Dear PAO,

Two months ago, I was relieved from my position as accounting officer after my immediate supervisor caught me nodding off at work during office hours. I was immediately issued a Notice to Explain, directing me to explain my action, which, according to my employer, constitutes a violation of the company Code of Conduct, and is tantamount to serious misconduct — a just cause for dismissal under the Labor Code. Thereafter, I was issued a Notice of Decision, effectively terminating my employment on the grounds that, per company’s Code of Conduct, sleeping while on duty is considered serious misconduct, the penalty for which is dismissal. I feel gravely wronged, and I want to take legal action. In this regard, do I have a case for illegal dismissal?

Tim

Dear Tim,

It is well-settled under the 1987 Constitution of the Philippines that every employee has the right to security of tenure. (Article XIII, Section 3, 1987 Constitution).

It is among the cardinal rights accorded to labor upon which the provisions of Presidential Decree (PD) 442, otherwise known as the Labor Code of the Philippines, were founded on.

In line with the basic policy of the State to provide full protection to labor, and to give meaning to the constitutional right to security of tenure, our laws mandate strict adherence to procedural and substantive due process requirements in termination of employment. This means that an employee shall only be dismissed from employment based on just or authorized cause, and after the twin requirements of notice and hearing have been duly accorded.

Article 297 of the same Code provides the just causes for termination of employment. Among these is, indeed, serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work.

Serious misconduct pertains to “a 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 warrant the dismissal of an employee based on this, the misconduct must be serious and not merely trivial; must relate to the performance of the employee’s duties, showing that the employee has become unfit to continue working for the employer; and must have been performed with wrongful intent. (G & S Transport Corporation vs. Reynaldo A. Medina, GR 243768, Sept. 5, 2022, Ponente: Associate Justice Ramon Paul Hernando)

An employee may, likewise, be validly dismissed on the ground of violation of a company policy. This is because our laws equally recognize the inherent right of the employers to regulate and control various aspects of employment. In light of this, the employers may prescribe reasonable rules and regulations that they deem fit and effective for the proper conduct of their business. To ensure compliance with these rules and regulations, the employers may impose disciplinary measures — ranging from verbal warnings to termination, depending on the severity of the violation, to erring employees.

In the exercise of their right to impose penalties and disciplinary sanctions to erring employees, the employers must adhere to the principle of proportionality, which requires “a reasonable proportionality between the offense and the penalty. The penalty must be commensurate to the offense involved and to the degree of the infraction.” (Nancy Claire Pit Celis vs. Bank of Makati, GR 250776, June 15, 2022, Ponente: Associate Justice Henry Paul Inting)

The principle of proportionality is especially applicable when imposing the ultimate penalty of dismissal from employment. The employers would do well to remember that “[t]he dismissal of an employee must be done with just cause and without abuse of discretion. It must not be done in an arbitrary and despotic manner. To hold otherwise would render nugatory the security of tenure clause enshrined in the Constitution.” (P.J. Lhuillier, Inc., et al. vs. Flordeliz Velayo, GR 198620, Nov. 12, 2014, Ponente: Associate Justice Ruben Reyes)

It may be inferred from your narration of facts that the penalty of dismissal imposed on you is unduly harsh and utterly disproportionate to the infraction of inadvertently falling asleep while on duty. Again, to warrant a dismissal on the ground of serious misconduct, the infraction committed must be serious and not merely trivial; it must relate to the performance of your duties, showing you have become unfit to continue working for your employer; and lastly, it must have been performed with wrongful intent. Surely, your fitness for continued employment cannot be determined with certainty by the lone instance of unintentionally falling asleep while on duty.

Ultimately, your employer bears the burden of proving that your dismissal was for a just cause. They must prove by substantial evidence that your single act of falling asleep while on duty constitutes a serious misconduct which warrants your outright dismissal from employment. Should they fail to prove the foregoing, then a finding of illegal dismissal shall be forthcoming.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].