the information by sharing this to others, or if he appropriates the thing in his custody, as for instance in the case of a cashier who pockets the earnings of the business.

Commission of a crime against the employer, his immediate relatives or representatives – A crime is an act or omission punishable under the Revised Penal Code. You have to distinguish this with other offenses an employee may commit which is covered by different sets of laws. The law is specific as to what kind of action this rule applies. If an employee is civilly liable, that is not a crime, and the commission of an

act that gives rise to a civil action may not be used to terminate an employee. So is a violation of an ordinance.

The crime committed must have been directed against the employer, relative or representative. The latter includes people who work in the interest of the employer like managers or supervisors.

It is not required for the application of this rule that a conviction is made to prove that the crime was in fact committed. It is enough that a basis exists to form a conclusion in the mind of the employer that the employee committed a crime.

Question:

a. If an employee accused of having committed a crime against the employer is acquitted in court, does that mean that the employee cannot be terminated, or if already terminated, that he cannot be reinstated anymore?

Acquittal does not necessarily mean that the employee cannot be terminated because in criminal cases, the requirement is proof beyond reasonable doubt. Termination from employment is an administrative matter, and in the latter case, it is not required to have the degree of proof necessary in a criminal proceeding. Preponderance of evidence is sufficient. Therefore, if the employer has enough

evidence on hand to sup port a belief as to the culpability of the employee, it is immaterial whether or not the employee was acquitted in the criminal case. He can proceed to terminate. It is a different matter, however, if the acquittal in the criminal proceeding is because of a finding that he did not commit the crime. That finding should bind the company.

AUTHORIZED CAUSES OF TERMINATION

Authorized causes permit the employer to terminate employment even if the employee is not at fault. The premise is the right of the employer to regulate the business and to preserve it consistent with its purpose. It proceeds from the thinking that there are business decisions which are essential to keep the business going, and this takes precedence over certain individual rights including that of continued employment.

There are of course limitations placed by law to prevent abuse or misuse of this right to terminate employment. One, the reason must be legitimate, meaning not contrived or merely simulated. Second, the employer must be ready to prove this by competent evidence. If the reason is loss in operations, then financial records and other similar data must be available to support the action. Third, notice should be made to the parties at least a month before the intended date of termination to afford them not only time to adjust but also to have the opportunity

to question the action before the proper tribunal. And fourth, payment of separation pay must be made in every case.

The authorized causes under the law include the following:

Introduction of labor saving device – improvement of the business process is a right of the employer and consistent with the doctrine that the manner of regulating the operations of the business is an integral part of the so called management prerogatives. When a device is adopted and such contraption results to an excess in manpower requirements, the law will not prevent the employer from stripping the excess. The alternative, meaning to force the employer to retain employees made irrelevant or unnecessary by the device, is unreasonable and is going to be oppressive to the employer.

Redundancy – this is a situation where there is an excess of people over what is required by the business, and following what is discussed above, it is unfair for the employer to be obliged to retain what the business does not need. Redundancy occurs as a result of certain situations. Reorganization, reduction in the volume of business, phasing out of certain part of the operations, change in marketing plans, obsolescence of products, or any other kind of situation where the net result is having more people than what is needed to carry out the functions of the

business, are examples of redundancy. This rule applies when there is an excess of people without the company being in dire financial condition. What is contemplated here is not a case where the company has to shed some of its personnel because it is losing or is about to suffer losses in the business. The company may not be losing money, in fact, may even be making its desired profits but is allowed nevertheless to terminate employees if the latter constitute an excess in the company’s people requirements.

Retrenchment to prevent losses – here, the situation appears to be the reverse of that obtaining in a redundancy case. The company may have just the right number of people to operate its business under normal conditions but because of losses, or anticipated losses, it is allowed by law to terminate employees. Retrenchment differs from redundancy in terms of the amount of separation pay required to be extended to affected individuals. Whereas redundancy termination requires payment of at least one month salary for every year of service, retrenchment pay is less, that is, only one half month salary for every year of service.

To be sure, it is not easy to justify retrenchment. An employer has to meet certain requisites in order that his action (retrenchment of employees) may be justified: one, the losses must be substantial, and not merely the kind of losses that occur in the usual

course of operations which sometimes happen depending on the seasonality of the business; two, the losses anticipated must be imminent, meaning unless remedied are sure to come; three, the company must have done all that is necessary short of terminating people to prevent the losses but to no avail; and four, the company has the proof to show the reality of the losses.

