Serious Misconduct to be Ground for Employee Dismissal must be Serious in Character with Sample NTE

The pivotal question to answer in a claim of illegal dismissal is whether the employer’s acts amounted to serious misconduct, fraud or willful breach of trust and confidence, or were tantamount to a commission of a crime, which justified their dismissal from employment.

Article 297 of the Labor Code enumerates the just causes for termination. It provides:

ARTICLE 297. 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;

x x x

(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 representative; x x x

Misconduct is defined as “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 judgment.

For serious misconduct to justify dismissal under the law,

(a) it must be serious,

(b) must relate to the performance of the employee’s duties; and

(c) must show that the employee has become unfit to continue working for the employer.

In a case where the employees illegally sold in Tarlac excess broilers and crates and were involved in the anomalous transactions, the Supreme Court held that these acts constitute Serious Misconduct which would warrant the supreme penalty of dismissal. (JR Hauling Services vs. Solamo, G.R. No. 214294, September 30, 2020)

Below is a sample Notice to Explain (NTE) for serious misconduct involving theft of company property with preventive suspension.

To:             MAGNO N. AKAO       

                  Sales Representative

From:         HR

Date:          _____ September _____

Subject:     NOTICE TO EXPLAIN (NTE) WITH PREVENTIVE SUSPENSION

It appears in our records that the company had excess broilers and crates that you delivered to Tarlac on ____.

As a matter of procedure, any excess of the company products and property should be turned over accordingly within twenty-four (24) hours. However, no such turnover was made on your part.

In this regard, please explain in writing within five (5) calendar days from receipt of this notice why no disciplinary action should be taken against you for the above, the penalty of which may result in dismissal if the evidence warrants.

Likewise, you are placed on preventive suspension effective immediately considering that your acts constitute serious and imminent threat on the property of the company.

Failure on your part to submit your written explanation within the prescribed period shall be deemed as waiver of your right to due process.

For your strict compliance.

GALICHA K. AWATAN

HR Manager

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

Read more on procedural due process discussion by Atty. Elvin:

Read more on procedural due process by Atty. Villanueva:

Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements