Gross and Habitual Neglect of Duty as a Concept

Under paragraph (b) of Article 297, gross and habitual neglect of duties can be ground for dismissal of employees.

As a general rule, this ground for termination requires the concurrence of “gross” and “habitual.”

In short, for negligence to be a proper ground for termination, it must not only be gross but must be both “gross and habitual” in character to justify depriving an employee of his means of livelihood.

Simple negligence is not a ground for dismissal of an employee.

A single or an isolated act of negligence which is not “gross and habitual” in nature will not justify termination of services.

Gross negligence connotes want of care in the performance of one’s duties, while habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. The single or isolated act of negligence does not constitute a just cause for the dismissal of the employee.

“Gross negligence” means an absence of that diligence that an ordinarily prudent man would use in his own affairs. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.

“Habitual negligence” implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances.

Negligence cannot be presumed. Once it is alleged, it must be supported by facts or evidence. An employer cannot conclude without proof that an employee is negligent of his duties.

Allegation of negligence must be supported by substantial evidence. Bare claim that an employee is negligent without proof of any particular instance cannot be made as basis to dismiss an employee.

The issue of whether a party is negligent is a question of fact.

In a case where the employer charges an employee with habitual tardiness and absenteeism but the documents allegedly supporting the attendance violation were not signed and mere computer printouts, the Supreme Court ruled as follows:

“From the foregoing, there are serious doubts in the evidence on record as to the factual basis of the charges against petitioner. These doubts shall be resolved in her favor in line with the policy under the Labor Code to afford protection to labor and construe doubts in favor of labor. The consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. The employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause. [Dizon v. NLRC, 180 SCRA 52 (1989)]. Not having satisfied its burden of proof, we conclude that the employer dis- missed the petitioner without any just cause. Hence, the termination is illegal.”

How to determine whether an employee is negligent?

It is negligence characterized by want of even a slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as others persons may be affected.

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

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Procedural Due Process for Other Types of Employment

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