Closure or cessation of business – the closure spoken of in this cause is not one occasioned by losses because if it were the case, it is not covered by this provision. For whatever reason, except perhaps when it is attended by fraud or when designed to frustrate justice, an employer may opt to stop his operations and close the business for good. This is because such action is an exercise of a right that is rooted in ownership. An owner of a thing has the right to do whatever he pleases with the thing he owns provided he does not violate the rights of others and provided further that it is not in violation of the law.

Illness – an employee who is suffering from a disease which poses danger or risk to his own safety as well as to the welfare of other employees may be separated from the service provided only that a government medical officer certifies to the fact that the illness cannot be cured in a period of six months.

Lay-off for a period exceeding six months – when an employee is placed on an extended leave or

inactive status or otherwise stopped from working for reasons not entirely due to his own fault, then it is considered as constructive dismissal and is treated similar to the above causes in the sense that the employee has to be paid a separation pay equivalent to one half month salary for every year of service.

Questions:

a. From an employer’s perspective, is it legally defensible to use retrenchment as a reason rather than redundancy when there are reasons that could support either cause?

From a strictly legal perspective, there are enough grounds to be able to differentiate redundancy from retrenchment although it is true that sometimes, there are reasons equally applicable to the two. If actual losses were a basis, there would be no problem distinguishing these two grounds for in this case, retrenchment would apply to a company losing and redundancy to a company which is not otherwise suffering a loss. Unfortunately and as already mentioned above, it is not necessary for a company to actually incur losses before it can invoke the law to effectuate retrenchment. The thing is, it is the company that determines the basis for termination and the recourse of the employee affected is to question such basis before the proper agency of the government. That is the purpose of notice. In short, there is no obstacle to filing for retrenchment even if

redundancy is equally applicable, but the company must be ready to support its action with substantial proof.

b. If the company closes part of its facilities, is the rule on closure applicable?

The law contemplates not just the closure of the entire company but also of particular parts or sections, assuming that the same can be done without impairing the entire operations.

c. If the company closes but due to losses, is it required to pay separation pay?

This has been decided already by the courts. If the reason for the closure is because of losses, the company may not anymore be obliged to pay separation pay. Of course, if the employees are so minded, they can file claims against the remaining assets of the corporation over which they enjoy certain preferences over other claims.

d. Who and what factors determine who will be terminated in case of retrenchment or redundancy?

In redundancy, if the cause of excess is due to closure or stoppage of operations, then the employees directly affected by such closure or stoppage should be the ones to go. For instance, if a

particular line of product is shut down for whatever reason, then the people working in that line are and should be the object of the redundancy termination. The same thing goes for a redundancy owing to reorganization. The people rendered redundant by the reorganization should typically be the people who should be terminated. In all other cases, especially retrenchment, the termination must be based on well- defined criteria. There normally include performance and seniority, as well as other relevant factors. The company should decide based on such criteria unless it is held by certain requirements under a collective bargaining agreement to decide in a particular way. Recent decisions of the court, however, have been instructive. According to these rulings, seniority must always be included in the criteria otherwise, the selection is questionable.

e. Can an employer immediately replace an employee who is terminated for any of the above causes?

Unless there are extenuating circumstances, any improvident hiring done immediately after redundancy or retrenchment will certainly give rise to a suspicion that the terminations were done in bad faith. It is immaterial that the employees have signed quit claims or waivers or have received payments of separation pay because none of these will prevent them from filing a case against the company. Of course, if terminated employees are given priority in

the hiring, it may be a different case. But rehiring, especially in case of retrenchment, so soon after the employees are terminated is evidence of simulating a cause that is not probably true.

f. May a company retrench and then hire the employees terminated as casuals?

Again, it is going to be a question of good faith, the willingness of the employees to be bound by such action notwithstanding. If it is evident that themove was precipitated by a desire to shortchange the employees, the fact that theemployees accepted payments is immaterial and a person adversely affected may have reason to file a case against the employer.

g. Can retrenchment pay be given in installments?

There is no jurisprudence to this effect and the law is silent as to the matter which has in fact led many to do exactly that, meaning pay separation pay in installments. But the intention of the law is to pay the employees a separation pay and it should be construed as a duty that must be done once the operative act (termination) takes effect. It does seem to be unfair to deprive the employees their employment and then withhold their separation pay. The law did not command merely acquiescence of employers to paying, because insofar as the law is concerned, that is the corresponding obligation of a

company and one that is not subject to modification. Paying in installments is in fact modifying the terms of the law, and thus, must be held to be unlawful.

