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HERNANDEZ & BERNALDEZ LAW FIRM

Cudal St., Malaybalay City, Bukidnon


09268356572/ joaniebernaldez@yahoo.com

November 3, 2014

SOUL SEARCH MUSIC STORE (SSMS)


Valencia City, Bukidnon

Lara Diaz v Soul Search Music Store (SSMS)

Gentlemen:
We write regarding your request in relation to the above referenced
case.
Based on the information that you have furnished, I understand the
facts to be as follows:
Lara Diaz filed a case for illegal dismissal, backwages with
reinstatement or separation pay because her dismissal was not due to her
own fault but of another and that the transaction did not result to a loss or
damage on the part of SSMS, accordingly her dismissal was void and illegal.
Sometime in December 2013, the Fraud Management Unit of BPI
reported to SSMS that there were suspicious voided credit card

transactions concerning a BPI credit card terminal in its Valencia Branch.


Acting on such report the auditor of SSMS went to the Valencia Branch to
investigate on January 15, 2014. Upon checking the Branchs daily logbook,
it was found that Diaz was the cashier on duty at the time when the
suspicious transactions occurred. It was also found that there were no sales
transactions matching the suspicious voided BPI credit card transactions.
When asked, Diaz could not explain the voided transactions that transpired
during her duty.
Thereafter, complainant was preventively suspended to allow
respondent to further investigate the matter. In its investigation, it was
later found that the voided transactions were allegedly done by a former
promodizer. The suspension of complainant was later extended since the
investigation was not yet concluded. Complainant was later dismissed due
to the following reasons: (1) abandonment of post, thereby endangering
the company property or assets and/or disrupting the company operations
and (2) without prior authority, allowing another person to operate or
tinker with any company vehicle, machine or specialized tools and
equipment.
From the facts culled, the court may deem that the dismissal is valid.
Under Article 282 of the Labor Code, an employer may terminate an
employment for any of the following causes:
(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. (Emphasis supplied)
Gross negligence has been defined as the want or absence of or
failure to exercise slight care or diligence, or the entire absence of care. It
evinces a thoughtless disregard of consequences without exerting any
effort to avoid them.1
To justify the dismissal of an employee for neglect of duties,
however, it does not seem necessary that the employer show that he has
incurred actual loss, damage, or prejudice by reason of the employees
conduct. It is sufficient that the gross and habitual neglect by the employee
of his duties tends to prejudice the employers interest since it would be
unreasonable to require the employer to wait until he is materially injured
before removing the cause of the impending evil.2
The Court ruled that the employer cannot be compelled to continue
in employment an employee guilty of acts inimical to the interest of the
employer and justifying loss of confidence in him.3
But to be a valid reason of dismissal, loss of confidence must be
substantial and not arbitrary, and must be founded on clearly established
facts sufficient to warrant the employees separation from work.4
The Court ruled that loss of confidence is a valid ground for
dismissing an employee and proof beyond reasonable doubt of the
employees misconduct is not required. It is sufficient if there is some basis
for such loss of confidence or if the employer has reasonable ground to
believe or to entertain the moral conviction that the employee concerned is
responsible for the misconduct and that the nature of his participation

Citibank vs. Gatchalian, et al., G.R. No. 111222, January 18, 1995
Department of Labor Manual, Sec. 4343.01 [27]
3
Tabacalera Insurance Co., Inc. vs. NLRC, et al., G.R. No. 83834, June 30, 1989
4
Artemio Labor, et al. vs. NLRC, Gold City Commercial Inc., and Rudy Uy, G.R. No. 110388, September 14, 1995
2

therein rendered him unworthy of the trust and confidence demanded by


his position.5
Applying the foregoing to the instant case, the following are the
defenses available to you if you will opt to pursue the case:
1. First, we can show that abandonment of post and allowing
another person to operate or tinker with any company vehicle,
machine or specialized tools and equipment without prior
authority amounts to gross negligence/serious dereliction of duty
resulting in loss of confidence by the management. Therefore the
dismissal is valid.
2. Second, we can show that loss or damage to the employer, as
alleged by the Lara Diaz, is not necessary in order to justify the
dismissal of an employee. It is sufficient that the gross and
habitual neglect by the employee of his duties tends to prejudice
the employers interest since it would be unreasonable to require
the employer to wait until he is materially injured before
removing the cause of the impending evil.
3. In the event that the court decides that the dismissal is valid, no
backwages nor separation pay need be paid to the employee.
On the other hand, if you will opt to make an amicable settlement
with the plaintiff, the following are your advantages:
1) Faster. The biggest advantage of amicable settlement over the
current court systems is the fact that, court trials take a lot of
time while making amicable settlement is swift. In many
jurisdictions around the world it could take months, even years
before the dispute can even be heard before the judge, let alone a
verdict. Where more time is spent in the trial, overall costs
increases and adversely affects the business.

N. Mabeza vs NLRC and Hotel Supreme, G.R. No. 118506, April 18, 1997

2) Cost-saving. The court trials involve many lengthy procedures


which are both time-consuming and costly. But in amicable
settlement, the expenses are kept down. The wait in the court
and the lengthy procedures drive the costs of justice very high.
But amicable settlement offers the benefit of getting the issue
resolved quicker and cheaper than court trials which means
money is spent less on both sides.6
We hope that we answered your legal queries and should you have
any further questions on the foregoing, please do not hesistate to
communicate with us.

Very truly yours,


HERNANDEZ & BERNALDEZ
LAW FIRM
By:

JOANIE CHARMAINE B. HERNANDEZ

Effective Tool in Settlement of Business Disputes by Justice Myrna Dimaranan Vidal