15463760 labor 2 notes angel aguinaldo

LABOR 2 NOTES: ATTY. DISINI 1

TERMINATION OF EMPLOYMENT

GENERAL CONCEPTS

CONSTITUTIONAL FOUNDATION FOR THE RIGHTS OF LABOR

Article 2, Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

Article 13, Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to

investments, and to expansion and growth.

SECURITY OF TENURE

Art. 279. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989)

Article 277. Miscellaneous Provisions. (b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and

MA. ANGELA AGUINALDO ATENEO LAW 2010


Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33, Republic Act No. 6715, March 21, 1989).

NATURE OF THE RIGHT TO SECURITY OF TENURE• It is a jurisprudential doctrine that the right is both

constitutional and statutory. Basis? Article 13, Section 2 of the Constitution and Article 279 of the Labor Code

IN WHAT WAYS CAN THE RIGHT TO SECURITY TO TENURE BE VIEWED?It can be viewed in three ways—

1. Legal: constitutional and statutory2. Economic: economic reality or economics of relationship3. Social: one’s standing in the community depends on his

work

QUIJANO V. BARTOLABAC• Employment is a property right

TOLENTINO V. NLRC• Security of tenure is a right of paramount value and

shouldn't be denied on mere speculation

PHILIPS SEMICONDUCTORS V. FADRIQUELA• For a fixed-period employment not to violate the right to

security of tenure, the following must be satisfied:o Voluntary agreement between the partieso Each one dealt with one another more or less in

equal terms with no moral dominance

WHY IS SECURITY OF TENURE AFFORDED THE LABORER? WHY DOES THE STATE AFFORD PROTECTION TO LABOR?

• The State recognizes that one’s employment is one’s lifeblood and livelihood

• Dependency and economic relations• Euro-Linea v. NLRC: preservation of lives is a basic duty and

it is more vital than preservation of company profits

DOESN'T THE STATE TRAMPLE ON MANAGEMENT RIGHTS WITH THE PROTECTION IT AFFORDS LABOR?

• No• The state recognizes management rights, alongside with the

fact that it reserves the right to inquire why and how the management exercised its right

MANAGEMENT RIGHTS V. SECURITY OF TENURE• Again, the State recognizes management rights, as long as it

is exercised in good faith and doesn't circumvent employee’s rights

SONZA V. ABS-CBN BROADCASTING• For there to be entitlement to security of tenure, one must

establish the existence of an employer-employee relationship• This was the case wherein it was held that Sonza was not an

employee of the company but instead is an independent contractor. The payment of money doesn't automatically mean there is an EER. The giving of benefits may arise from contractual rights but not of employment.

TEST OF EMPLOYER-EMPLOYEE RELATIONSHIP1. Hiring2. Dismissing3. Payment of wages4. Control

a. This test is said to be the ultimate testb. This test is satisfied if there has been a reserved right



of control

IS THE “REGULAR EMPLOYMENT” UNDER ARTICLE 279 THE SAME WITH THE “REGULAR EMPLOYMENT” CONTEMPLATED IN ARTICLE 280?

• No, it pertains to being employed• All employees are afforded security of tenure regardless of

status

COVERAGE OF RIGHT

Art. 278. Coverage. The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.

Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

CLASSIFICATION OF EMPLOYMENT STATUS

• This article is not a yardstick for determining the existence of the an employment relationship because it mainly distinguishes regular and casual employees, for purposes of determining the right of an employee to certain benefits, to join or form a union, or to security of tenure (Phil. Global case, June 2005)

• Any agreement may provide that one party shall render services for and in behalf of another for a consideration without being hired as an employee. This is true in the case of independent contractorship as well as in agency agreements.

