Finals Quiz (Labrel)
constrained to resign. The petitioners cannot expect Johnson to tolerate working
Article 282
1. Concepcion v. Minex Import Corporation
It has been raised and rejected many times before on the basis that neither
conviction beyond reasonable doubt for a crime against the employer nor
acquittal after criminal prosecution was indispensable. Nor was a formal charge
in court for the acts prejudicial to the interest of the employer a pre-requisite for
a valid dismissal. Nonetheless, the dismissal for a just or lawful cause must still
be made upon compliance with the requirements of due process under the Labor
Code; otherwise, the employer is liable to pay nominal damages as indemnity to
the dismissed employee.
It is unfair to require an employer to first be morally certain of the guilt of the
employee by awaiting a conviction before terminating him when there is already
sufficient showing of the wrongdoing. Requiring that certainty may prove too late
for the employer, whose loss may potentially be beyond repair.
For termination of employment based on just causes as defined in Article 282 of
the Labor Code: (i) A written notice served on the employee specifying the
ground or grounds for termination, and giving said employee reasonable
opportunity within which to explain his side. (ii) A hearing or conference during
which the employee concerned, with the assistance of counsel if he so desires is
given opportunity to respond to the charge, present his evidence, or rebut the
evidence presented against him. (iii) A written notice of termination served on
the employee, indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination.
Under the Civil Code, nominal damages is adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be vindicated
or recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.
2. GRAND ASIAN SHIPPING LINES and HOW, vs. GALVEZ, ET AL
With respect to rank-and-file personnel, loss of trust and confidence, as ground
for valid dismissal, requires proof of involvement in the alleged events x x x while
for managerial employees, the mere existence of a basis for believing that such
employee has breached the trust of his employer would suffice for his dismissal.
3. Dreamland Hotel and Resort v. Johnson
The resignation of Johnson was due to the petitioners acts that he was
for them without any compensation. Since Johnson was constructively dismissed,
he was illegally dismissed.
Thus, an illegally dismissed employee is entitled to two reliefs: backwages and
reinstatement. The two reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of strained relations between
the employee and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable, or separation
pay if reinstatement is no longer viable, and backwages.
The normal consequences of respondents illegal dismissal, then, are
reinstatement without loss of seniority rights, and payment of backwages
computed from the time compensation was withheld up to the date of actual
reinstatement. Where reinstatement is no longer viable as an option, separation
pay equivalent to one (1) month salary for every year of service should be
awarded as an alternative. The payment of separation pay is in addition to
payment of backwages.
4. Mirant Phil. Corp. v. Caro
It is beyond debate that petitioner Corporations enforcement of its Anti-Drugs
Policy is an exercise of its management prerogative. The Company Policy was not
clear on what constitutes "unjustified refusal" when the subject drug policy
prescribed that an employees "unjustified refusal" to submit to a random drug
test shall be punishable by the penalty of termination for the first offense.
Employees offense must be commensurate with the sanction imposed.
5. Bluer than blue Joint Ventures Co. v. Esteban
"It is not the job title but the actual work that the employee performs that
determines whether he or she occupies a position of trust and confidence."
Among the fiduciary rank-and-file employees are cashiers, auditors, property
custodians, or those who, in the normal exercise of their functions, regularly
handle significant amounts of money or property. These employees, though rank-
and-file, are routinely charged with the care and custody of the employers money
or property, and are thus classified as occupying positions of trust and
confidence.
Loss of trust and confidence to be a valid cause for dismissal must be work related
such as would show the employee concerned to be unfit to continue working for
the employer and it must be based on a willful breach of trust and founded on
clearly established facts.
However, as ruled above, such breach must have been done intentionally,
knowingly, and purposely, and without any justifiable excuse, and not simply
something done carelessly, thoughtlessly, heedlessly or inadvertently.
6. Manila Jockey Club v. Trajano
It must rest on substantial grounds and not on the employers arbitrariness,
whims, caprices or suspicion; otherwise, the employee would eternally remain at
the mercy of the employer. An ordinary breach is not enough.
Such breach is willful if it is done intentionally, knowingly, and purposely,
without justifiable excuse as distinguished from an act done carelessly,
thoughtlessly, heedlessly, or inadvertently.
