Such other causes must be analogous to any of the following:

1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
2. Gross and habitual neglect by the employee of his duties;
3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; and
4. 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;

For an employee to be validly dismissed for a cause analogous to those enumerated in Article 297, the cause must involve a voluntary and/or willful act or omission of the employee.

In the old case of Nadura vs. Benguet Consolidated the employer claims that asthma is an illness that is analogous to causes of dismissal in the then governing law RA 1787 which carries almost the same

enumeration as the current Article 297 of the Labor Code.

In denying the claim, the Supreme Court ruled that it is clear that, except the just cause mentioned in subparagraph 1(a) all the others expressly enumerated in the law are due to the voluntary and/or willful act of the employee. How Nadura’s illness could be considered as “analogous” to any one of them is beyond the Court’s understanding, there being no claim or pretense that the same was contracted through his own voluntary act.

There is no exact parameter that will determine that a particular act falls under analogous causes. However, one must be guided by jurisprudence like the following: (See citations from Atty. Elvin’s book Guide to Valid Dismissal of Employees 2^nd Edition)

1. Stealing of co-employee’s credit cards;
2. Theft committed by an employee against a per- son other than his employer, if proven by substantial evidence, is a cause analogous to serious misconduct
3. Violation of company rules and regulations;
4. Attitude problem of an employee who cannot get along with co-employees, if proven, may be cause for dismissal. It affects the work environment and peace of the company;
5. 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. In this case a male employee embraced and kissed a female co-worker causing pains in the foot and shoulder of the latter.
6. Incompetence or inefficiency;
7. Failure to make work quota; and
8. Obesity of a flight attendant. This constitutes his failure to meet the employer’s qualifying standards.

Under Department of Labor and Employment’s (DOLE) Department Order (DO) No. 147-15, for analogous cause to be 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.

Further, the DO states that no act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies.

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A worker who overextended his vacation leave cannot be said to have abandoned his job due to the failure of the employer to adduce proof of overt acts on the part of employee showing clearly and unequivocably his intention to abandon his work. However, it is one thing to say that private respondent did not abandon his work. It is quite another to say that he is likewise not guilty of AWOL. For going AWOL, the employee may be subjected to disciplinary action.

Most companies require their employees to file their leave form prior to the taking of vacation leaves.

While it is not generally possible for an employee to anticipate when he will be ill or have to attend to some family problem or emergency, and be able to give prior notice to his employer, he should give such notice when he will be absent for some other cause, such as when he will attend to some other business elsewhere, for such engagements can be properly scheduled by him so as not to interfere with his regular working hours and disrupt the operations of the company in his particular area of assignment. Without prior notice of the employee’s absence, the company is not afforded enough time to get a

temporary replacement for him.

In the following instances, the Supreme Court held that there is abandonment:

1. Failure of employee to work after the expiration of his authorized leave;190
2. Failure to comply with reinstatement order;
3. Deliberate absence without permission to look for work elsewhere;

At some point, the Supreme Court held that the dismissal of employees for abandonment is unjustified since their absence was due to their arrest and detention for seven months for the alleged violation of the Revised Penal Code.

However, an absence to evade arrest and to ward off the long arm of the law is not a valid justification. To do so would be to place an imprimatur on the attempt to derail the normal course of the administration of justice.

Sea based workers are governed by the maritime practice with respect to their conduct while engaged to perform a voyage. Thus, desertion is the common charge against a seaman who jumps ship.

Desertion, in maritime law is the act by which a seaman deserts and abandons a ship or vessel, in which he had engaged to perform a voyage, before the expiration of his time, and without leave. By desertion, in maritime law, is meant, not a mere unauthorized absence from the ship, without leave, but an unauthorized absence from the ship with an intention not to return to her service; or as it is often expressed, animo non revertendi, that is, with an intention to desert.

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“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 judgment.”

Misconduct involves the transgression of some established and definite rule of action, forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment.

The misconduct, to be serious within the meaning of the Labor Code must be of such 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.

In the case of Eden Llamas vs. Ocean Gateway Maritime and Management, Inc., the Court held that

deliberate misdeclaration of the accountant of the gross income of the company for the renewal of municipal license constitutes serious misconduct. In this case, the account- ant reasons that:

“I believe that I did something good for our office when our declaration of gross income submitted to City Hall for the renewal of our municipal license was lower than our actual gross income for which the office had paid a lower amount.”