REGULAR EMPLOYMENT, TEST OF DETERMINATIONAn employment is deemed regular where the employee either:

1. Has been engaged to perform which are usually necessary or desirable in the usual business or trade of an employer

a. Opulencia Ice Plant and Storage v. NLRC, 46 SCAD 821: Determination of regular or casual employment is not affected by the fact of the employee’s regular presence in the place of work is not required, the more significant consideration being that the work of the employee is usually necessary or desirable in the business of the employer.

b. Tan v. Lagrama, 387 SCRA 393: the primary standard or test for determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer.

c. RJL Martinez v. NLRC, 127 SCRA 445: it can be inferred from the length of time that an employee has been made to do the job if the activities performed by him is usually necessary or desirable in the usual business or trade of the employer.

2. Has rendered at least one year of service, whether such



service is continuous or broken, with respect to the activity in which he is employed.

a. The employment is also considered regular but only with respect to such activity and while such activity exists.

b. Caparoso v. CA, 15 February 2007: even if an employee is engaged to perform activities that are necessary or desirable in the usual trade or business of the employer, it does not preclude the fixing of employment for a definite period.

c. Regular employment automatically attaches to the employee upon the cessation of his employment as casual employment

TEMPORARY EMPLOYMENT• Where an employee is engaged to work on a specific project

or undertaking, the completion of which has been determined at the time of the engagement of the employee

• The decisive determinant should not be the activities that the employees is called upon to perform, but the day certain agreed upon by the parties for the commencement and termination of their employment relationship

• Day certain: that which must necessarily come, although it may not known when

• While the SC upheld the validity of this form of employment, it did so with a caveat that where the circumstances were apparent that the period has been imposed to frustrate the acquisition of regular status, the same should be struck down as contrary to law, morals, customs, public order, and public policy.

FIXED-PERIOD EMPLOYMENT SHOULD COMPLY WITH THE FOLLOWING CRITERIA (Pure Foods Corp. v. NLRC, 1997)

1. The fixed period of employment was knowingly and

voluntarily agreed upon by the parties, without any force, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent

a. If the contract is one of adhesion, then there is no voluntary agreement on the fixed period employment

2. It satisfactorily appears that the employer and the employee dealt with each other on a more or less equal terms with no moral dominance whatever being exercised by the former upon the latter

a. Employees always agree on any terms of employment just to get themselves employed

*Note: There are certain forms of employment which also require the performance of usual and desirable functions and which exceed one year but don't necessarily attain regular employment status under Article 280. Seafarers are an example. They cannot be considered as regular employees. (Millares v. NLRC, 385 SCRA 306)

SEASONAL EMPLOYMENT• Where an employee is engaged to work during a particular

season on an activity that is usually necessary or desirable in the usual business or trade of the employer

• Employment usually ends at the end of the season• Termination doesn't constitute illegal dismissal• Proviso which considered as regular employees who have

rendered 1 year of service is not applicable to seasonal employees

• During off-season, the relationship of employer and employee is not severed. The seasonal employee is merely considered as on a leave of absence without pay.

CASUAL EMPLOYMENT• Where an employee is engaged to work on an activity that is



not usually necessary or desirable in the usual business or trade of the employer

• The work is purely casual when it is not part of the business in which the employer is engaged

PURPOSE OF THE LAW MAKING CASUAL EMPLOYEES WHO HAVE RENDERED AT LEAST ONE-YEAR SERVICE AS REGULAR EMPLOYEES

• The purpose is to put an end to casual employment in regular jobs which have been abused by many employers to prevent so-called casuals from enjoying the benefits of regular employees or to prevent casuals from joining unions

• This is to give meaning to the constitutional meaning of security of tenure and right to self-organization

PROJECT EMPLOYMENT• Where the employees are employed in connection with a

particular construction project or phase thereof with predetermined date of completion

• The term of employment is co-terminus with the completion of the project

• Commencement and termination of employment is determined or determinable (Integrated Contractors case 9 August 2005)

REPEATED RE-HIRING• Philsystems case: repeated rehiring as a project employee

doesn't automatically one as a regular employee• Caramol case: repeated rehiring as a project employee for

more than 44 times automatically deems one as a regular employee

• ____________: repeated rehiring deems one as a regular employee

• Rabago v. ESSO: seafarers are contractual employees and never regular

• Palomares v. NLRC: employees working on different projects doesn't automatically make one a regular employment

ENTITLEMENT TO DUE PROCESS• Eastern Employment v. BEA: contractor or employer under

legal obligation to furnish project employee of notice of termination

• Policy Instruction 19: there is legal obligation to furnish local labor office of notice of termination of project

TERMINATION OF PROJECT EMPLOYEE; PROJECT EMPLOYEES AS REGULAR EMPLOYEES

• If a construction project or any phase thereof has a duration of more than a year and the project employee is allowed to be employed therein for at least a year, such employee may not be terminated until the completion of the project or of any phase thereof in which he is employed without a previous written clearance from the Secretary of Labor. If such an employee is terminated without clearance, he shall be entitled to reinstatement with backwages. (See also Philsystems v. CA [2005])

• Where the employment of project employee is extended long after the supposed project had been finished, he shall be considered as regular employee (LT Datu Co v. NLRC, 68 SCAD 220)

• The employer should have submitted or filed as many reports of termination as there were construction projects actually finished. The failure to do so supports the claim of the respondent that he indeed was a regular employee. (Aurora Land Projects v. NLRC, 266 SCRA 48)



PROJECT EMPLOYEES IN THE WORK POOL• Two types of work pool employees—

o Original concept—with or without a project, the work pool employees continue to be employees of the employer

o New concept—there is a list of workers who are free to work outside if there is no project and necessarily, they cannot be considered as employees if they are then rendering services for another

• If the employees in the work pool are free to leave anytime and offer their services to other employers, then they are project employees employed by a construction company in a particular project or in a phase thereof

• Not necessarily regular if they are on a work pool (Abesco v. CA)

NON-PROJECT EMPLOYMENT• An employment is deemed non-project, where the

employees are employed by a construction company without reference to any particular project or a phase thereof

NON-PROJECT EMPLOYMENT IN THE WORK POOL• Members of a work pool from which the construction

company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees for an indefinite period

• If they are employed in a particular project, the completion of the project or of any phase thereof will not mean severance of the EER

MEMBERS OF THE WORK POOL NOT ENTITLED TO UNINTERRUPTED WORK

• Members of the work pool merely maintain their

employment status notwithstanding completion of the project or phase of work where they are assigned but they are not entitled to an uninterrupted work

TYPES OF NON-PROJECT EMPLOYEES1. Probationary2. Regular3. Casual

ROOS CONSTRUCTION V. NLRC, FEBRUARY 4, 2008• Absent a project employment contract and termination

contract, a worker is considered a regular employee• Cites Maraginot v. NLRC—

o Continuous rehiring after cessation of projecto Work in project is desirable or necessary to the usual

business of the employer Art. 281. Probationary employment. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

PROBATIONARY EMPLOYEE• One, who for a given period of time, is under observation

and evaluation to determine whether or not he is qualified for permanent employment

• During the probationary period, the employer is given the opportunity to observe the skill, competence, and attitude of



the employee while the latter seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment

• Computation is on a calendar day basis and it reckons from date of employment regardless of any intervening date

• It must be made known to the employee before commencement of probationary employment

• Probationary employee only enjoys a temporary employment

CHARACTERISTICS OF PROBATIONARY EMPLOYMENT(Dela Cruz v. NLRC, GR 145417, 11 December 2003)

1. It is an employment for a trial period2. It is a temporary employment status prior to regular

employment3. It arises through a contract with the following elements

a. The employee must learn and work at a particular type of work

b. Such work calls for certain qualifications, skills, experience, or training

c. The probation is fixedd. The employer reserves the power to terminate the

employment during or at the end of the trial periode. If the employee has learned the job and performed it

to the satisfaction of the employer, he becomes a regular employee

DURATION OF PROBATIONARY EMPLOYMENTBuiser v. Leogardo, 131 SCRA 151

• As a general rule, the probationary period of employment is limited to 6 months

• Exceptions to the general rule:o When the parties agree otherwiseo When it is established by the company policy

o When the same is required by the nature of the work performed by the employee

Policy Instruction No. 11, Section 6a, Rule 1, Book VI, Rules Implementing the Labor Code

• If the job is apprenticeable, the probationary employment is the apprenticeship period which is not more than 6 months nor less than 3 months, depending on the nature of the job

• If the job is non-apprenticeable/learnable, then the probationary employment is the learnership period which is not more than 3 months

• Upon expiration of the training period, the apprentice or learner becomes a regular employee and doesn't undergo anymore a probationary period in the company that conducted the training program. However in another company, he can be placed under probationary employment period.

EXTENSION BY AGREEMENT• The employer and employee may extend by agreement the

probationary employment beyond 6 months• If thus extended, the employee cannot later on claim regular

status on the ground that the 6-month period had already elapsed

• Remember, the general rule is that an employee who is allowed to work after the probationary period shall be considered a regular employee. The exception is the agreement by the parties to extend probationary employment. (Mariwasa Manufacturing v. Leogardo, GR 74246, 26 January 1989)

• SMC v. Del Rosario (2004): if its company policy and is required by the nature of the work. This must however be exercised before the expiration of the period.



ENTITLEMENT TO SECURITY OF TENURE• Dusit Hotel case, 2005: Absent any valid extension, the

employee is deemed to have qualified as a regular employee• How about private school teachers? (Lacuesta case)

o Teacher has a full loado Teachers in tertiary load must have taught for 6

consecutive semesterso Teacher’s performance must be satisfactory

• A regular employee cannot be subjected to a probationary employment again even by a sister company

DOUBLE OR SUCCESSIVE PROBATION NOT ALLOWED• The system of double or successive probation is not allowed• The evil sought to be prevented is to discourage scheming

employers from using the system to circumvent the mandate of the law on regularization and make it easier for them to dismiss their employees

TERMINATION OF PROBATIONARY EMPLOYMENT• Probationary employees are protected by the security of

tenure provision of the Constitution• However, the services of the employee engaged in

probationary basis may be terminated on two grounds—o For a just causeo When he fails to qualify as a regular employee in

accordance with reasonable standards made known by the employer to the employee at the time of his engagement

LABAJO V. ALEJANDRO • Contract employees enjoy security of tenure to a limited

extent

SKILLWORLD MANAGEMENT AND MARKETING

CORPORATION V. NLRC • A probationary employee cannot be dismissed without a just

cause

INTERORIENT MARITIME ENTERPRISES V. NLRC• Management employees cannot be dismissed arbitrarily and

without cause as determined through appropriate investigation

GUIDELINES FOR THE IMPOSITION OF PENALTIES1. Dismissal is the ultimate penalty imposable upon an

employee2. Dismissal should be based on clear and unambiguous

grounds3. Where a penalty less punitive would suffice, whatever

missteps may have been committed ought not to be visisted with a consequence so severe

4. With respect to loss of confidence and breach of trust, the basic premise is that the position held is one of trust and confidence

5. There is a wider latitude in dismissing managerial employees as they perform functions which require full trust and confidence

6. With respect to rank-and-file employees and the ground for dismissal is loss of confidence and breach of trust, there should be showing of proof of involvement by said employee

TERMINATION OF EMPLOYMENT BY EMPLOYEE

Art. 285. Termination by employee.a. An employee may terminate without just cause the employee-

employer relationship by serving a written notice on the



employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.

b. An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes:

1. Serious insult by the employer or his representative on the honor and person of the employee;

2. Inhuman and unbearable treatment accorded the employee by the employer or his representative;

3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and

4. Other causes analogous to any of the foregoing.

WHAT ARE THE JUST CAUSES FOR AN EMPLOYEE TO TERMINATE EMPLOYMENT?

1. Serious insult by the employer or his representative on the honor and person of the employee

2. Inhuman and unbearable treatment3. Commission of a crime or offense by the employer or his

representative against the person of the employee or any of the immediate members of his family

4. Other analogous cases

WHAT ARE THE REQUISITES FOR TERMINATION WITHOUT JUST CAUSE?

• One month notice to the employer

VOLUNTARY RESIGNATION

• When an employee finds himself in a situation where personal reasons may not be sacrificed in favor of the exigency of the service and he has no other choice but to sever employment

• There should be intent and the accompanying overt act of resignation

• To be considered valid, acts before and after the resignation of the employee is considered

• The employer has the burden of proof to show that there was voluntary resignation on the part of the employee

WHAT ARE THE REQUISITES FOR RESIGNATION?1. The resignation should be unconditional2. It should be intentional

Note: when one was compelled to make a choice to resign or be dismissed, such resignation was invalid due to unjustifiable pressure (Metro Transit Organization v. NLRC)

VALIDITY OF AUTOMATIC RESIGNATION• Manila Broadcasting Corporation v. NLRC: it was a sound

company policy to deem broadcasters as automatically resign upon filing of a certificate of candidacy

• Ibid: the broadcaster cannot serve two masters efficiently at the same time while he is campaigning or otherwise serving public office

PERFORMANCE OF MILITARY OR CIVIC DUTY; CESSATION OF BUSINESS FOR 6 MONTHS

Art. 286. When employment not deemed terminated. The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such



cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.

NOTES:• Not exceeding 6 months: bona fide cessation of operations• Fulfillment of military or civic duty• Employee within 1 month from resumption of operations

expresses his desire to resume work

TERMINATION OF EMPLOYMENT BY EMPLOYER

BASIS OF RIGHT OF EMPLOYER• PLDT v. Balbastro: the benefits afforded to labor don't

include compelling an employer to retain the services of an employee who has shown himself to be a gross liability to the employer

• Manila Trading and Supply v. Zulueta: employer may not be compelled to retain employee who committed malfeasance or misfeasance towards the employer

• Agabon v. NLRC: the social justice clause in the Constitution is not applicable when the employee was the one who violated

• PLDT v. Tolentino: strained relations test is to be applied strictly in termination cases

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;

b. Gross and habitual neglect by the employee of his duties;

c. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

d. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

e. Other causes analogous to the foregoing.

Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.



Art. 284. Disease as ground for termination. An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.

FUJITSU COMPUTER PRODUCTS V. CA• Dismissal should be exercised without abuse of discretion

ARIOLA V. PHILEX MINING• Applied the ruling in Agabon• Belated due process rule: the lack of notice doesn't erase the

crime committed

SUICO V. NLRC• The law allows itself to be supplemented by company

policies as long as the same are in accordance with the guidelines provided for in the implementing rules and regulations

JUST CAUSES: SUBSTANTIVE DUE PROCESS

WHAT DOES THE ACTS ENUMERATED IN ARTICLE 282 DESCRIBE?

• The attitude of the employee towards his work• The enumerated causes have a qualifying phrase• There is a connective word (and, or)• Then it is followed by the requirements for each cause to

exist as provided by jurisprudence

IN WHAT FORM DOES ANALOGOUS CAUSES BECOME

SIGNIFICANT IN THE ENUMERATED CASES IN ARTICLE 282? WHAT IS YOUR FRAME OF REFERENCE?