To dismiss an employee based on speculation as to the damage the employer
could have suffered would be an injustice. Furthermore, the loss of trust and
confidence as a ground for the dismissal of an employee must also be shown to
be genuine. Loss of confidence should not be simulated in order to justify what
would otherwise be, under the provisions of law, an illegal dismissal. It should
not be used as a subterfuge for causes which are illegal, improper and unjustified.
It must be genuine, not a mere afterthought to justify an earlier action taken in
bad faith.
The Court has clarified that the opportunity to confront a witness is not
demanded in company investigations of the administrative sins of an employee.
Confrontation of witnesses is required only in adversarial criminal prosecutions,
and not in company investigations for the administrative liability of the
employee. Additionally, actual adversarial proceedings become necessary only
for clarification, or when there is a need to propound searching questions to
witnesses who give vague testimonies. This is not an inherent right, and in
company investigations, summary proceedings may be conducted.
7. Hormillosa v. Coca Cola
The requisites for a valid dismissal on the ground of loss of trust and confidence
are as follows: (1) the employee concerned must be one holding a position of
trust and confidence; and (2) there must be an act that would justify the loss of
trust and confidence.
The first class consists of managerial employees. They are defined as those vested
with the powers or prerogatives to lay down management policies and to hire,
transfer suspend, lay-off, recall, discharge, assign or discipline employees or
effectively recommend such managerial actions. The second class consists of
cashiers, auditors, property custodians, etc.
8. Chuanico v. Legacy Consolidated Plans
Settled is the rule, however, that under Article 282( c) of the Labor Code, the
breach of trust must be willful. Ordinary breach will not be enough. A breach is
willful if it is done intentionally and knowingly without any justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly or inadvertently. Willful
breach was not proved in this case.
9. Duncan Association of Detailman-PGTWO v. Glaxo
Constructive dismissal is defined as a quitting, an involuntary resignation
resorted to when continued employment becomes impossible, unreasonable, or
unlikely; when there is a demotion in rank or diminution in pay; or when a clear
discrimination, insensibility or disdain by an employer becomes unbearable to
the employee.
The prohibition against personal or marital relationships with employees of
competitor companies upon Glaxos employees is reasonable under the
circumstances because relationships of that nature might compromise the
interests of the company. In laying down the assailed company policy, Glaxo only
aims to protect its interests against the possibility that a competitor company will
gain access to its secrets and procedures.
That Glaxo possesses the right to protect its economic interests cannot be denied.
No less than the Constitution recognizes the right of enterprises to adopt and
enforce such a policy to protect its right to reasonable returns on investments
and to expansion and growth. The challenged company policy does not violate
the equal protection clause of the Constitution as petitioners erroneously
suggest. It is a settled principle that the commands of the equal protection clause
are addressed only to the state or those acting under color of its authority.
Since Tecson knowingly and voluntarily entered into a contract of employment
with Glaxo, the stipulations therein have the force of law between them and, thus,
should be complied with in good faith. He is therefore estopped from
questioning said policy.
Glaxo properly exercised its management prerogative in reassigning Tecson to
the Butuan City sales area.
10. Star Paper Corporation et al. v. Simbol
A requirement that a woman employee must remain unmarried could be justified
as a bona fide occupational qualification, or BFOQ, where the particular
requirements of the job would justify the same, but not on the ground of a general
principle, such as the desirability of spreading work in the workplace. A
requirement of that nature would be valid provided it reflects an inherent quality
reasonably necessary for satisfactory job performance.
The failure of petitioners to prove a legitimate business concern in imposing the
questioned policy cannot prejudice the employees right to be free from arbitrary
discrimination based upon stereotypes of married persons working together in
one company.
11. Ace Promotion and Marketing Corp. v. Ursabia
To constitute a just and valid ground for dismissal, abandonment requires the
deliberate and unjustified refusal of the employee to resume his employment.
Two elements must be present, namely: (1) the failure to report for work or
absence without valid or justifiable reason, and (2) a clear intention to sever the
employer-employee relationship. The second element is more determinative of
the intent and must be evinced by overt acts. Mere absence, not being sufficient,
the burden of proof rests upon the employer to show that the employee clearly
and deliberately intended to discontinue his employment without any intention
of returning.
To be validly dismissed on the ground of willful disobedience requires the
concurrence of at least two requisites: (1) the employee's assailed conduct must
have been willful or intentional, the willfulness being 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.
