Just Causes for Termination of Employment by Employer

It is the prerogative of the management to employ the services of a person. Similarly, it has the prerogative to dismiss or layoff an employee. The exercise of that prerogative must however be made without abuse of discretion, for what is at stake is not only the employee’s position but also his means of livelihood.

Article 297 of the Labor Code of the Philippines provides the just causes where an employer can terminate the employment of an employee. Thus:

Art. 297 (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.

The above causes are directly attributable to the fault or negligence of the employee. Hence, he is not entitled to separation pay. However, it will not prejudice his rights, benefits and privileges he may have under applicable individual or collective bargaining agreement or voluntary employer policy or practice (Sec. 7, Rule I, Book VI, Rules and Regulations Implementing the Labor Code).

Other causes of termination include the following:

1. Abandonment of work in relevance to Article 297 paragraph (b)

2. Union security clause in relevance to Article 259 paragraph (e)

3. Totality of infractions doctrine

a. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work

Serious misconduct, defined

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, willful in character, and implies wrongful intent and not mere error in judgement.

The misconduct to be serious must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless, be in connection with the employee’s work to constitute just cause for his separation. Minor misconduct cannot justify dismissal (RCPI vs. NLRC, G.R. No. 113178, Jul. 5, 1996 and Villaflores vs. NLRC, G.R. No. 114777, Jul. 5, 1996) under the principle of commensurate penalty.

The charge of serious misconduct must not be a mere afterthought (Coca-Cola Export Corp. vs. Gacayan, G.R. No. 149433, Dec. 15, 2010).

Elements of serious misconduct

For serious conduct to be a valid ground for termination, the following must be present:

1. There must be misconduct;

2. The misconduct must be of such grave and aggravated character;

3. It must relate to the performance of the employee’s duties; and

4. There must be showing that the employee becomes unfit to continue working for the employer.

Some principles on serious misconduct committed by employee

Destroying the properties of the company, assaulting the company’s House Officer while under the influence of liquor, within the company premises during working hours, constitutes just cause for the dismissal of the pin boy on the ground of serious misconduct (Club Filipino, Inc. vs. Sebastian, G.R. No. 85490, Jul. 23, 1992).

Touching a female subordinate’s hand and shoulder, caressing her nape constitute sexual harassment which is serious misconduct for she was placed in a hostile, intimidating or offensive environment (Libres vs NLRC, G.R. No. 123737, May 28, 1999). Sexual intercourse inside company premises constitutes serious misconduct (Standford Microsystems, Inc. vs NLRC, G.R. No. L-74187, Jan. 28, 1988).

Dismissal from the service on account of series of irregularities perpetrated when put together constitutes serious misconduct which is a just cause for dismissal (Gustilo vs. Wyeth Phils., Inc., G.R. No. 149629, Oct. 4, 2004).

Committing libel against an immediate superior constitute serious misconduct (Torreda vs. Toshiba Information Equipment, Inc., G.R. No. 165960, Feb. 8, 2007). Challenging superiors to a fight (Luzon Stevedoring Corporation vs. CIR, G.R. No. L-18683, Dec. 31, 1965) and assaulting another employee Haverton Shipping Ltd. vs. NLRC, G.R. No. 65442, Apr. 15, 1985) are a just cause for termination.

Fighting is a ground for termination but only the instigator or aggressor and not the victim who was constrained to defend himself should be dismissed (Garcia vs. NLRC, G.R. No. 116568, Sep. 3, 1999). Utterance of obscene, insulting or offensive words constitutes serious misconduct (Echeverria vs. Venutek Medika, Inc., G.R. No. 169231, Feb. 15, 2007). Possession or used of shabu or other drugs is a valid ground to terminate employment (Roquero vs. PAL, G.R. No. 152329, Apr. 22, 2003).

Willful disobedience to the lawful orders of the employer or representative in connection with his work or insubordination

Lawful orders of the employers are usually expressed by way of company rules and regulations. In order that the willful disobedience by the employee may constitute a just cause for terminating his employment, the orders, regulations, or instructions of the employer or representative must be a) reasonable and lawful; b) sufficiently known to the employee; and c) in connection with the duties which the employee has engaged to discharged.