• Remember that Article 282 tackles the attitude of the employee towards his employer, fellow employees, and work

• It is significant because one is analogous only to another if it is susceptible of with the earlier enumerated cases, either generally or specifically, or has close relationship with the others

• It has to be voluntary or through the willful intent of the employee

• The relationship to the other cases depends on the circumstances of each case

CONSTRUCTION OF “ANALOGOUS CASES”• Should be strictly construed against the employer

ANALOGOUS CASES• One is analagous to another if it is susceptible of comparison

with latter, either in general as in some specific detail, or has close relationship with the latter

• The determination of whether the cause for terminating the employment is analogous depend on the circumstances of each case

• To be considered analogous to the just causes, a cause must be due to the voluntary and/or willful act or omission of the employee

SERIOUS MISCONDUCT• Misconduct is wrong or improper conduct• Transgression of some established or definite rule of action,

a forbidden act, a dereliction of duty, willful in character and implies wrongful intent

• It is not enough that the employee commits misconduct but



it must be serious• Focus on a common denominator with other just cause—the

infraction must be in relation with the performance of the employee’s duties

• Echevarria, 2007: misconduct in relation to the employee’s duties

UNDER ARTICLE 282 OF THE LABOR CODE, THE MISCONDUCT, TO BE A JUST CAUSE FOR TERMINATION, MUST BE OF SUCH GRAVE AND AGGRAVATED CHARACTER, NOT MERELY OF A TRIVIAL OR UNIMPORTANT NATURE

• For serious misconduct to warrant the dismissal of an employee, it (1) must be serious; (2) must relate to the performance of the employee’s duty; and (3) must show that the employee has become unfit to continue working for the employer

DOES A TEACHER FALLING IN LOVE AND MARRYING HER YOUNGER STUDENT CONSTITUTE SERIOUS MISCONDUCT AND WOULD MERIT DISMISSAL? (CHUA QUA V. CLAVE; SECTARIAN SCHOOL)

• No, it is not serious misconduct and constitutes illegal dismissal

• There was insufficient evidence to show that the teacher used her position as a teacher to take advantage of the student

PLDT V. BOLSO• Serious misconduct is improper or wrong conduct—it is the

transgression of some established and definite rule of action, a forbidden act, a dereliction of duty

SUPREME STEEL CORPORATION V. SY

• Serious misconduct is improper or wrong conduct—it is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty

• Although fighting within company premises may constitute serious misconduct, not every fight within the same in which an employee is involved would automatically warrant dismissal from the service

• It is cruel and unjust to impose the drastic penalty of dismissal if not commensurate to the gravity of the offense

SULAPAS V. BASCO• Grave misconduct manifests a clear intent to violate the law

or fragrant disregard of an established rule

RODRIGUEZ V. EUGENIO• A process server who asked for bribe from a party litigant is

guilty of gross misconduct

PUNZAL V. ETSI TECHNOLOGIES• Even though there was serious misconduct, it wasn't related

to the employee’s work as it was made during an informal Chritsmas gathering of the employees, and it is expected that employees freely express their grievances and gripes against their employers

• Lack on the part of the company of any urgency in taking action negates its claim of serious misconduct on the part of the employee

CANSINO V. PRUDENTIAL SHIPPING• Serious misconduct in the form of drunkenness and violent

behavior, habitual neglect of duty, and insubordination or willful disobedience to the lawful orders of his superior officer, are just causes for dismissal



TORRALBA V. TOSHIBA• The commission of libel against a superior officer constitutes

serious misconduct

VALIAO V. COURT OF APPEALS• Gross negligence connotes want of care in the performance

of one’s duties while habitual neglect implies the repeated failure to perform one’s duties for a period of time, depending upon the circumstances

• Habitual absenteeism without leave constitutes gross negligence and is sufficient to justify termination of an employee

• The totality of infranctions or the number of violations committed during the employment period shall be considered in determining the penalty to be imposed upon the erring employee

• Fitness for continued employment cannot be compartmentalized into tight little cubicles of conduct, character, and ability separate and independent of each other

VILLAMOR GOLF CLUB V. PEHID• While an employee may be validly dismissed for a violation

of a reasoned rule of an employer for the conduct of his business, an act allegedly in breach thereof must clearly and convincingly fall within the express intendment of such rule

WILLFUL DISOBEDIENCE1. Instructions must be reasonable and lawful

2. Sufficiently known to the employee

3. In connection with his duties which the employee has engaged to discharge

• PAL v. NLRC: the company rules cannot constitute a lawful order as it didn't follow proper composition

IS THERE A GROUND TO DISMISS AN EMPLOYEE IF HE VIOLATES A COMPANY POLICY PROHIBITING A MANAGERIAL EMPLOYEE FROM HAVING AN AMOROUS RELATIONSHIP WITH A RANK-AND-FILE OR FELLOW MANAGERIAL EMPLOYEE?