The failure of respondent to answer the July 9 and 10, 2001 memoranda of
petitioner is clearly intentional. He reported to and loitered outside petitioner's
premises but never made any oral or written reply to the said memoranda. This
shows respondent's wrongful and perverse attitude to defy the reasonable
orders which undoubtedly pertain to his duties as an employee of petitioner.
12. Concepcion v. Minex Import Corporation
It is not necessary that the employer should await the employees final conviction
in the criminal case involving such fraud or breach of trust before it can terminate
the employees services. In fact, even the dropping of the charges or an acquittal
of the employee therefrom does not preclude the dismissal of an employee for
acts inimical to the interests of the employee.
13. St. Lukes Medical Center Inc. v Notario
Neglect of duty must be both gross and habitual. Gross negligence connotes want
of care in the performance of ones duties. Habitual neglect implies repeated
failure to perform ones duties for a period of time, depending upon the
circumstances. A single or isolated act of negligence does not constitute a just
cause for the dismissal of the employee.
Under the prevailing circumstances, respondent exercised his best judgment in
monitoring the CCTV cameras so as to ensure the security within the hospital
premises. Verily, assuming arguendo that respondent was negligent, the lapse or
inaction could only be regarded as a single or isolated act of negligence that
cannot be categorized as habitual and, hence, not a just cause for his dismissal.
14. The Coca-Cola Export Corporation v. Gacayan
When the breach of trust or loss of confidence theorized upon is not borne by
clearly established facts, such dismissal on the ground of loss and confidence
cannot be countenanced. In order to constitute serious misconduct which will
warrant the dismissal of an employee, it is not sufficient 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 done with
wrongful intent. Petitioner (employer) has the management prerogative to
discipline its employees and to impose appropriate penalties on erring workers
pursuant to company rules and regulations. [The] Court upholds these
management prerogatives 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 and valid
agreements. Xxx However, petitioners rules and regulations cannot preclude the
State from inquiring whether the strict and rigid application or interpretation
thereof would be harsh to the employee.
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. Thus, 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
employees duties; and (c) must show that the employee has become unfit to
continue working for the employer. Indeed, an employer may not be compelled
to continue to employ such person whose continuance in the service would be
patently inimical to his employers business.
In this light, the alleged infractions of respondent could hardly be considered
serious misconduct. It is well to stress that in order to constitute serious
misconduct which will warrant the dismissal of an employee, it is not sufficient
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 done with wrongful intent. Such is, however, lacking in the instant case.
Petitioners rules cannot preclude the State from inquiring whether the strict and
rigid application or interpretation thereof would be harsh to the employee. Even
when an employee is found to have transgressed the employers rules, in the
actual imposition of penalties upon the erring employee, due consideration must
still be given to his length of service and the number of violations committed
during his employ.
15. Domingo v. Rayala
It is noteworthy that under AO 250, sexual harassment amounts to disgraceful
and immoral conduct Thus, any finding of liability for sexual harassment may also
be the basis of culpability for disgraceful and immoral conduct.
Under the Labor Code, the Chairman of the NLRC shall hold office during good
behavior until he or she reaches the age of sixty-five, unless sooner removed for
cause as provided by law or becomes incapacitated to discharge the duties of the
office.
In this case, it is the President of the Philippines, as the proper disciplining
authority, who would determine whether there is a valid cause for the removal
of Rayala as NLRC Chairman. This power, however, is qualified by the phrase "for
cause as provided by law." Thus, when the President found that Rayala was
indeed guilty of disgraceful and immoral conduct, the Chief Executive did not
have unfettered discretion to impose a penalty other than the penalty provided
by law for such offense.
Even if the OP properly considered the fact that Rayala took advantage of his high
government position, it still could not validly dismiss him from the service. Under
the Revised Uniform Rules on Administrative Cases in the Civil Service, taking
undue advantage of a subordinate may be considered as an aggravating
circumstance and where only aggravating and no mitigating circumstances are
present, the maximum penalty shall be imposed. Hence, the maximum penalty
that can be imposed on Rayala is suspension for one (1) year.
16. Philippine Aeolus Automotive United Corporation vs NLRC
However, 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
Gross negligence implies a 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. The negligence, to
warrant removal from service, should not merely be gross but also habitual.
17. Pharmacia and Upjohn Inc. v. Albayda
Transfer was held to be a valid exercise of management prerogative. LA explained
that the reassignment of respondent was not a demotion as he will also be
assigned as a District Sales Manager in Mindanao or in Metro Manila and that the
notice of his transfer did not indicate that his emoluments will be reduced.