Where an order or rule is not reasonable, in view of the terms of the contract of employment and the general rights of the parties, a refusal to obey does not constitute a just cause for the employee’s discharge. As to what is a reasonable rule or order will depend on the circumstances of each case. Reasonableness, however, has reference not only to the kind and character of directions and commands, but also the manner in which they are made. The employee’s disobedience, in order to justify his dismissal under this provision, must relate to substantial matters, not merely to trivial or unimportant matters. Furthermore, disobedience to be considered willful must be resorted to without regard to its consequences (BLTB Co. vs CA, 71 SCRA 470; Family Planning Org. of the Phil. vs. NLRC, G.R. No. 79907, Mar. 23, 1992).

Insubordination, defined

Insubordination refers to the refusal to obey some order, which a superior is entitled to give and have obeyed. It is a willful or intentional disregard of the lawful and reasonable instructions of the employer (Civil Service Commission vs. Arandia, GR. No. 199549, April 7, 2014).

Elements of willful disobedience or insubordination

To be a valid ground for termination, the following must be present :

1. There must be disobedience or insubordination;

2. The disobedience or insubordination must be willful or intentional characterized by a wrongful and perverse attitude;

3. The order violated must be reasonable, lawful, and made known to the employee; and

4. The order must pertain to the duties which he has been engaged to discharge.

Some principles on willful disobedience or insubordination

Employee’s refusal to carry on legitimate orders which would prejudice reputation and goodwill of the company constitutes a conspiracy against its existence and is a just cause for dismissal. One of the fundamental duties of an employee is to yield to all reasonable rules, orders, and instructions of the employer. Any willful and intentional disobedience thereof justifies rescission of the contract of service and the peremptory dismissal of the employee (BLTB Co. vs. CA, 71 SCRA 470).

Failure to answer memo to explain constitutes will disobedience (Ace Promotion and Marketing Corp. vs. Ursabia, G.R. No. 171703, Sep. 22, 2006) but another notice is required in case of termination on the ground of failure to answer memo to explain.

Refusal to undergo random drug testing constitutes insubordination. Refusal to render overtime to meet production deadline constitutes insubordination (R.B. Michael Press vs. Galit, G.R. No. 153510, Feb. 13, 2008).

Refusal to comply with a lawful transfer constitutes insubordination (San Miguel Corp. vs. Pontillas, G.R No. 155178, May 7, 2008). While it may be true that the right to transfer or reassign an employee is an employer’s exclusive right and prerogative of management, such is not absolute. The right of an employer to freely select or discharge his employees is limited by the paramount police power (PAL, Inc. vs. PAL Employees Association, G.R. No. L-24626, Jun. 28, 1974), for the relations between capital and labor are not merely contractual but impressed with public interest (Art. 1700, New Civil Code). And neither capital nor labor shall act oppressively against each other (Art. 1701, New Civil Code; Dosch vs. NLRC, G.R. No. L-51182, Jul. 5, 1983). An employee’s refusal was not contumacious. It was justified on personal and family reasons. Strong family ties is a peculiar trait of the Filipinos. Indisputably, because of this character trait, Filipinos find it difficult to be separated from their loved ones. For this, the employee should not be faulted.

Insubordination or acts of disobedience when simple and not serious or gross do not constitute a just cause for dismissal. Refusal to obey an order is not insubordination when it is sufficiently explained (Union of Supervisors vs. Sec. of Labor, 109 SCRA 130).

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

Gross neglect, defined

Gross neglect refers to the absence of that diligence that an ordinary prudent man would use in his/her own affairs (Reyes v. Maxim’s Tea House, GR. No. 140853, February 27, 2003).

Habitual neglect, defined

Habitual Neglect refers to repeated failure to perform one’s duties over a period of time, depending upon the circumstances (JGB and Associates, Inc. vs. NLRC, G.R. No. 109390, Mar. 7, 1996).

Neglect of duties must not only be gross but must also be habitual

Gross neglect means an absence of that diligence that an ordinarily prudent man would use in his own affairs. In order to constitute a just cause for the employee’s dismissal, the neglect of duties must not only be gross but must also be habitual. Thus, a single or isolated act of negligence does not constitute a just cause for the dismissal of the employee. To justify the dismissal of an employee for neglect of duties, however, it does not seem necessary that the employer show that he has incurred actual loss, damage or prejudice by reason of the employee’s conduct. It is sufficient that the gross and habitual neglect by the employee of his duties tends to prejudice the employer’s interest since it would be unreasonable to require the employer to wait until he is materially injured before removing the cause of the impending evil (DOLE Manual).

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. On the other hand, fraud and willful neglect of duties imply 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 (JGB and Associates, Inc. vs. NLRC, G.R. No. 109390, Mar. 7, 1996).

