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.

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Twin Requirements of Notice and Hearing

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Notice to Explain: Contents and Requirements

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.

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.

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.

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.

In Lakpue Drug Inc. v. Belga, willfulness is described as one that is “characterized by a wrongful and perverse mental attitude rendering the employee’s act inconsistent with proper subordination.

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.

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Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements

An employee was held to be validly dismissed for the loss and unauthorized sale of the company’s electric copper wire cable upon findings that he sold the same and shared the proceeds with his three co-employees. (See Asian Terminals, Inc., Petitioner, vs. Nepthally B. Sallao, G.R. No. 166211, July 14, 2008.)

Whenever an employee steals something from the company, the employer may institute at least two actions: An administrative case threatening dismissal from service and a criminal case.

If that is the course taken by the employer, an interesting question is whether conviction of an employee in a criminal case is required for the dismissal of the employee from service on the ground of theft.

The ruling in this case is no. As discussed, the proof required in administrative proceeding is different from that of the criminal one. The former requires only substantial evidence while the latter proof beyond reasonable doubt.

Therefore, the administrative case is independent of the criminal action. The erring employee may be acquitted but likewise dismissed due to substantial evidence proving the offense.

Hence, in the case where the city prosecutor dis- missed the complaint for theft due to insufficiency of evidence, the employee cannot claim that there was no valid cause for her termination on the ground of theft because there was no probable cause. The conclusion that there was a valid ground for dismissal was supported by substantial evidence consisting of affidavits of NBI’s witnesses and the company’s own investigative findings.

The employee’s acquittal in a criminal case, especially one that is grounded on the existence of reasonable doubt, will not preclude a determination in a labor case that he is guilty of acts inimical to the employer’s interests.

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Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements

Substantive due process refers to the ground for dis- missal. It is the justification, the reason or the “why” aspect. For example, under Article 297 of the Labor Code, as amended, an employee may be dismissed for theft, fraud or gross and habitual neglect of duty.

While in Article 298, an employee may be terminated due to closure of establishment, redundancy or retrenchment.

The just cause and authorized cause constitute the substantive due process aspect. The procedure pertains to the manner of executing the discipline. The law requires observance of procedural due process aspect as well. This is the “how” aspect where the notice requirement mentioned earlier belongs.

Why is there a need for due process?

Under Section 1, Article III of the 1987 Constitution, “no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”

These essential requirements of due process were laid down in the landmark case of Ang Tibay vs. Court of Industrial Relations, et al. In this case, The SC held that the fact, however, there are cardinal primary rights which must be respected even in proceedings of this character. Thus, to paraphrase the essence of its findings:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. The liberty and property of the citizen shall be protected by the rudimentary requirements of fair play.’

(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. The right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration.

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(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached.

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be ‘substantial. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence.

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. Only by confining the administrative tribunal to the

evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them.

(6) The tribunal therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision.