GROUNDS FOR TERMINATION

Gross and Habitual Neglect of Duty

Gross negligence is defined as “want of care in the performance of one’s duties”, while
habitual neglect is defined as “repeated failure to perform one’s duties for a period of time,
depending upon the circumstances.” (Valiao v. Court of Appeals, G.R. No. 146621, July 30,
2004)

Tardiness or absenteeism that is habitual constitutes gross and habitual neglect of duty
and is a just cause for termination. However, if absence is authorized or tardiness or absenteeism
is due to emergency, ailment, or fortuitous event, then such is justified.

Unsatisfactory or poor performance, inefficiency and incompetence if gross and habitual

is a just cause for termination.

The totality of infractions or the number of violations committed during the period of
employment shall be considered in determining the penalty to be imposed upon an erring
employee. Fitness for continued employment cannot be compartmentalized into tight little
cubicles of aspects of character, conduct, and ability separate and independent of each other.
(J.G. Chan, Bar Reviewer on Labor Law, 2019)

Tardiness and Absenteeism

In Mansion Printing Center v. Bitara, Jr. G.R. No. 168120, January 25, 2012, the
dismissed employee, in the first quarter of the year 2000, was late 19 times out of the 47 times he
reported to work. The employee also incurred 19 absences out of the 66 working days during the
first quarter. The absences were without prior notice and approval. All in all, the absences and
tardiness were not isolated incidents but manifested a pattern of habituality.

In Ricardo G. Sy v. Neat, Inc., G.R. No. 213748, November 27, 2017, the dismissed
employee was late 34 times in a span of 4 months. The time card of the employee shows that in
2011 alone he was late 14 times in January, seven (7) times in February, eight (8) times in
March, and five (5) times in April.

The Supreme Court held that habitual tardiness alone is a just cause for termination of
employment. Punctuality is a reasonable standard imposed on every employee, whether in
government or private sector, whereas habitual tardiness is a serious offense that may very well
constitute gross or habitual neglect of duty, a just cause to dismiss a regular employee. Habitual
tardiness manifests lack of initiative, diligence and discipline that are inimical to the employer's
general productivity and business interest.

In Japos v. First Agrarian Reform Multi-Purpose Cooperative G.R. No. 208000,

July 26, 2017, the employee was dismissed for habitual absenteeism. The Company policy
provided that if an employee incurs 6 or more absences without permission within 1 employment
year, the employee could be validly dismissed.
 In the year 2005, and prior to his dismissal, the employee already incurred three (3)
unauthorized absences where he was served with three (3) written warnings with a warning that
should he incur further unauthorized absences, the same would be dealt with seriously.

Nonetheless, despite said warning, he was again absent for more than six (6) consecutive
days from June 22, 2005 until he reported back to work on July 5, 2005 allegedly for being sick
with influenza without any medical certificate to substantiate the same. It was only on July 7,
2005 when he submitted a medical certificate dated on even date certifying that he was examined
and found to have acute respiratory tract infection. The employee claimed that the medical
certificate shows that his absence from June 22, 2005 onwards was justified.

The Supreme Court held that the certificate does not indicate the period during which
petitioner was taken ill. It does not show when he consulted with and was diagnosed by Dr. Cruz.
And it does not specify when and how petitioner underwent treatment, and for how long.
Without these relevant pieces of information, it cannot be reliably concluded that indeed,
petitioner was taken ill on June 22-28, 2005.

The employees’ repeated acts of absences without leave and his frequent tardiness reflect
his indifferent attitude to and lack of motivation in his work. More importantly, his repeated and
habitual infractions, committed despite several warnings, constitute gross misconduct
unexpected from an employee of petitioner's stature. This Court has held that habitual
absenteeism without leave constitute gross negligence and is sufficient to justify termination of
an employee.

Inefficiency, incompetence, and unsatisfactory or poor performance

In Buiser v. Leogardo, Jr., 216 Phil. 144 (1984), the Court explained that inefficiency is
understood to mean failure to attain work goals or work quotas, either by failing to complete the
same within the allotted reasonable period, or by producing unsatisfactory results. Further, in
San Miguel Corp. v. NLRC, 574 Phil. 556 (2008), the Court held that an employer is entitled to
prescribe reasonable work standards, rules, and regulations necessary for the conduct of its
business, to provide certain disciplinary measures in order to implement them, and to assure that
the same would be complied with.