Elements of gross and habitual neglect of duties

To be a valid ground for termination, the following must be present :

1. There must be neglect of duty; and

2. The negligence must be both gross and habitual in character.

Some principles on gross and habitual neglect of duties

Habitual absenteeism without leave is sufficient to justify termination of an employee. Habitual or prolonged absences constitute gross negligence (Club Filipino, Inc. vs. Sebastian, G.R. No. 85490, Jul. 23, 1992).

Tardiness and absenteeism, if habitual, may be cited as a ground to terminate employment (Valiao vs. CA, G.R. No. 146621, Jul. 30, 2004) or may be tantamount to serious misconduct (Quiambao vs. Manila Electric Company, G.R. No. 171023, Dec. 18, 2009).

Unblemished record belies allegation of gross and habitual neglect (Union Motor Corporation vs. NLRC, G.R. No. 159738, Dec. 9, 2004). Unsatisfactory or poor performance, inefficiency or incompetence, considered a just cause for dismissal only if it amounts to gross and habitual neglect of duties (Miranda vs. Carreon, G.R. No. 143540, Apr. 11, 2003).

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

Commission of fraud by an employee against the employer will necessarily result in the latter’s loss of trust and confidence in the former. However, the ground of willful breach by the employee of the trust and confidence reposed in him by the employer may not necessarily involved fraud but some other acts that would similarly result in the loss of such trust and confidence.

Fraud, defined

Fraud refers to any act, omission, or concealment which involves a breach of legal duty, trust or confidence justly reposed, and is injurious to another. (Phil Education Co. v. Union of the Phil Education Employees, GR. No. L-13778, April 29, 1960; Lepanto Consolidated Mining v. CA, GR No. L-15171, April 29, 1961).

To constitute a just cause for terminating the employee’s services, the fraud must be committed against the employer or representative and in connection with the employee’s work. Thus, the fraud committed by an employee against a third person not in connection with his work which does not in any way involve his employer is not a ground for dismissal of the employee (Ibid).

The circumstances evidencing fraud and misrepresentation are as varied as the people who perpetrate it, each assuming different shapes and forms and may be committed in as many different ways. Fraud and misrepresentation are, therefore, never presumed; it must be proved by clear and convincing evidence and not mere preponderance of evidence (Solidbank Corporation vs. Mindanao Ferroalloy Corporation, G.R. No. 153535, Jul. 28, 2005).

Elements of fraud or willful breach of trust

To be a valid ground for termination, the following must be present :

1. There must be an act, omission, or concealment;

2. The act, omission or concealment involves a breach of legal duty, trust, or confidence justly reposed;

3. It must be committed against the employer or his/her representative; and

4. It must be in connection with the employee’s work.

Some principles on fraud or willful breach of trust

Lack of damage or losses is not necessary in fraud cases (Diamond Motors Corporation vs. CA, G.R. No. 151981, Dec. 1, 2003). Failure to deposit collection constitutes fraud (Aldeguer & Co., Inc./Loalde Botique vs. Tomboc, G.R. No. 147633, Jul. 28, 2008). Restitution does not have absolutory effect (Gonzales vs. NLRC, G.R. No. 131653, Jul. 2, 2010). Lack of misappropriation or shortage is immaterial in case of unauthorized encashment of personal checks by teller and cashier (Central Pangasinan Electric Cooperative, Inc. vs. Macaraeg, G.R. No. 145800, Jan. 22, 2003).

The employer has a distinct prerogative to dismiss an employee if the former has ample reason to distrust the latter or if there is sufficient evidence to show that the employee has been guilty of breach of trust (Top Form Mfg., Co., Inc. vs. NLRC, G.R. No. 65706, Dec. 11, 1992).

The act of the Head Supervisor in initiating and leading the boycott, thereby disrupting and impairing company operations, is sufficient reason for the company to lose its trust and confidence on her, considering that she was a managerial employee whose position carries the corresponding highest degree of responsibility in improving and upholding the interests of the company and in exemplifying the utmost standard of discipline and good conduct among her co-employees, thereby justifying the termination of her employment (Ibid.).

Loss of confidence, defined

Loss of confidence refers to a condition arising from fraud or willful breach of trust by employee of the trust reposed in him/her by his/her employer or his/her duly authorized representative. There are two (2) classes of positions of trust. The first class consist of managerial employees, or those vested with the power to lay down management policies; and the second class consists of cashiers, auditors, property custodians or those who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property (Esguerra v. Valle Verde Country Club, Inc. and Ernesto Villaluna, GR. No. 173012, June 13, 2012).

Elements of loss of confidence

To be a valid ground for termination, the following must be present :

1. There must be an act, omission or concealment;

2. The act, omission, or concealment justifies the loss of trust and confidence of the employer to the employee;

3. The employee concerned must be holding a position of trust and confidence;

4. The loss of trust and confidence should not be simulated;

5. It should not be used as a subterfuge for causes which are improper, illegal or unjustified; and

6. It must be genuine and not a mere afterthought to justify an earlier action taken in bad faith.

Position of trust and confidence

A position of trust of confidence is 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 (Lepanto Consolidated Mining Co. vs. CA, G.R. No. L-15171, Apr. 29, 1961).

The basic premise for a valid dismissal on account of willful breach of trust 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 in the employee (Estiva vs. NLRC, G.R. No. 95145, Aug. 5, 1993). The act complained of must be work-related to show that the employee is unfit to continue working for the employer (Gonzales vs. NLRC, 355 SCRA 197).

Two classes of positions of trust and confidence

1. Managerial positions

2. Non-managerial positions whose holders thereof regularly handle significant amounts of money or property in the normal and routine exercise of their functions (Bristol Myers Squibb, Inc. vs. Baban, G.R. No. 167449, Dec. 17, 2008). Based on jurisprudence, some positions classified as such are: supervisor, bookkeeper or accounting clerk, purchaser, accountant, cashier, salesman, bank teller, engineer, security guard or security officer, roomboy or chambermaid, assistant cook or chief cook, chief purser.

Rules on termination of managerial employee and supervisor and rank-and-file employees

As a general rule, the doctrine of trust and confidence is restricted to managerial employees. This means that the rule on termination of employment applicable to managerial or fiduciary employees are different from those involving ordinary employees not holding positions of trust and confidence. In the latter case, mere accusations by the employer will not be sufficient. Thus, with respect to rank-and-file employee, loss of trust and confidence as a ground for valid dismissal requires proof of involvement in the alleged events in question and that mere uncorroborated assertions and accusations by the employer will not be sufficient. But as regards a managerial employee, the mere existence of a basis for believing that such employee has breached the trust of his employer would suffice for his dismissal.

Some principles on loss of trust and confidence

Long years of service, absence of derogatory record and small amount involved, are deemed inconsequential insofar as loss of trust and confidence is concerned (Etcuban, Jr. vs. Sulpicio Lines, Inc., G.R. No. 148410, Jan. 17, 2005). Dropping of criminal charges or acquittal in a criminal case arising from the same act does not affect validity of dismissal based on loss of trust and confidence (Metro Transit Organization, Inc. vs. CA, G.R. No. 142133, Nov. 19, 2002).

Breach must be founded on clearly established facts (Asia Pacific Chartering, Inc. vs. Farolan, G.R. No. 151370, Dec. 4, 2002), it must be willful and without justifiable excuse (Baron vs. NLRC, G.R. No. 182299, Feb. 22, 2010) and must be work related (Alcantara vs. The Philippine Commercial and Industrial Bank, G.R. No. 151349, Oct. 20, 2010). Ordinary breach of trust will not suffice (Salas vs. Aboitiz One, Inc., G.R. No. 178236, Jun. 27, 2008).

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

Commission of a crime

Conviction of a crime involving moral turpitude is not one of the justifiable causes under the law (JISSCOR Independent Union vs. Hon. Torres, 221 SCRA 699).

The commission of a crime by the employee under the law refers to an offense against the person of his employer or any immediate member of his family or his duly authorized representative, and thus the conviction of a crime involving moral turpitude is not analogous thereto as the element of relation to his work or to his employer is lacking (Ibid).

The immediate members of the family refers to parents, children, brothers, sisters, grandparents and grandchildren.

Elements of commission of a crime or offense

To be a valid ground for termination, the following must be present :

1. There must be an act or omission punishable/prohibited by law; and

2. The act or omission was committed by the employee against the person of the employer, any immediate member of his/her family, or his/her duly authorized representative.

e) Other causes analogous to the foregoing

Analogous causes

One is analogous to another if it is susceptible of comparison with the latter, either in general as in some specific detail, or has close relationship with the latter (Lim vs. NLRC, G.R. No. 118434, Jul. 26, 1996).

