419.

Serious Misconduct (Definition and Acts)

RENE P. VALIAO, petitioner
Vs.
COURT OF APPEALS, Respondent

Facts: Rene P. Valiao is an employee of respondent West Negros College (WNC)
and was placed under preventive suspension following the investigation of his
unexplained tardiness and absenteeism, aggravated by his arrest for violation of the
Dangerous Drugs Act of 1972. He was subsequently terminated from the service for
serious misconduct and gross and habitual neglect of duty. Petitioner filed a
complaint for illegal dismissal and damages. The Labor Arbiter ordered WNC to pay
the petitioner his salary for the period of his preventive suspension as there was no
justifiable reason to place him under preventive suspension. However, the Labor
Arbiter found the dismissal of the petitioner from WNC to be valid due to absenteeism
and habitual tardiness. On appeal to the NLRC, the latter affirmed the decision of the
LA. Petitioner filed a petition before the Court of Appeals, but the same was
dismissed. Petitioners motion for reconsideration was denied. Hence, this petition.

ISSUE: WON the dismissal of herein petitioner Valiao is illegal?

HELD: No. The Supreme Court ruled that the Labor Arbiters findings that
petitioners habitual absenteeism and tardiness constitute gross and habitual neglect
of duties that justified his termination of employment were sufficiently supported by
evidence on record. Petitioners repeated acts of absences without leave and his
frequent tardiness reflect his indifferent attitude and lack of motivation in his work. His
repeated and habitual infractions, committed despite several warnings, constitute
gross misconduct unexpected from an employee for petitioners stature. Habitual
absenteeism without leave constitute gross negligence and is sufficient to justify
termination of an employee.







420. Serious Misconduct (Definition and Acts)

VILLAMOR GOLF CLUB, Petitioner
Vs.
RODOLFO F. PEHID, respondent

Facts: On September 20, 1975, Rodolfo F. Pehid was employed by the Villamor Golf
Club (VGC) as an attendant in the mens locker room, and, thereafter, he became the
Supervisor-in-Charge. His subordinates included Juanito Superal, Jr., Patricio Parilla,
Ricardo Mendoza, Cesar Velasquez, Vicente Casabon, Pepito Buenaventura and
Carlito Modelo.
On May 1, 1998, the afore-mentioned employees agreed to establish a
common fund from the tips they received from the customers, guests and members
of the club for their mutual needs and benefits. Each member was to contribute the
amount of P100.00 daily. By October 31, 1998, the contributions of the employees
had reached the aggregate amount of P17, 990.00 based on the logbook maintained
on the locker room. This agreement, however, was not known to the VGC
management.
An audit of the Locker Room section of the golf club was conducted and
found out that there was an undeclared and unrecorded aggregate amount of P17,
900.00 for the fund during the period of May 1998 to October 1998. It was further
recommended in the said report that an investigation be conducted to determine the
whereabouts of said amount and who was accountable therefor.
After the formal investigation, Pehid received Office Order No. 11-99 from the
General Manager of the club informing him that his employment was terminated
effective July 1, 1999 for gross misconduct in the performance of his duties in
violation of Paragraph IV-E(d) of the VGC Rules and Regulations. He was also
informed that he committed acts of dishonesty which caused and tend to cause
prejudice to the club for misappropriating the common fund of P17, 900 for his
personal benefit.

ISSUE: WON the termination of employment of Pehid is illegal?

HELD: Yes. Under the afore- quoted VGC rule, the dishonesty of an employee to be
a valid cause for dismissal must relate to or involve the misappropriation or
malversation of the club funds or cause or tend to cause prejudice to the VGC. The
substantial evidence on record indicates that the P17, 900.00 which was
accumulated from a portion of the tips given by the golfers from May 1998 to October
1998 and was allegedly misappropriated by the respondent as the purported
custodian thereof, did not belong to the VGC but to the forced savings of its locker
personnel. Hence, the claim of VGC that its interest was prejudiced was no factual
basis.

Clearly, based on the grounds of termination provided under Article 282 of
the Labor Code and the VGC rules and regulations, the common denominator
thereof to constitute misconduct as a ground for valid termination of the employee, is
that it is committed in the connection with latters work or employment. In the instant
case, the alleged petitioners misappropriation or malversation was committed,
against the common fund of the Locker Room personnel which did not belong nor
sanctioned by respondent VGC. A fortiori, respondent VGC was not prejudiced or
damaged by the loss or misappropriation thereof. Undoubtedly, the parties who were
prejudiced or damaged by the alleged embezzlement, were locker room personnel,
who may ventilate any proper civil or criminal action to whomsoever responsible
therefor. Applying the principle in statutory construction of ejusdem generis, i.e.,
where general words follow an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same
kind or class as those specifically mentioned (United Residents of Dominican Hill,
Inc. vs. Commission on Settlement of Land Problems, 352 SCRA 782). Elementary
is the rule that when laws or rules are clear, it is incumbent upon the judge to apply
them regardless of personal belief or predilections - when the law is unambiguous
and unequivocal, application not interpretation thereof is imperative (De Guzman vs.
Sison, 355 SCRA 69).
Serious misconduct as a valid cause for the dismissal of an employee is defined as
improper or wrong conduct; 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. To be serious within the meaning and intendment of the law, the
misconduct must be of such grave and aggravated character and not merely trivial or
unimportant. However serious such misconduct, it must, nevertheless, be in connection with
the employees work to constitute just cause for his separation. The act complained of must be
related to the performance of the employees duties such as would show him to be unfit to
continue working for the employer.
421
Lakpue Drug v. Belga
G.R. No. 166379 473 SCRA 617 October 20, 2005
Serious Misconduct

Facts: In 1995, Petitioner Tropical Biological Phils., Inc. (Tropical, a subsidiary of
Lakpue Group of Companies, hired respondent Ma. Lourdes Belga (Belga) as
bookkeeper and later promoted as Assistant Cashier.

In 2001, Belga brought her daughter to the Philippine General Hospital (PGH) for
treatment of bronchopneumonia. On her way to the hospital, she dropped by the
house of Ms. Vegafria, Technical Manager of Tropical and handed documents
worked on and gave notice of her emergency leave.

While in the hospital, Belga, who is pregnant experienced labor pains and gave birth
on the same day. Two days after giving birth, the company summoned her to report
for work but failed to comply. A follow up memorandum was given to her informing of
the scheduled clarificatory conference. When the respondent attended the
conference, she was terminated and dismissed that day.

Belga thus filed a complaint with the Public Assistance and Complaint Unit (PACU) of
the Department of Labor and Employment (DOLE). Attempts to settle the case
failed, hence the parties brought the case before the NLRC-NCR.

Tropical alleged that the work of Belga was not merely clerical; concealed her
pregnancy from the company; did not apply for leave and her absence disrupted
Tropicals financial transactions.

The petitioner terminated her employment on the grounds of: (1) Absence without
official leave for 16 days; (2) Dishonesty, for deliberately concealing her pregnancy;
and (3) Insubordination, for her deliberate refusal to heed and comply with
companys memoranda.

The LA ruled in favour Belga and found that she was illegally dismissed.

Tropical appealed to the NLRC, which reversed and set aside the findings of the LA.

Issue: Whether the respondent was illegally dismissed by the petitioner on the
ground of serious misconduct.

Ruling: We have defined misconduct as a transgression of some established and
definite rule of action, a forbidden act, a dereliction of duty, wilful in character, and
implies wrongful intent and not mere error in judgment. The misconduct to be serious
must be of such grave and aggravated character and not mere error in judgment.
The misconduct to be serious must be of such grave and aggravated character and
not merely trivial and unimportant. Such misconduct, however serious, must,
nevertheless, be in connection with the employees work to constitute just cause for
his separation.

Belgas failure to formally inform Tropical of her pregnancy can not be considered as
grave misconduct directly connected to her work as to constitute just cause for her
separation. Thus, Belga is entitled to be reinstated to her former or equivalent
position and to the payment of full backwages.

The instant petition is Denied.


422
Coca-Cola Bottlers, Phils., Inc. v. Kapisanan ng Malayang Manggagawa sa Coca-
Cola-FFW
452 SCRA 480
Serious Misconduct/Dishonesty

Facts: The Petitioner Coca-Cola Bottlers Phil., Inc. is a domestic corporation
engaged in the manufacture, sale and distribution of softdrinks, with plants in
Southern parts of the country.

In 1982, the petitioner hired Florentino Ramirez as driver-helper. He became a
member of the respondent Kapisanan ng Malayang Manggagawa Sales Force
Union, the bargaining representative of the rank-and-file employees.

In 1996, he was the shop steward of the union at the companys Batangas Sales
Office. This time the route of the salesman was unavailable, thus temporarily
substituted by Ramirez for routes M11, AMC and LPR. Thereafter, the OIC of
Batangas Sales Office informed the OIC of DDS-District 44, that a review of the
copies of invoices related to the transactions of the respondent revealed
discrepancies as to the number of cases, empty bottles, and the amounts in selected
Sales Invoices.

Ramirez and the Union filed a Complaint for unfair labor practice and illegal dismissal
against the company for the alleged shortage in the bodega and violations in his
official functions and designation.

He claimed that he was terminated by the respondents in utter bad faith, as the
decision on the said termination was arrived without just and valid cause.

The petitioner company alleged that the dismissal of Ramirez was based on facts
unearthed during the formal investigation, and that he was guilty of serious
misconduct, a valid ground for his termination.

Issue: Whether the respondent was legally dismissed by the petitioner on the ground
of dishonesty.

Ruling: The Court ruled that an employer enjoys a wide latitude of discretion in the
promulgation of policies, rules, and regulations on work-related activities of the
employees so long as they are exercised in good faith for the advancement of the
employers interest and not for the purpose of defeating or circumventing the rights of
the employees under special laws or under valid agreements. Company policies and
regulations are generally valid and binding on the parties and must be complied with
until finally revised or amended, unilaterally or preferably through negotiation, by
competent authority. For misconduct or improper behaviour to be a just cause for
dismissal, the same must related to the performance of the employees duties and
must show that he has become unfit to continue working for the employer.

The designation of the respondent, who was employed as driver-helper, but
temporarily assigned as route salesman for a period of three (3) days, did not
automatically make him an employee on whom the petitioner reposed trust and
confidence. Despite his additional duties, the respondent remained a driver-helper
of the petitioner. Thus respondent cannot be dismissed pursuant to Article 282 of the
Labor Code.

We agree with the CA. As the Court ruled in Pepsi-Cola Distributors of the
Philippines, Inc. V. NLRC
...Moreover, private respondent was already penalized with suspension in some of
the infractions imputed to him in this case, like sleeping while on route rides,
incomplete accomplishment of sales report and his failure to achieve sales
commitments. He cannot again be penalized for those misconduct. The foregoing
acts cannot be added to support the imposition of the ultimate penalty of dismissal
which must be based on clear and not on ambiguous and ambivalent ground.

Considering the factual backdrop in this case, the Court find and rule that for his
infractions, the respondent should be meted a suspension of two (2) months.



423
Genuino Ice Company v. Magpantay
G.R. No. 147790
Serious Misconduct

Facts: Alfonso Magpantay (respondent) was employed by Genuino Ice Co., Inc.
(petitioner) as machine operator.

In 1996, the respondent filed against petitioner a Complaint for illegal dismissal for
the alleged valid ground for he led an illegal strike at its sister company, Genuino
Agro Industrial Development Corporation which brought losses. This act was
tantamount to serious misconduct or willful disobedience, gross and habitual neglect
of duties, and breach of trust. Subsequently included insubordination among the
grounds.

Respondent appealed from the LA. The NLRC, in its Decision dated June 30, 1999,
sustained the findings of the LA. All appeals are denied.

Issue: Whether the respondents actions on holding a strike, four-day absences a
habitual and neglect of duty and insubordination be valid grounds for his dismissal.

Ruling: On the issue of illegal dismissal, both the Labor Arbiter and the NLRC were
one in concluding that petitioner had just cause for dismissing respondent, as his act
of leading a strike at petitioners sister company.

Under Article 282 of the Labor Code, as amended, an employer may terminate an
employment for serious misconduct or willful disobedience by the employee of the
lawful orders of his employer or representative in connection with his work. The
employer has the burden of proving that the dismissal was for a just cause; failure to
show this would necessarily mean that dismissal was unjustified and, therefore,
illegal.

Neglect of duty, to be a ground for dismissal, must be both gross and habitual.
Gross negligence connotes want of care in the performance of ones duties for a
period of time, depending upon the circumstances. On the other hand, fraud and
wilful neglect of duties imply bad faith on the employee of in failing to perform his job
to the detriment of the employer and the latters business. Thus, the single or
isolated act of negligence does not constitute a just cause for the dismissal of the
employee.

Thus, the Court agrees with the CA that respondents four-day absence is not
tantamount to a gross and habitual neglect of duty. His absences did not contribute
to the detriment of GICIs operations and caused it irreparable damage.

On the issue of illegal strike, the petitioners memorandum showed glaring violations
of his right to substantive and procedural due process and reveal the true
circumstances of his dismissal as failure to abide with the managements decision to
transfer him. The rule is that the transfer of an employee ordinarily lies within the
ambit of the employers prerogatives and exercises it for a valid reason and
according to the requirement of its business, provided such transfer does not result
in demotion in rank or diminution of the employees salary, benefits, and other
privileges.

The Court cannot accept the proposition that when an employee opposes his
employers decision to transfer him to another work place, there being no bad faith or
underhanded motives on the part of either party, it is the employees wishes that
should be made to prevail.

Willful disobedience, or insubordination as otherwise branded in this case, as a just
cause fro dismissal of an employee, necessitates the concurrence of; (1) the
employees assailed conduct must have been willful, as shown 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 duties which he had been engaged
to discharge.

Being the case, respondent cannot adamantly refuse to abide by the order of
transfer without exposing himself the risk of being dismissed. Hence, his dismissal
was for a just cause and in accordance with Article 282 (a) of the Labor Code and is
not entitled to reinstatement and benefits.

424
Premiere Dev. Bank v. Mantal
G.R. No. 167716 485 SCRA 234 (2006)
Serious Misconduct

Facts: Respondent is a regular employee of petitioners Cubao branch, as
accounting clerk since 1996.

In 2000, the branch manager, Rosario Detalla, instructed respondent on the
confirmation of bank guarantee of GIA Fuel and Lubricant Dealer who has a credit
line and account with petitioner bank. However, upon verification from the head
office, Crisostomo was informed that the bank guarantee was spurious.

On the same day, Elsie Escudero Mantal was summoned and required to write down
all she knew on the above-mentioned bank guarantee. Respondent also received
memorandum placing her under preventive suspension effective immediately for 30
days. During the investigation, Detalla admitted issuing the falsified bank guarantee.

Detalla tendered her irrevocable resignation. Respondent was asked to execute a
resignation letter but declined. The following day, she received Notice of
Termination of her employment.

Mantal filed a Complaint for illegal suspension, dismissal and unpaid salary and other
benefits.

In 2002, the LA hold the petitioner liable for illegal suspension and dismissal and
ordered for the reinstatement of the respondent.

The NLRC reversed the LAs decision and dismissed the complaint for lack of merit.

Issue: Whether respondent was validly suspended and dismissed from her position
as accounting clerk.

Ruling: Misconduct is improper or wrongful conduct. It is the transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty, wilful in
character, and implies wrongful intent and not mere error in judgment. Under Article
282 of the Labor Code, the misconduct, to be a just cause for termination, must be
of such grave and aggravated character, not merely of a trivial or unimportant
nature. For serious misconduct to warrant the dismissal of an employee, it (1) must
be serious; (2) must relate to the performance of the employees duty; and (3) must
show that the employee has become unfit to continue working for the employer.

In JGB and Associates, Inc. v NLRC, the Court held that gross negligence connotes
want of care in the performance of ones duties for a period of time, depending upon
the circumstances. Fraud and wilful neglect of duties imply bad faith of the employee
in failing to perform his job to the detriment of the employer and the latters business.

In the case at bar, respondent cannot be held liable for serious misconduct or gross
negligence. No independent evidence was presented to prove her willful
conspiracy with Detalla. Petitioner even admitted that there is no direct evidence
that respondent benefited from the falsified bank guarantee. Liability for the incident
lay solely with Detalla, who patently breached the trust and confidence of petitioner.
Respondent merely followed the orders of the bank manager which appeared to be
regular. Further, the nature of respondents job does not include processing of bank
loans and guarantees. Her work as accounting clerk refers only to the opening of
deposits and processing of withdrawals. The alleged infraction was not within the
scope of her job function.

The decision and resolution of the Court of Appeals are Affirmed.



425
Molina v. Pacific Plans, Inc.
484 SCRA 498 (2008)
Serious Misconduct

Facts: Pacific Plans, Inc. (PPI) is a domestic corporation engaged in the business of
selling pre-need plans nationwide. Its Metro Manila regional offices were divided into
two sales division; the North and South.

In 1994, PPI hired Agripino Molina as REhional Manager for the Metro Manila VI,
where he performed both administrative and marketing functions. Later he was
promoted as Assistant VP.

In 2000, there was a considerable decrease in the sales output production of PPIs
Metro Manila VI. This was due to the alleged of recruiting and pirating activities of
the petitioner among the companys associates to join in Caritas; solicited
contributions from them for the bill and later ask for reimbursement from the
company; and acts of misdemeanour on several occasions, such as coming to the
office under the influence of liquor, initiating smear campaign against PPI, and other
conflicting interests. PPIs upon knowledge of such, ask the petitioner for the written
explanation of his unbecoming of an officer and was issued a preventive suspension.

Molina denied all allegations to him. Complaint was filed against PPI and its
executives for his illegal suspension and dismissal with claim for monetary benefits.

Molina admitted having had drinking sessions but only after office hours.

According to the NLRC, the charges of coming to the office under the influence of
liquor and making PPI reimbursement paid by his co-employees were not supported
by the records.

In this case, the LA declared that there as substantial evidence on record warranting
the dismissal of petitioner as Assistant VP for serious misconduct in office. The
NLRCs disagreed with LA and reversed its decision. CA concurred with the findings
of LA. In view of the discordance between the findings of LA and CA and NLRC.
There is a need for the Court to review the factual findings and the conclusions
based on findings.

Issue: Whether the petitioner was validly dismissed from his employment on the
grounds of serious misconduct.

Ruling: As the Court ruled in Diamond Motors Corporation vs. Court of Appeals;
Misconduct has been defined as improper or wrong conduct the transgression of
some established and definite rule of action, a forbidden act, a dereliction of duty,
unlawful in character and implies wrongful intent and not mere error of judgment.

The misconduct to be serious must be of such grave and aggravated character and
not merely trivial and unimportant. Such misconduct, however, serious must
nevertheless, be in connection with employers work to constitute just cause for
separation. The petitioner does not deny having had heated exchange of words with
his Regional Manager.

In this case, the Court are not persuaded that Caritas is a business competitor of
respondent.

The Court finds, however that the evidence adduced by respondent insufficient to
warrant the petitioners dismissal from employment.

There is no evidence on record to prove that respondent expressly prohibited its
Sales Associates from selling for Caritas. Neither is there evidence on record to
prove that Caritas prohibited its sales associates from selling pre-need plans of
respondent.



426
Aris (Phil.), Inc. V. NLRC
G.R. No. 97817 233 SCRA 59 (1994)
Serious Misconduct

Facts: In 1988, Arnel Santos, when questioned by Eufemia Bautista, a canteen
helper, for his use of somebodys identification card (ID), flared up and shouted
invectives (wala kang pakialam! Kung gusto mo, itapon ko itong mga pagkain ninyo)
at her. When he noticed that some people were staring at him rather menacingly and
he acted rude towards them and slapped Eufemia which cause her to fall and suffer
slight contusions. The guard on duty submitted report to company officials. Eufemia
then filed a Complaint with Jesus Perez, the personnel manager of Aris, against
Santos.