In Telephilippines, Inc. v. Jacolbe , G.R. No. 233999, February 18, 2019, the
employee was required to meet the key performance metric targets of the company which
included an average handle time (AHT) of 7 minutes or below. For 62 consecutive weeks, the
employee did not meet the AHT goal and was dismissed. The Supreme Court upheld the
dismissal, and stated that gross inefficiency is analogous to gross and habitual neglect of duty.
Undoubtedly, the employee’s repeated and consistent failure to meet the prescribed AHT mark
over a prolonged period of time falls squarely under the concept of gross inefficiency.
Serious Misconduct

Misconduct is generally defined as "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." In labor cases, misconduct, as a ground for dismissal, must be
serious—that is, it must be of such grave and aggravated character and not merely trivial or
unimportant. In addition, the act constituting misconduct must be connected with the duties of
the employee and performed with wrongful intent.

Requisites for Serious Misconduct:

1. the misconduct must be serious;
2. it must relate to the performance of the employee's duties, showing that the
employee has become unfit to continue working for the employer; and
3. it must have been performed with wrongful intent.

Utterance of obscene, insulting, or offensive words against a Superior

In a number of cases, the Court has consistently ruled that the utterance of obscene,
insulting or offensive words against a superior is not only destructive of the morale of co-
employees and a violation of the company rules and regulations, but also constitutes gross
misconduct.

In Autobus Workers’ Union vs. NLRC, G. R. No. 117453, June 26, 1998, the act of
the employee in calling his supervisor “gago ka” and taunting the latter by saying “bakit anong
gusto mo, ‘tang ina mo” was held sufficient ground to dismiss the former.

In Sterling Paper Products Enterprises, Inc. v. KMM-Katipunan, G.R. No. 221493,

August 2, 2017, the dismissed employee stated to his co-employees “Huwag maingay, puro
bawal” and “Pura kayo bawal, bakit bawal ba magpahinga?” in a loud and disrespectful tone,
after their supervisor called their attention and prohibited them from taking a nap on the sheeter
machines for safety reasons.

In Asian Design and Manufacturing Corporation v. Deputy Minister of Labor, G.R.

No. 70552 May 23, 1986, the dismissed employee made false and malicious statements against
the foreman (his superior) by telling his co-employees: "If you don't give a goat to the foreman,
you will be terminated. If you want to remain in this company, you have to give a goat." The
dismissed employee therein likewise posted a notice in the comfort room of the company
premises, which read: "Notice to all Sander - Those who want to remain in this company, you
must give anything to your foreman."

Reynolds Philippines Corporation v. Eslava, G.R. No. L-48814 June 27, 1985, the
dismissed employee circulated several letters to the members of the company's board of directors
calling the executive vice-president and general manager a "big fool," "anti-Filipino" and
accusing him of "mismanagement, inefficiency, lack of planning and foresight, petty favoritism,
dictatorial policies, one-man rule, contemptuous attitude to labor, anti-Filipino utterances and
activities."
In Solid Development Corporation Workers Association v. Solid Development
Corporation, G.R. No. 165995, April 14, 2007, the owner and president of the company caught
the employee loafing during office hours. When he called the employee’s attention, the latter
retorted, “Bakit moa ko sinisita porke mahirap lang kaming mga trabahador ninyo eh. Kayo
talagang mga instek.” The employee’s supervisor overheard this remark and reminded him to
respect the owner and president of the company. However, the employee replied, “Ikaw,
masyado kang sipsip sa baboy na instik.” Later, in a meeting, the employee again approached the
owner and president of the company and told him, “Bakit ako pa ang nasilip mo! Nagtratrabaho
naman ako ah! Kayo talagang mga instik! Letseng buhay ito!” In declaring the employee’s
dismissal valid, the Supreme Court said that the employee’s act of insulting the company’s
owner and president constitutes serious misconduct. Moreover, it was done in relation to the
performance of his duties which showed him to be unfit to continue working for the company.

Utterance of obscene, insulting, or offensive words against a co-worker

In Bondoc vs. NLRC, G. R. No. 103209, July 28, 1997, utterances on different
occasions towards a co-employee of the following: -”Di bale bilang na naman ang araw mo.” –
“Sige lang, patawa tawa ka pa, eh bilang na bilang na ang araw mo.” – “Matakot ka sa Diyos,
bilang na ang araw mo; Mag-ingat ka sa paglabas mo sa Silahis Hotel. - Unggoy xxx ulol” were
held unquestionably as partaking the form of grave threat or coercion which justified the
dismissal of the offender.

In De La Cruz v. National Labor Relations Commission, G.R. No. 82703 September

15, 1989, the dismissed employee shouted, "Sayang ang pagka-professional mo!" and "Putang
ina mo" at the company physician when the latter refused to give him a referral slip.

In Cebu People’s Multi-Purpose Cooperative v. Carbonilla, Jr. , G.R. No. 212070,

Jan 27, 2016, the employee was terminated for frequently exhibiting disrespectful and
belligerent behavior towards his colleagues and superiors. He even used his stature as a law
graduate to insist that he is “above” them, often using misguided legalese to weasel his way out
of the charges against him, as well as to strong-arm his colleagues and superiors into succumbing
to his arrogance.

The Supreme Court held that his defiance breeds of antagonism in the work environment.
Management has the rightful prerogative to take away dissidents and undesirables from the
workplace. It should not be forced to deal with difficult personnel, especially one who occupies a
position of trust and confidence, else it be compelled to act against the best interest of its
business. The employee’s conduct is also clearly work-related as all were incidents which sprung
from the performance of his duties. Lastly, the misconduct was performed with wrongful intent
as no justifiable reason was presented to excuse the same.

Carbonilla, Jr. comes off as a smart aleck who would even go to the extent of dangling
whatever knowledge he had of the law against his employer in a combative manner. As
succinctly put by CPMPC, ""every time Carbonilla, Jr.'s attention was called for some
inappropriate actions, he would always show his Book, Philippine Law Dictionary and would
ask the CEO or HRD Manager under what provision of the law he would be liable for the
complained action or omission."" Irrefragably, CPMPC is justified in no longer tolerating the
grossly discourteous attitude of Carbonilla, Jr. as it constitutes conduct unbecoming of his
managerial position and a serious breach of order and discipline in the workplace"
Analogous Causes (Attitude Problem – unprofessional behavior and rumor
mongering/gossiping)

Article 282 (e) of the Labor Code talks of other analogous causes or those which are
susceptible of comparison to another in general or in specific detail. For an employee to be
validly dismissed for a cause analogous to those enumerated in Article 282, the cause must
involve a voluntary and/or willful act or omission of the employee. (John Hancock Life
Insurance Corporation v. Davis, G.R. No. 169549, September 3, 2008)

Although "attitude problem" is not one of those specifically enumerated under the Labor
Code as one of the grounds for the valid dismissal of an employee, the Supreme Court has
considered as included in the term "analogous causes" because, if such behavior already
adversely affects the working environment, the employer is justified in believing that it is a
serious misconduct.

Attitude Problem (unprofessional behavior)

In the case of Heavylift Manila et al., vs. Court of Appeals, et al., G.R. No. 154410,
October 20, 2005, the Supreme Court ruled that, an employee who cannot get along with his co-
employees is detrimental to the company for he can upset and strain the working environment.
Without the necessary teamwork and synergy, the organization cannot function well. Thus,
management has the prerogative to take the necessary action to correct the situation and protect
its organization. When personal differences between employees and management affect the work
environment, the peace of the company is affected. Further, the highest court of the land
concluded that an employee’s attitude problem is a valid ground for his termination. In so
concluding, the Supreme Court cited the case of Navarro III v. Damasco, G.R. No. 101875, 14
July 1995, where it described the harassment of an employee by a co-employee within the
company premises even after office hours is a work-related matter considering that the peace of
the company is thereby affected.