The determination of whether the cause for terminating employment is analogous to any of those enumerated by the law will 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 (Nadura vs. Benguet Consolidated, Inc., G.R. No. L-17780, Aug. 24, 1962).

Elements of analogous cases

To be a valid ground for termination, the following must be present:

1. There must be act or omission similar to those specified just causes; and

2. The act or omission must be voluntary and/or willful on the part of the employees.

No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies.

Some principles on analogous cases

Violation of company rules and regulations, such as the no-smoking or no-sleeping rule or the liquor ban rule (Castil vs. CIR, 39 SCRA 76; Northern Motors vs. NLU, 102 Phil. 958; PAL vs. NLRC, 124 SCRA 583), or no-gambling rule (Villa vs. NLRC, supra). Theft of company property such as involvement in the loss or theft of company cargoes (Sea Land Service, Inc. vs NLRC, G.R. No. 68212, May 24, 1985).

Immorality, drunkenness or fighting inside the company premises may constitute analogous causes (Qua vs. Hon. Jacobo Clave, G.R. No. 49549, Aug. 30, 1990). This is regardless of whether or not the quarrel (fighting) was purely personal or work-related (Navarro III vs. Hon. Damasco, G.R. No. 101875, Jul. 14, 1995).

Gross inefficiency is an analogous cause for termination. It is clearly related to gross neglect for both involve specific acts or omissions on the part of the employee resulting in damage to the employer or to his business (Lim vs NLRC, G.R. No. 118434, Jul. 26, 1996).

Other causes of termination

1. Abandonment of work

Abandonment is a form of neglect of duty. Hence, a just cause for termination of employment under Article 282 (now Art. 297) paragraph (b) of the Labor Code (Forever Security & General Service vs. Flores, G.R. No. 147961, Sep. 7, 2007).

Mere absence is not enough to constitute abandonment. There must be clear intention on the part of the employee to sever his or her employment relationship. An employee who stopped working because of her mistaken belief that she has been dismissed is not guilty of abandonment (Uniwide Sales Warehouse Club vs. NLRC, G.R. No. 154503, Feb. 29, 2008).

Abandonment is a factual issue (Premiere Development Bank vs. NLRC, G.R. No. 114695, Jul. 23, 1998) hence, the employer has the burden of proof to prove abandonment (Northwest Tourism Corp. vs. Former Special Third Division of the Hon. CA, G.R. No. 150591, Jun. 27, 2005).

Elements of abandonment of work

To constitute abandonment, two (2) elements must concur, namely:

1. The employee must have failed to report for work or must have been absent without valid or justifiable reason; and

2. There must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act (CRC Agricultural Trading vs. NLRC, G.R. No. 177664, Dec. 23, 2009).

Due process in abandonment

In abandonment cases, due process is consist only of the service of two (2) notices to the employee, viz.:

1. First Notice directing the employee to explain why he should not be declared as having abandoned his job; and

2. Second Notice to inform him of the employer’s decision to dismiss him on the ground of abandonment (Kingsize Manufacturing Corporation vs. NLRC, G.R. Nos. 110452-54, Nov. 24, 1994).

Notices in abandonment cases must be sent to employee’s last known address (Agabon vs. NLRC, G.R. No. 158693, Nov. 17, 2004) and no hearing is required to validly dismiss an employee for abandonment (Intertranz Container Lines, Inc. vs. Bautista, G.R. No. 187693, Jul. 13, 2010).

No abandonment in the following cases

Immediate filing of a complaint for illegal dismissal praying for reinstatement negates abandonment (Pasig Cylinder Mfg., Corp. vs. Rollo, G.R. No. 173631, Sep. 8, 2010). Employment in another firm coinciding with the filing of complaint does not indicate abandonment (Hda. Dapdap I vs. NLRC, G.R. No. 120556, Jan. 26, 1998).

Some principles on abandonment

It is abandonment when what is prayed for in the complaint is separation pay and it was only in the position paper that reinstatement was prayed for (Calipay vs. NLRC, G.R. No. 166411, Aug. 3, 2011). Subcontracting for another company indicates abandonment (Agabon vs. NLRC, G.R. No. 158693, Nov. 17, 2004). An employee who failed to report for work after the expiration of the duly approved leave of absence is considered to have abandoned his job (Ramo vs. Elefano, G.R. No. L-55629, Jul. 3, 1981). An employee who failed to comply with the order for his reinstatement is deemed to have abandoned his work (East Asiatic vs. CIR, G.R. No. L-29068, Aug. 31, 1971). An employee who deliberately absented from work without leave or permission from his employer for the purpose of looking for a job elsewhere is deemed to have abandoned his work (Sandoval Shipyard vs. Clave, G.R. No. L-49875, Nov. 21, 1979).

