Termination due to Serious Misconduct

Termination due to Serious Misconduct

 

Termination due to Serious Misconduct is when a person is dismissed from work due to a serious offense that impacts his work.

For Termination due to Serious Misconduct to be valid, it must have the following:

·         it must be serious;

·         it must relate to the performance of the employee’s duties; and

·      it must show that the employee has become unfit to continue working for the employer. (G.R. No. 207838; G.R. No. 190436)

Serious misconduct by the employee justifies the employer in terminating his or her employment.

To constitute a valid cause for the dismissal, the employee’s misconduct must be serious, i.e., of such grave and aggravated character and not merely trivial or unimportant. (G.R. No. 221493)

Furthermore, the misconduct must be the product of “wrongful intent” or of a “wrongful and perverse attitude,” and not when the same transgression results from simple negligence or “mere error in judgment.'” (G.R. No. 229013)

What is Serious Misconduct?

 

Misconduct is improper or wrong conduct.

It is a 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 judgment. (G.R. No. 194884; G.R. No. 162017; G.R. No. 163270; G.R. No. 194884; G.R. No. 147719)

In a valid Termination due to Serious Misconduct, the misconduct must be serious.

Repeated ordinary misconduct can become serious misconduct.

Additionally, a series of irregularities when put together may constitute serious misconduct. (G.R. No. 73735).

Furthermore, in order to differentiate gross misconduct from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rules, must be manifest in the former. (G.R. No. 229882)

One way to prove that there was clear intent to violate a rule is when an employee repeats an offense for which he has already been disciplined.

So, the misconduct must be of a grave and aggravated character and not merely trivial and unimportant.

When is an act of serious misconduct work related?

 

Termination due to serious misconduct must be work-related for it to be used as a ground for dismissal.

Let’s take a look at G.R. No. 209735.

In this case, a fistfight between Tequillo’s and co-employee Gayon happened because of Gayon’s suggestion to bring Tequillo’s complaint to management.

The court ruled that the fight was work-related not because of the location of the fight or the time of the fight, but because of the cause or the motive for the attack.

As such, the court ruled that the Termination due to Serious Misconduct was valid. 

When is an employee unfit to continue working with the employer in Serious Misconduct?

 

In G.R. No. 179293, the Court found that an employee’s actions partook of serious misconduct.

In this case, the Petitioner was an accounting manager.

She reported understated profits to City Hall because it “saved” costs.

However, this put the company at risk since it breaks the law.

The Court noted that an employer cannot be compelled to retain in its employ someone whose services are inimical to its interests; and so it upheld her termination.

The accounting manager was thus unfit to continue working for the employer.

Let’s go through another Termination due to a Serious Misconduct example.

In G.R. No. 163270, Tomada was sleeping on the job when a fire broke out in the area he was supposed to be monitoring.

The Court upheld the termination.

It stated, “No employer may rationally be expected to continue in employment a person whose lack of morals, respect and loyalty to his employer, regard for his employer’s rules, and appreciation of the dignity and responsibility of his office, has so plainly and completely been bared.”

What is the difference between Serious Misconduct vs Willful Disobedience?

 

The difference between Serious Misconduct and Willful Disobedience is that the former is serious misconduct related to work that shows the employee is unfit to continue working for the employer, while the later is willful disobedience to a reasonable order.

Willful disobedience has the following requisites:

·         the employee’s assailed conduct must have been willful or intentional, the willfulness being characterized by a “wrongful and perverse attitude”; and

·         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. (G.R. No. 227175)

The definitions show that the 2 are really quite different and should be considered separately.

Undoubtedly, it can get a little confusing and it is best to discuss it with a Labor Lawyer. 

Termination Due to Serious Misconduct Examples

 

I’ve listed the below Termination due to Serious Misconduct examples to provide real life examples of Dismissal cases.

·         Sexual Harrassment/Sex on company premises

In G.R. No. 194884, respondents engaged in sexual intercourse in an area where co-employees or other company personnel have ready and available access. The respondents likewise committed their act at a time when the employees were expected to be and had, in fact, been at their respective posts, and when they themselves were supposed to be, as all other employees had in fact been, working. They were terminated due to serious misconduct.

Another Serious Misconduct example deals with sexual harassment. In this case, Respondent repeatedly attempted to kiss a female co-worker while inebriated and eventually, touched her buttocks. The foregoing act constituted serious misconduct. (G.R. No. 242875)

·         Theft/Tampering of company property

In (G.R. No. 190436), a Meralco employee was terminated due to serious misconduct.

(T)ampering with electric meters or metering installations of the Company or the installation of any device, with the purpose of defrauding the Company” is classified as an act of dishonesty from Meralco employees, expressly prohibited under company rules.

It is reasonable that its commission is classified as a severe act of dishonesty, punishable by dismissal even on its first commission, given the nature and gravity of the offense.

The court stated that “we again consider the petitioner’s duties and powers as a Meralco employee. And we conclude that he committed a serious misconduct.”

A second serious misconduct example is in G.R. No. 171115.

In this case, employee Helen took company-owned packing tape because she was going to use it to move house.

She said, “Kumuha po ako ng isang packing tape na gagamitin ko sa paglilipat ng gamit ko sa bago kong lilipatang bahay.”

There is no gainsaying that theft committed by an employee constitutes a valid reason for his dismissal by the employer. We hold that Helen is guilty of serious misconduct in her act of taking the packing tape.

·         Defamation/Inflammatory language

In G.R. No. 165960, a subordinate committed libel against his superior by publicly stating that his superior had taken Php 200.

The court stated that it a fabrication with the sole purpose of retaliating against Sepulveda’s previous acts based on the evidence presented.

The court stated that this act was one of serious misconduct, which warrants the dismissal from employment.)

In another serious misconduct example, workers consciously and willfully published derogatory statements against the respondent. (G.R. No. 219059)

The court went on to say that “Obviously, [petitioners] have committed an act which, by no stretch of the imagination, is considered serious misconduct.”

The court upheld their termination.

A further Serious Misconduct example can be found in G.R. No. 164181

·         Drug use/Drunkenness

In G.R. No. 173151, employee Loberanes was caught with shabu in company premises. Furthermore, he did not give any evidence contradicting the claim that he was a drug user despite multiple opportunities.

The court upheld his termiation due to serious misconduct.

The court further stated “Article 282(a) of the Labor Code states that the employer may terminate an employment for serious misconduct. Drug use in the premises of the employer constitutes serious misconduct.”

A further serious misconduct example is in G.R. No. 169606, where an employee was dismissed for testing positive.

·         Physical assault

Another Serious Misconduct example in in the case of Tequillo.

Tequillo instigated a fight with another co-worker which was cause for Dismissal.

The Court said “Physical violence between and among employees may constitute serious misconduct regardless of whether such violence occurred during working hours and within company premises. The confrontation must be “rooted on workplace dynamics” or connected with the performance of the employees’ duties. (G.R. No. 209735)

·         Series of irregularities

Termination due to serious misconduct can arise when there are a series of irregularities.

In G.R. No. L-64296, security guard Angeles had several incidents.

He was untidy, he was lax in his duties, he was working while inebriated, and in addition he entertained outsiders at night.

 

The court stated “A series of irregularities when put together may constitute serious misconduct, which under Article 283 of the Labor Code, is a just cause for dismissal.” (G.R. No. L-64296) and upheld his termination.

What is the process for Termination Due to Serious Misconduct?

 

In Termination due to Serious Misconduct, the twin notice rule should be followed.

The twin notice rule is composed of the following:

1.    First written notice – contains the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period

 

2.    Hearing or conference – employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them

 

3.    Second notice – after determining that termination is justified, the second notice shall contain (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. (G.R. No. 212616; G.R. No. 201701; G.R. No. 166208) 

It is best to adhere to the correct process.

If a company adheres to the correct process, then the case is more defensible in court.

Furthermore, adhering to the correct process helps the company thoroughly investigate the incident which is very important.

What is the penalty for an invalid Illegal Dismissal?

 

The penalty for an Illegal Dismissal is Reinstatement or Separation Pay, Full back wages, Moral Damages, Exemplary Damages, Attorney’s Fees and a Penalty for non-compliance with procedural due process.

If the termination is an Illegal Dismissal, the award may be Reinstatement (or Separation Pay) and full back wages. (G.R. No. 145280)

Reinstatement is when an employee is restored to his former position.

If reinstatement is not possible – for example, the company closed down or the relationship is too strained – then Separation Pay may be given.

Separation pay is calculated as the monthly pay multiplied by the number of years of an employee’s service.

Backwages may also be given. Backwages cover the period running from his illegal dismissal up to his actual reinstatement. (G.R. No. 207983).

Backwages are what an employee would have been paid had he continued to be employed.

Backwages are inclusive of allowances, and other benefits or their monetary equivalent (G.R. No. 204060)

Aside from the above, Moral Damages, Exemplary Damages and  Attorney’s Fees can also be awarded – but only under specific circumstances.

The employee is entitled to moral damages when the employer acted a) in bad faith or fraud; b) in a manner oppressive to labor; or c) in a manner contrary to morals, good customs, or public policy. (G.R. No. 198656).

There is also a Penalty for non-compliance with the procedural due process which is the twin notice rule (G.R. No. 183399

How to file an illegal dismissal case?

 

The process of how to file an Illegal Dismissal case is below.

Remember that while it is easy to file a case, you are going to have to spend a lot of time and money to see it through – please consult with a Labor Lawyer first so that you know what to expect.

1.    A Complaint will be filed with the Regional Arbitration Branch of the DOLE that has jurisdiction.

2.    The Complaint will be raffled by the Executive Labor Arbiter and assigned to a Labor Arbiter.

3.    Labor Arbiter issues Summons which specify the date, time and place of mandatory conciliation and mediation conference in two settings

4.    Mandatory conciliation and mediation conference to see if the parties can agree to a Compromise Agreement.

a.    Non-appearance by the complaint is ground for dismissal without prejudice.

b.    Non-appearance by the respondent shall be considered a waiver of their right to file their respective position paper.

5.   If a Compromise Agreement cannot be reached, the Labor Arbiter shall the filing of the position paper and submission of evidence within 10 days from the termination of the mandatory conciliation and mediation conference. There may be a need for a clarificatory conference.

6.    The case is submitted for Decision when the period lapses or the position papers are submitted.

7.    The Decision by the Labor Arbiter becomes final and executory unless appealed to the Commission by any parties within ten (10) calendar days from receipt of such Decision.

8.    Appeal to the NLRC within 10 days from receipt of Prima facie evidence of abuse of discretion; if the decision was secured based on fraud or coercion, on questions of law; and on serious errors in the findings of facts.

9.    Appeal from the NLRC to the CA (Rule 65) within 60 days from notice based on grave abuse of discretion

 

10. Appeal from the CA to the SC (Rule 45) within 15 days from the Notice generally based on pure questions of law.

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