A memorandum was issued to Santos requiring him to explain. He admitted his
misconduct due to drunkenness.

In 1988, the personnel manager issued a letter of termination from employment of
Santos for gross misconduct seriously violative of the company rules and
regulations.

Eufemia filed with the Lupong Tagapayapa her complaint against Santos.
Eventually filed to MTC for slight physical injuries.

Santos and the Confederation of Filipino Workers-Aris Philippines Workers Union
filed complaint for the illegal dismissal. The LA order for the reinstate complainant
Santos to his position without backwages.

The NLRC further observed: the slapping/punching incident happened in the
canteen. The misconduct of the complainant, therefore, was not connected with his
employment. As a matter of fact, said incident did not, in any way, disrupt the
operations of respondent. Consequently, the ultimate penalty of dismissal is too
severe.

Issue: Whether the petitioner was illegally dismissed on the ground of serious
misconduct.

Ruling: It is not disputed that private respondent has done, indeed he has admitted
to having committed, a serious misconduct. In order to constitute a just cause for
dismissal, however, the act complained of must be related to the performance of the
duties of the employee such as would show him to be thereby unfit to continue
working for the employer. The Court condone the guilt of private respondent, we,
nevertheless, are concluded by the factual finding of the NLRC that his misconduct is
not work-related and did not disrupt the operations of the company.
The petition is Dismissed, and the temporary restraining order issued by the Court is
Lifted.
427
NLRC v. Salgarino
G.R. No.164376 497 SCRA 361, 375-376 July 31, 2006
Serious Misconduct

Facts: In April 1988, respondent Maria Bernadette A. Salgarino was employed by
Petitioner St. Jude Catholic School as Mathematics teacher for third and fourth year
high school students.

In 1999, the respondent went on maternity leave. While on leave she conducted
make-up tests in her house for the improvement of grades of the students without
permission from the petitioners.

A substitute teacher is assigned to look over her class and prepared for the grading
sheets as well. The records showed that some of the fourth year students obtained
failing grades in Math. Subsequently, respondent Salgarino, still on leave,
requested the substitute teacher Capistrano to bring to their house the grading
sheets and marked passing grade of 75% to all those students with failing grades out
of valid projects, make-up tests and humanitarian reasons.

Upon return of the grading sheets, the substitute teacher noticed the additions made
by the respondent thus referred the matter to the Acting Director/Principal of
petitioner school.

The Acting Director/Principal directed Salgarino to submit herself to the panel for the
investigation of the alleged tampered school records in violation of school policies
and committed misconduct by increasing the grades of her students and the same
was admitted.

The panel concluded that respondent altered her students grades while she was on
leave that showed a case of education malpractice or grave misconduct and grossly
prejudicial to the good name of the school.

The respondent has violated Article XV, Section 79, Basis for Grading and Article
XVII, Section 94 (b) on negligence in keeping school records, or tampering with or
falsification of the same; xxx of the Manual of Regulations for Private Schools.

On these bases the committee ruled for the termination of the respondent.

The respondent filed Complaint for illegal dismissal with the Labor Arbiter. The LA in
its decision ruled for illegal dismissal as there was no valid or just cause.

Issue: Whether the private respondent Salgarino has been illegally dismissed the
fact her admission of the changing of failing grades to passing marks of her students
while on maternity leave.

Ruling: Truly, then, respondent had committed a misconduct. However, such
misconduct is not serious enough to warrant her dismissal from employment under
paragraph (a) of Article 282 of the Labor Code.

Misconduct is defined as improper or wrong conduct. It is the transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty, wilful in
character and implies wrongful intent and not a mere error of judgment.

Mere error in judgment cannot qualify as misconduct (much less a serious one)
because of lack of wrongful intent that the act or conduct complained of has violated
some established rules or policies. It is equally important and required that the act or
conduct must have been performed with wrongful intent.

As caveat, it would do well for respondent to act more conscientiously and with more
regard to the policies.

The Court affirmed the CAs ruling and ordered the petitioners to reinstate
respondent to her former position or its equivalent without lost of seniority rights or
privileges plus her full backwages.