2. Union security clause

Article 259 paragraph (e) provides for the union security clause wherein it provides that “… Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement…”

The union security clause is a stipulation in the Collective Bargaining Agreement (CBA) which allows the parties thereto to enter into an agreement requiring membership in the exclusive collective bargaining agent which successfully negotiated the said CBA as a condition for continued employment with the exception of employees who are already members of another union at the time of the signing of the CBA.

This means that members of the bargaining agent are not allowed to resign or terminate their membership therefrom. Otherwise, any member of the bargaining agent who opted to resign or is expelled therefrom may be recommended to the employer by the bargaining agent for the termination of his or her employment. However, employees who are members of other unions at the time of the signing of the CBA are not bound by the union security clause. They cannot also be compelled to resign from their respective union in order to join the bargaining agent. For new employees however, they can be compelled to join the bargaining agent and if they refuse, they can be recommended for termination.

Due process in case of dismissal based on the union security clause

Prior to terminating the and employee on the ground of violation of the union security clause, the following requisites should be complied with by the employer:

1. The union security clause is applicable;

2. The union is requesting for the enforcement of the union security provision in the CBA; and

3. There is sufficient evidence to support the union’s decision to expel the employee from the union.

The foregoing requisites constitutes a just cause for terminating an employee based on the CBA’s union security provision (Picop Resources, Inc. vs. Taneca, G.R. No. 160828, Aug. 9, 2010).

Some principles on dismissal based on violation of union security clause

Dismissal effected by the employer pursuant to a labor union’s demand in accordance with a union security agreement does not constitute an unfair labor practice (Malayang Samahan ng Manggagawa sa M. Greenfield vs. Ramos, G.R. No. 113907, Feb. 28, 2000). The employee sought to be terminated should be afforded an independent and separate hearing which means that the employer is not duty-bound to immediately implement the recommendation to terminate made by the union. It has to conduct its own hearing independent and separate from any hearing conducted by the union (Alabang Country Club, Inc. vs. NLRC, G.R. No. 170287, Feb. 14, 2008). Though the employer has the liability for reinstatement, full backwages, damages and attorney’s fees in illegal dismissal case based on the union security clause, the employer has the right to be reimbursed for payment of any claims arising out of dismissals made upon demand of the union under the union security clause (Del Monte Philippines, Inc. vs. Saldivar, G.R. No. 158620, Oct. 11, 2006).

3. Totality of infractions doctrine

Under this doctrine, the employee’s historical records of offenses, malfeasance or misfeasance, as a general rule, are relevant in the consideration of the gravity of his violations or transgressions. In the actual imposition by the employer of penalties on erring employees, due consideration must be given to their length of service and the number of violations they have committed during their employ (Agabon vs. NLRC, G.R. No. 158693, Nov. 17, 2004).

This doctrine dictates that the offenses committed by an employee should not be taken singly and separately but in their totality (Valiao vs. CA, G.R. No. 146621, Jul. 30, 2004).

Some principles on totality of infractions doctrine

Past violations may only be used as justification to dismiss an employee for subsequent similar or related offense. The previous infractions, in other words, may be used if they have a bearing to the proximate offense warranting dismissal (La Carlota Planters Association, Inc. vs. NLRC, G.R. No. 126689, Oct. 27, 1998). Past infractions for which the employee has already amply explained but without the employer taking any action thereon can no longer be cited as grounds to dismiss (Felix vs. NLRC, G.R. No. 148256, Nov. 17, 2004). Employer has to prove subsequent offense by substantial evidence (Coca-Cola Bottlers, Phils., Inc. vs. Daniel, G.R. No. 156893, Jun. 21, 2005).

References:

- Article 259 par. (e). Unfair Labor Practices of Employers, PD No. 422, as amended and renumbered per DOLE Department Advisory No. 1, Series of 2015.

- Article 297. Regular and Casual Employment, PD No. 422, as amended and renumbered per DOLE Department Advisory No. 1, Series of 2015.

- Department Order No. 147-15, Series of 2015, Amending the Implementing Rules and Regulations of Book VI of the Labor Code of the Philippines, as amended.

- Poquiz, Labor Relations Law, 2005.

- Supreme Court Decisions