Since the burden to prove an employee’s attitude problem rests on the employer,
allegations of attitude problem must be supported by substantial evidence, which is defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Affidavits may be sufficient to establish substantial evidence, and affidavits executed by various
co-employees constitute substantial evidence. (JR Hauling Services vs Solamo, et al., GR
214294, 30 September 2020)

Unsubstantiated suspicions, accusations and conclusions of employers do not provide for

legal justification for dismissing an employee. (Century Canning Corporation vs Ramil, GR
171630, 8 August 2010) Thus, verbal negative feedback from workmates concerning their co-
workers’ attitude problem is not enough.
 In Sy vs Neat Inc., GR 213748, 27 November 2017, the Supreme Court ruled that reports
or sworn statements narrating the instances when the subject employee displayed attitude
problems at work, as well as previous performance appraisal indicating unsatisfactory evaluation
of work, may be presented as evidence to support a finding or conclusion that said employee has
attitude problems which may justify his/her dismissal from service.

However, in situations involving a worker’s attitude problem, the penalty of dismissal

from service need not be the automatic or immediate punishment to be imposed upon the
employee concerned. Depending on the nature, gravity and repercussion of the worker’s negative
behavior, and such other relevant considerations, the employer may consider penalties such as
verbal warning, written warning, reprimand, and suspension. Note also that if attitude problem is
among the offenses under an existing company policy or employees’ handbook, the
corresponding stated penalty (which may not necessarily be dismissal from service) should be
imposed.

In Sy vs Neat Inc., GR 213748, 27 November 2017, the employee, not wanting to be

partnered with another employee, decided to assign to himself a new delivery utility.

Attitude Problem (Gossiping and Rumor Mongering/Bullying and Harassment)

No specific Philippine case wherein gossiping lead to termination. However, it can fall
under “Attitude Problem” or analogous to serious misconduct, if the gossiping is serious; relates
to the performance of the employee’s duties showing that the employee has become unfit to
continue working for the employer; and performed with wrongful intent. Gossiping can also
constitute bullying and/or harassment.

Of note is that the Philippines recently adopted the International Labor Organization
(ILO) Convention against Violence and Harassment. The term “violence and harassment” in
the world of work, as defined by the Convention, refers to a range of unacceptable behaviors and
practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are
likely to result in physical, psychological, sexual or economic harm, and includes gender-based
violence and harassment. And pending before the House Committee is the Anti-Office Bullying
Act which seeks to generate policies inhibiting employees and employers in government and
non-government offices from performing acts that would cause lasting damages to their peers
and co-workers. This will mandate all offices to adopt a policy on anti-bullying in workplace and
to promote workplaces that are free from any form of discrimination, judgment, free from any
influence of one’s race, ethnicity, religion, sexual orientation, gender identity, social status, or
age.

Gossip has been defined as the “Casual or unconstrained conversation or reports about
other people, typically involving details which are not confirmed as true.” In line with the
workplace, the office gossip is often stories about other employees that may or may not be true
but often sensationalized to perpetuate or maintain the interest of those who are hearing it.
 When used to undermine another person, office gossips could drag down the morale of
the targeted employee to the point that he or she loses interest to work or even show up at the
office. Gossip also has the ability to make officemates take sides, dividing the group into
factions. Thus, the rumor mongering affects the work environment and the employee involved
can be considered to have an “Attitude Problem”.

In general, some negative consequences of workplace gossip are:

1. Erosion of trust and morale.

2. Lost productivity and wasted time.
3. Increased anxiety among employees as rumors circulate without clear information as
to what is and isn’t fact.
4. Divisiveness among employees as people take sides.
5. Hurt feelings and reputations.
6. Attrition due to good employees leaving the company because of an unhealthy work
environment.”1

In extreme circumstances, office gossips can even lead to legal lawsuits for defamation,
invasion of privacy, and even harassment. When taken to that level, the reputation of the
company’s management, along with the company itself, will surely be questioned2.

Employers are required to provide a safe workplace for employees and that includes
protection from harassment and bullying 3. That means someone who is a harasser must be dealt
with, and that could include discipline, separation from the subject of the gossip, or even removal
from the workplace. Depending on the severity of the gossip and its effect, it could serve as just
cause for dismissal.

1
Workplace Gossip: What Crosses the Line? (shrm.org)
2
3 Types of Office Bullying in the Philippines and How to Stop Them - JustPayroll
3
Labor Law in Manila Philippines | YKC Law