• Point of reference: willful disobedience• It could be argued that the employee cannot be dismissed

validly given the absent of any just or authorized cause. The violation of the company policy cannot be anchored on willful disobedience. It can be argued that the instruction is unreasonable because having an amorous relationship with a co-worker has no connection with the efficacious discharge of his duties.

A FRIENDLY ATTY. DISINI REMINDER: It is important not to only read the cases and know the doctrines, but more importantly, to understand how the doctrines were crafted. You should understand the principles behind the doctrines and how it will be applied.

In answering a question, first ask the black-letter law on which you are anchoring your answer. Second, identify the case doctrine applicable to the situation. Third, learn how the doctrine was drafted. Lastly, learn how to identify the doctrine to the given situation.

“You can read the cases till kingdom come but you won’t be able to answer the question till you know how the doctrine was crafted and how it is applicable.”



BASCON V. COURT OF APPEALS

The elements of gross insubordination are the following:

1. Reasonableness and lawfulness of the order or directive

2. Sufficiency of knowledge of the employee

3. Connection of the order with the duties which the employee had been engaged to discharge

GROSS AND HABITUAL NEGLECT OF DUTY• Gross neglect means an absence of that diligence that an

ordinarily prudent man would use in his own affairs• A single and isolated act of negligence doesn't constitute a

just cause for termination• Gross negligence connotes want of care in the performance

of one’s duties• Habitual neglect implies repeated failure to perform one’s

duties for a period of time, depending upon the circumstances

• Fraud and will neglect connote bad faith on the part of the employee in failing to perform his job to the detriment of the employer and the latter’s business

CAN PAST INFRACTIONS OF AN EMPLOYEE BE TAKEN ALTOGETHER AS BASIS TO DISMISS HIM?

• Yes, using “gross and habitual neglect of duty” as basis

R TRANSPORT V. EJANDRA

To constitute abandonment, two elements must concur—

1. The failure to show or report for work without valid or justifiable reason

2. A clear intention to sever the employer-employee relationship

GROSS AND HABITUAL NEGLECT IS CONNECTED WITH ABANDONMENT

1. Failure to report for work without valid and justifiable reason

2. Clear intention to sever EER and this must be shown thru over acts

3. The employer must have reported such fact with the nearest DOLE office (Department Order 9, series 1997)—without this, there is no case of abandonment

4. Micro Sales Network v. NLRC, 11 October 2005: a. Hermosa was unjustly dismissed. b. For willful disobedience to be a valid cause for

dismissal, the following twin elements must concur: (1) the employee's assailed conduct must have been willful, that is, 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.

c. Both elements are lacking. We find no hint of perverse attitude in Hermosa’s written explanation. On the contrary, it appears that the alleged company procedure for leaving the ignition key of the company’s vehicles within office premises was not even made known to him.

5. Big AA Manufacturing v. Antonio, 3 March 2006a. For accusing respondents of abandonment,



petitioner must present evidence (1) not only of respondents’ failure to report for work or absence without valid reason, but (2) also of respondents’ clear intention to sever employer-employee relations as manifested by some overt acts. The second element is the more determinative factor.

b. Here, petitioner’s argument in support of its abandonment charge was that respondents may have resented its issuance of the Implementing Guidelines. This, in our view, fails to establish respondents’ intention to abandon their jobs. On the contrary, by filing the complaint for illegal dismissal within two days of their dismissal on January 11, 2000 and by seeking reinstatement in their position paper, respondents manifested their intention against severing their employment relationship with petitioner and abandoning their jobs. It is settled that an employee who forthwith protests his layoff cannot be said to have abandoned his work.

**There are times when abandonment is tantamount to serious misconduct. There is also times when serious misconduct is tantamount to willful disobedience.

*ABANDONMENT• Deliberate and unjustified refusal of an employee to resume

his employment• It is a form of neglect of duty

REQUIREMENTS FOR ABANDONMENT TO EXIST(AGABON V. NLRC, 17 NOVEMBER 2004)

1. The failure to report for work or absence without valid or justified reason

2. Clear intention to sever the EER, with the second as the more

determinative factor which is manifested by overt acts from which it may be deduced that the employee has no intention to work

FRAUD OR WILLFUL BREACH OF TRUST• Fraud is defined as any act, omission, or concealment which

involves a breach of legal duty, trust or confidence justly reposed, and is injurious to another

• To be constituted as a just cause for dismissal, the fraud must be committed against the employer or representative and in connection with the employee’s work

• As such, fraud committed by an employee against third persons doesn't in anyway involve his employer and thus, is not a just cause for dismissal

• Loss of confidence applies only to cases of employees who occupy positions of trust and confidence, or to those situations where the employee is rountinely charged with the care and custody of the employer’s money or property

• The willful breach must be connected with fraud

POSITION OF TRUST AND CONFIDENCE• One where a person is entrusted with confidence on delicate

matters, or with the custody, handling, or care and protection of the employer’s property and/or funds

• Basic premise is that the employee concerned holds a position of trust and confidence, and it is his breach of this trust that results in the employer’s loss of confidence

• The act must be work-related to show that the employee is unfit to continue working for the employer

EXAMPLES OF POSITIONS CONSIDERED TO BE OF TRUST AND CONFIDENCE

1. Bookkeeper2. Purchaser



3. Accountant4. Cashier5. Salesman6. Bank teller7. Ship captain8. Managerial employee

GUIDELINES FOR THE DOCTRINE OF LOSS OF CONFIDENCE (TOLENTINO V. PLDT, 8 JUNE 2005)

• However, loss of trust and confidence or grave misconduct must not be based on unsubstantiated suspicions, conjectures or surmises.

• Loss of trust and confidence as a just cause for termination of employee must rest on a breach of duty committed by the employee and not on the caprices of the employer.

1. Loss of confidence shouldn't be simulated2. It shouldn't be used as a subterfuge for causes which are

improper, illegal, or unjustified3. Loss of confidence may not be arbitrarily asserted in the face

of overwhelming evidence to the contrary4. It must be genuine, not a mere afterthought to justify earlier

action taken in bad faith5. It must be substantial and not arbitrary, whimsical,

capricious, and concocted*Please note that Tolentino v. PLDT only cited the same guidelines mentioned in the case of China City Restaurant v. NLRC.

BUENASEDA DOCTRINE: A PHYSICIAN WHO FAILS TO QUALIFY TO A HIGHER LEVEL OF MEDICAL EDUCATION CAN BE DISMISSED. VALID COMPANY POLICY FOR DISMISSAL?

• Can be argued to be a valid company policy• Preservation of lives is of paramount consideration in the

medical profession and a doctor has to reach certain qualifications to efficiently carry out this duty

COMMISSION OF A CRIME• Commission of a crime involving moral turpitude is not one

of the just causes under the law• This refers to an offense against the person of the employer

or any immediate member of his family or his duly authorized representative

ATTY DISINI REMINDER: Read Article 282 carefully. First, it is the most litigated area in labor standards law. Second, it is a bountiful ground for bar exam questions. Reading it, it limits the just causes for dismissal. However, there is the “analogous cases”. Again, remember his reminder about knowing the law, understanding the doctrines, and knowing how to apply it.

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