Article 297 of the Labor Code considers any of the following acts or omission on the part of the employee as just cause or ground for terminating employment:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(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 representatives; and

(e) Other causes analogous to the foregoing.

In Lim vs. National Labor Relations Commission, the Supreme Court (SC) considered inefficiency as an analogous just cause for termination of employment under Article 297 of the Labor Code. The SC held that gross inefficiency falls within the purview of other causes analogous to the foregoing, this constitutes, therefore, just cause to terminate an employee under Article 297 of the Labor Code.

One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter. Gross inefficiency is closely related to “gross neglect, for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business.

In Buiser vs. Leogardo, this SC ruled that failure to observe prescribed standards to inefficiency may constitute just cause for dismissal. Also, in Leonardo vs. National Labor Relations Commission the SC held that an employer is entitled to impose productivity standards for its workers, and in fact, non-compliance may be visited with a penalty even more severe than demotion.

The practice of a company in laying off workers because they failed to make the work quota has been recognized in this jurisdiction. (Philippine American Embroideries vs. Embroidery and Garment Workers, 26 SCRA 634, 639). Employees’ failure to meet the sales quota assigned to each of them constitute a just cause of their dismissal, regardless of the permanent or probationary status of their employment.

Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such 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.

This management prerogative of requiring standards may be availed of so long as they are exercised in good faith for the advancement of the employer’s interest.

In fine, an employee’s failure to meet sales or work quotas falls under the concept of gross inefficiency, which in turn is analogous to gross neglect of duty that is a just cause for dismissal under Article 297 of the Code.

However, in order for the quota imposed to be considered a valid productivity standard and thereby validate a dismissal, management’s prerogative of fixing the quota must be exercised in good faith for the advancement of its interest.

The duty to prove good faith, however, rests with employer as part of its burden to show that the dismissal was for a just cause. The company must show that such quota was imposed in good faith.

Employers must be reminded that while probationary employees do not enjoy permanent status, they enjoy the constitutional protection of security of tenure. They can only be terminated for cause or when they otherwise fail to meet the reasonable standards made known to them by the employer at the time of their engagement.

Where the employer miserably failed to prove the termination of employee was for a just cause nor was there substantial evidence to demonstrate the standards were made known to the latter at the time of his engagement, the employee’s right to security of tenure was breached.

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Where the fact of employee’s dismissal from service is undisputed by the parties, the crux of the issue therefore lies on whether the supposed transgressions of employee are supported by substantial evidence, and whether they are considered just causes for their dismissal.

In the case of JR Hauling Services vs. Solamo, (G.R. No. 214294, September 30, 2020), the Supreme Court held that it is a well-established rule that the party-litigant who alleges the existence of a fact or thing necessary to establish his/her claim has the burden of proving the same by the amount of evidence required by law, which, in labor proceedings, is substantial evidence, or “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

In the hierarchy of evidentiary values, proof beyond reasonable doubt is placed at the highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial evidence, in that order.

Thus, in the hierarchy of evidence, it is the least demanding. Corollarily, the ground for the dismissal of an employee does not require proof beyond reasonable doubt.

The quantum of proof required is merely substantial evidence – which only entails evidence to support a conclusion, “even if other minds, equally reasonable, might conceivably opine otherwise.” Accordingly, requiring a quantum of proof that is over and above substantial evidence is contrary to law.

Citing the case of Manila Electric Company vs. National Labor Relations Commission, the SC held further that the ground for an employer’s dismissal of an employee need be established only by substantial evidence, it not being required that the former’s evidence be of such degree as is required in criminal cases, i.e., proof beyond reasonable doubt.

It is absolutely of no consequence that the misconduct with which an employee may be charged also constitutes a criminal offense: theft, embezzlement, assault on another employee or company officer, arson, malicious mischief, etc.

The proceedings being administrative, the quantum of proof is governed by the substantial evidence rule and not, as the NLRC seems to imagine, by the rule governing judgments in criminal actions.

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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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Hence, it does not seem to be in accord with the decision of the management to charge an employee for loss of trust and confidence after he was being promoted.

The promotion of an employee who was dismissed for loss of trust and confidence contradicts the claim of the company that the employee deserves to be terminated. This self-contradictory position of the employer negates its claim of loss of confidence in its employee. (See the case of Easycall Communications Phils., Inc. vs. King, G.R. No. 145901, December 15, 2005.)

Further, an employee who was promoted several times and was given bonuses for his collection efforts and a compensation adjustment for his excellent performance cannot be validly dismissed on the ground of loss of trust and confidence. Such promotion, bonuses and compensation negate the allegations of inefficiency and loss of trust and confidence.

Loss of confidence has no basis if the fact shows that:

1. The employee was the recipient of numerous awards, commendations and promotions from the

   

   employer which he had served for two (2) decades; and

2. In his entire service to the company, he was never implicated in any irregularity or anomaly.

But in another case, the employee’s claim of having served the company for 16 years backfired because the long years of service reflected a regrettable lack of loyalty on the part of the employee. Loyalty should have been strengthened instead of betrayed.

If an employee’s length of service is to be regarded as a justification for moderating the penalty of dismissal, it will actually become a prize for disloyalty, perverting the meaning of social justice and undermining the efforts of labor to cleanse its ranks of all undesirables.

Unlike other just causes for dismissal, trust in an employee, once lost is difficult, if not impossible, to regain. (Salvador vs. Philippine Mining Service Corporation, G.R. 148766, January 22, 2003.)

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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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The misconduct referred to must be serious in nature. The Supreme Court defines misconduct as follows:

“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 Mari-time 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 accountant reasons that:

“I believe that I did something good for our of-fice 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 services 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 to continue working for the employer.

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

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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 person of the plant manager may be considered, from a layman’s perspective, as a serious misconduct.

However, in order to consider it a serious misconduct that would justify dismissal un-der 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.”

In the case of Molato vs. National Labor Relations Commission, the reliance of the employer upon the affidavits of its witnesses stating in general the alleged misconduct committed by the dismissed employee was held not proper. The Court held that the affiants failed to cite particular acts or circumstances when employees were disrespectful to their employer. Affiants merely alleged that employees would raise their voices and utter unpleasant remarks at their employer during their meetings without however pointing in detail when, where and how the incidents transpired.

The same is true with the affidavit of another employee who merely stated that he witnessed the arrogance, misconduct, grossly abusive language, serious disrespect and uncalled-for remarks of employees towards their employer.

For misconduct or improper behavior to be a just cause for dismissal the same must be related to the performance of the employee’s duties and must show that he has become unfit to continue working for the employer. The affidavits of company’s witnesses are insufficient to warrant such findings.