DUE PROCESS

As already mentioned, due process in termination cases consist of two things: (1) notice, and (2) hearing. The notice is equivalent to a charge sheet in a criminal case. It must provide sufficient details concerning the offense charged to allow the employee concerned the opportunity to defend himself. A notice that merely indicates what particular rule of the company was violated, or even what the particular rule consists of, is not enough. It should indicate the details of the offense, and more importantly, it must also contain an advice to the employee that it is the company’s intention to terminate his services if the charge/s is proved. Without this admonition, the notice is as good as not having been sent.

Proof of service of notice is important because without it, receipt can be denied. Substituted service or service by giving a copy directly to the employee is good if actually received. In most cases, employees refuse to receive, or if they receive, refuse to acknowledge such fact. Of course, any doubt that the employee has been served notice can give rise to a question on due process.

Hearing is an opportunity for the employee to

controvert any of the charges against him, to confront the witnesses and to summon his own, and basically, to prove his innocence to the company.

When this process is undertaken, the due process requirement is served and the company is free to take action based on its evaluation of the facts presented.

If the company is satisfied that the employee is guilty, then it can proceed to take action. It must provide the employee with a written notice containing its decision and the basis of such action. A termination due to a just cause can take effect immediately upon the receipt of the notice by the employee.

Questions:

a. Can the employee be placed under preventive suspension while the hearing is going on?

Preventive suspension can be instituted against the employee only if his presence constitutes a threat against the life and property of the employer or that of any employee.

b. How long can a preventive suspension be put into effect?

For 30 days without pay, and even beyond this, if the employer is willing to pay his salary after the 30th day.

c. Does a show-cause letter sufficient to dispense with a hearing?

It normally should be sufficient unless the explanation given by the employee calls for the need to investigate further in which case a formal hearing may be conducted. The litmus test actually should be this: was the employee heard enough? Did he have the opportunity to fully explain his side? Is there no need for further elaboration so that the company will have the complete facts before it in order to make an informed judgment? The overriding consideration is fairness. The employee should be extended all chances to prove the accusation false and it is only when he comes up short that the employer should take the necessary action.

d. Can the company object to the employee bringing a lawyer as counsel and in the affirmative, what should be the role of the counsel in the hearing?

Access to legal assistance is a privilege conferred by law and cannot be denied if demanded by the employee. The role of the counsel is to assist the employee in his defense, and this includes advising him on what to say or not say. A hearing in the company is an administrative process and the lawyer cannot demand the application of the rules of court in the proceedings.

e. If conducted, what is the reasonable duration for holding the hearing?

The hearing should last only when the company is satisfied that the employee has been given his due or day in court so to speak. Undue delays, procrastination, or maneuvers to delay the proceeding are matters that must be controlled by the company.

f. Must the union officers be allowed to intervene in the hearing?

Only to the extent allowed by the collective bargaining agreement. Union officers normally would be interested participants if a member is undergoing an inquiry, but they will be there merely to assist. Thus, the company may properly restrict their participation if such is not defined in the CBA.

g. What must be considered by the company in coming up with a decision?

The company must consider all the evidences presented by both parties, and make a decision on the basis of what is contained in the records. There is a tendency on the part of many employers to consider the hearing aspect of due process as an annoying pro-forma requirement of the law. That is not the intention for this. It is true that the company is the one charging (by way of its representatives) and it is somewhat incongruous to think that the company, in

deciding the case, would decide in a way that will contradict its very own accusation. Be that as it may, it behooves the employer to ascertain the truth in every case, and to grant allowances where the same may be due if the purpose is to be able to grant justice. If the employee is not accountable, or if his accountability is mitigated in any way, the employer should consider this meting out its judgment.

h. What are the legal procedures required in implementing termination?

Beside those already discussed, when a letter advising the employee of his termination is issued, a report of such termination must be given to the Department of Labor. If it is a case of just cause termination, it should be included in the monthly report to the DOLE. If it is a termination for authorized cause, the DOLE is required to have a notice at least 30 days before the intended date of termination otherwise it will be as if no notice was given. Notice to the employee must be served by registered mail to have evidence of service, regardless of whether or not actual personal service was done directly to the employee.