However, the Court was not convinced and held further that for her act of understating the company’s profits or financial position was willful and not a mere error of judgment, committed as it was in order to “save” costs, which to her warped mind, was supposed to benefit her employer.

It was not merely a violation of company policy, but of the law itself, and put the company at risk of being made legally liable. Verily, it warrants her dismissal from employment as the company’s Accounting Manager, for as correctly ruled by the appellate court, an employer cannot be compelled to retain in its employ someone whose service is inimical to its interests.

Thus, for misconduct or improper behavior to be a just cause for dismissal, it envisages the concurrence of at least three requisites:

(1) It must be serious;

(2) Must relate to the performance of the employee’s duties; and

(3) Must show that the employee has become unfit

However serious such misconduct, it must, nevertheless, be in connection with the employee’s work to constitute just cause for his separation. The act complained of must be related to the performance of the employee’s duties such as would show him to be unfit to continue working for the employer.

In a case decided by the Supreme Court, the act of an employee of sending a scathing e-mail in support of his superior cannot be considered as serious misconduct since it is in itself not related to his duty.

The Court said: “It can hardly be characterized as serious misconduct as to merit the penalty of dismissal. There is no showing that the sending of such e-mail message had any bearing or relation on employee’s competence and proficiency in his job. To reiterate, in order to consider it a serious misconduct that would justify dismissal under the law, the act must have been done in relation to the performance of his duties as would show him to be unfit to continue working for his employer.”

In another case, the employee threw a stapler upon the plant manager and uttered abusive language. She was charged with serious misconduct, among others. The Court did not agree that the act constituted serious misconduct because her act has no relation to her work of being a nurse. Thus:

“The Supreme Court, in a litany of decisions on serious misconduct warranting dismissal of an employee, has ruled that for misconduct or improper behavior to be a just cause for dismissal (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. The act of private respondent in throwing a stapler and uttering abusive language upon the per- son of the plant manager may be considered, from a layman’s perspective, as a serious misconduct. How- ever, in order to consider it a serious misconduct that would justify dismissal under the law, it must have been done in relation to the performance of her duties as would show her to be unfit to continue working for her employer. The acts complained of, under the circumstances they were done, did not in any way pertain to her duties as a nurse. Her employment identification card discloses the nature of her employment as a nurse and no other. Also, the memorandum informing her that she was being preventively suspended pending investigation of her case was addressed to her as a nurse.”

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It presupposes that the employee has committed an offense against the company, person of the employer or his representative. It also covers gross and habitual neglect or omission of the employee to do his duty.

Just causes for dismissal are those found in Article 297 of the Labor Code which states that an employer may terminate an employment for any of the following causes:

1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
2. Gross and habitual neglect by the employee of his duties;
3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
4. 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

5. Other causes analogous to the foregoing.”

Read related topic: Constructive Dismissal Definition and Concept

But bear in mind that the said provision indicates only the grounds in general. Thus, it is better for the company to come up with specific offenses related to the enumeration in Article 297.

If the company desires, it may also work with its employees in crafting certain penalties for offenses in their personnel policies, Code of Conduct, or the CBA. Companies that have labor union most often stipulate on penalties to be imposed on certain offenses. However, it bears stressing that design and implementation of company rules and regulations are within management prerogatives.

For instance, a company provides in its Code of Conduct that playing of computer games during office hours is punishable by reprimand on the first offense. While installation of unauthorized software carries a penalty of dismissal.

Take note that the said offenses are not specifically mentioned in Article 297 but were included in the company rules and regulations (CRR) which the union duly recognize as well.

Further, companies may prohibit access to social networking sites like Facebook, Instagram, Twitter, or Pinterest, during work hours or totally ban them from the office environment. These should be clearly set out in the company rules and the employer should have proof or evidence that the employees know about them. These proofs may be in the form of receipt of the CRR indicating the employee’s print name and signature.

Nonetheless, provisions in the CRR may be valid as ones falling under “analogous causes” of Article 297.

In such case, Article 297 applies in suppletory character to the agreed terms by the parties provided the stipulation is not contrary to law, moral, good order or public policy. Besides, the law is deemed written in every contract or agreement. Employment contracts are tied with the employer’s power to impose discipline through its company rules and regulations.

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A common situation involving this ground is when a superior gives an order to a subordinate but the latter refuses to comply.

However, for insubordination to arise, the order given must be lawful. There is no duty to perform an illegal act even if the one demanding is a boss. Hence, a superior cannot charge his staff with insubordination if the task he wants done is illegal.

If the willful disobedience by an employee is committed against an unreasonable order or one not connected with his duties, such act cannot be a valid ground for dismissal.[1]

To be valid, the order mentioned here must be:

(1) Reasonable and lawful,

(2) Known to the employee, and

(3) Pertains to the duties which the employee has been engaged to discharge.[2]

What is reasonable depends on the circumstances.

The reasonableness and lawfulness of a rule, order or instruction depend on the circumstances availing in each case.  Reasonableness pertains to the kind or character of directives and commands and to the manner in which they are made.[3]

However, when the law requires that the order must be lawful and reasonable, it does not end there. The act of the employee disregarding such order must also be intentional.

Thus, in order for the ground of “willful disobedience” to be considered a just cause to terminate employment, the following requisites must concur:

(1) The employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and

(2) 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.[4]

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin In Lakpue Drug Inc. v. Belga,[5] willfulness was described as one that is “characterized by a wrongful and perverse mental attitude rendering the employee’s act inconsistent with proper subordination.[6]

While it is true that the employer may promulgate rules and regulations and enforce the same to the point of dismissal of violators, such prerogative is limited by the standards of good faith and consideration of the plight of worker and circumstances.

As held by the Court, it is true that an employer is given wide latitude of discretion in managing its own affairs. The broad discretion includes the implementation of company rules and regulations and the imposition of disciplinary measures on its employees. But the exercise of a management prerogative like this is not limitless, but hemmed in by good faith and a due consideration of the rights of the worker. In this light, the management prerogative will be upheld for as long as it is not wielded as an implement to circumvent the laws and oppress labor.[7]

It may dawn upon an employee who does not want to comply with an order to file a case questioning its validity thinking that his filing will give him an excuse not to follow such command.

The Supreme Court ruled that it would be dangerous doctrine indeed to allow employees to refuse to comply with rules and regulations, policies and procedures laid down by their employer by the simple expedient of formally challenging their reasonableness or the motives which inspired them, or filing a strike notice with the Department of Labor and Employment, or, what amounts to the same thing, to give the employees the power to suspend compliance with company rules or policies by requesting that they be first subject of collective bargaining. It would be well nigh impossible under these circumstances for any employer to maintain discipline in its establishment.[8]

An employer may issue show-cause memo to an erring employee and require him to answer within a specified period. But the worker may not submit his reply. Can that be considered as willful disobedience?

In one case, failure of an employee to answer memoranda of the employer was held clearly intentional. It showed the employee’s perverse attitude to defy the reasonable orders which undoubtedly pertain to his duties as an employee.[9]

[1] Mañebo vs. NLRC, G.R. No. 107721, January 10, 1994.

[2] Manila Broadcasting Company vs. NLRC, G.R. No. 121975, August 20, 1998 citing BLTC Co. v. Court of Appeals, 71 SCRA 471 (1976); Mañebo v. NLRC, 229 SCRA 240 (1994); Nuez v. NLRC, 239 SCRA 518 (1994); AHS/Philippines, Inc. v. Court of Appeals, 257 SCRA 319 (1996); Stolt-Nielsen Marine Services (Phils.), Inc. v. NLRC, 258 SCRA 643 (1996); Gregorio Isabelo vs. National Labor Relations Commission, G.R. Nos. 113366-68, July 24, 1997.

[3] Escobin vs. NLRC, G.R. No. 118159, April 15, 1998 citing Azucena, The Labor Code with Comments and Cases, Vol. II, 1993 rev. ed., p. 557.

[4] Micro Sales Operation Network v. NLRC, G.R. No. 155279, October 11, 2005, 472 SCRA 328, 335-336; R.B. Michael Press vs. Galit, G.R. No. 153510, February 13, 2008.

[5] G.R. No. 166379, October 20, 2005, 473 SCRA 617, 624.

[6] R.B. Michael Press vs. Galit, Ibid.

[7] Dongon vs. Rapid Movers and Forwarders Co., Inc., G.R. No. 163431, August 28, 2013.

[8] GTE Directories Corporation vs. Hon. Augusto s. Sanchez and GTE Directories Corporation Employees Union, G.R. No. 76219, May 27, 1991 citing Batangas Transportation Co. vs. Bagong Pagkakaisa of the Employees and Laborers of the Batangas Trans. Co., 7 Phil. 108, 112 (1949).

[9] Ace Promotion and Marketing Corp. vs. Ursabia, G.R. No. 171703, September 22, 2006.