The NLRC ruled that petitioners restructuring move was a valid exercise of its
management prerogative and authorized under the employment contract of
respondent.
There is nothing in the records to prove that the restructuring move of
respondent company was done with ill motives or with malice and bad faith
purposely to constructively terminate complainants employment.
The LA ruled that because of respondents adamant refusal to be reassigned,
petitioners had valid grounds to terminate his employment. Clearly, the
complainant had abandoned his work by reason of his being on AWOL as a
consequence of vigorous objection to his transfer to either Cagayan de Oro or
Metro Manila. The long period of absence of complainant without official leave
from April to July 19, 2000 is more than sufficient ground to dismiss him. The
refusal of complainant to accept his transfer of assignment is a clear willful
disobedience of the lawful order of his employer.
Apparently, complainant, by his unjustified acts of refusing to be transferred
either to Mindanao or Manila for personal reasons, absent any bad faith or malice
on the part of respondents, has deliberately ignored and defied lawful orders of
his employer. An employee who refuses to be transferred, when such transfer is
valid, is guilty of insubordination.
This Court has long stated that the objection to the transfer being grounded solely
upon the personal inconvenience or hardship that will be caused to the employee
by reason of the transfer is not a valid reason to disobey an order of transfer. Such
being the case, respondent cannot adamantly refuse to abide by the order of
transfer without exposing himself to the risk of being dismissed. Hence, his
dismissal was for just cause in accordance with Article 282(a) of the Labor Code.
Lastly, while it is understandable that respondent does not want to relocate his
family, this Court agrees with the NLRC when it observed that such inconvenience
is considered an "employment" or "professional" hazard which forms part of the
concessions an employee is deemed to have offered or sacrificed in the view of
his acceptance of a position in sales.
18. Jerusalem v. Hock
The burden of establishing facts as bases for an employers loss of confidence in
an employee facts which reasonably generate belief by the employer that the
employee was connected with some misconduct and the nature of his
participation therein is such as to render him unworthy of trust and confidence
demanded of his position is on the employer.
19. Reno Foods vs. NLM-Katipunan
There is no legal or equitable justification for awarding financial assistance to an
employee who was dismissed for stealing company property. Social justice and
equity are not magical formulas to erase the unjust acts committed by the
employee against his employer. While compassion for the poor is desirable, it is
not meant to coddle those who are unworthy of such consideration.
We find no justification for the award of separation pay to Capor. This award is a
deviation from established law and jurisprudence. The law is clear. Separation
pay is only warranted when the cause for termination is not attributable to the
employees fault, such as those provided in Articles 283 and 284 of the Labor
Code, as well as in cases of illegal dismissal in which reinstatement is no longer
feasible. It is not allowed when an employee is dismissed for just cause, such as
serious misconduct
Jurisprudence has classified theft of company property as a serious misconduct
and denied the award of separation pay to the erring employee. We see no reason
why the same should not be similarly applied in the case of Capor. She attempted
to steal the property of her long-time employer. For committing such misconduct,
she is definitely not entitled to an award of separation pay.
20. La Rosa et. al. v. Ambassador Hotel
Hotels memorandum dated April 5, 2000 (sic, should be 2002) informing La Rosa
et al. of the adoption of a two-day work scheme effective April 5, 2002 made no
mention why such scheme was being adopted. Neither do the records show any
documentary proof that the hotel suffered financial losses to justify its adoption
of the said scheme to stabilize its operations.
What is undisputed, as found by both the labor arbiter and the NLRC and
admitted by respondent itself, is that the complaints for violation of labor
standards laws were filed by La Rosa et al. against Ambassador Hotel at the
DOLE-NCR, some of which complaints were partially settled; and that almost
immediately after the partial settlement of the said complaints, the work
reduction/rotation scheme was implemented.
The hotels sudden, arbitrary and unfounded adoption of the two-day work
scheme which greatly reduced La Rosa, et al.s salaries renders it liable for
constructive dismissal. Upon the other hand, La Rosa et al.'s immediate filing of
complaints for illegal suspension and illegal dismissal after the implementation
of the questioned work scheme, which scheme was adopted soon after
petitioners complaints against respondent for violation of labor standards laws
were found meritorious, negates respondents claim of abandonment. An
employee who takes steps to protest his dismissal cannot by logic be said to have
abandoned his work.
21. Maribago Bluewater Beach Resort vs Nito Dual
The allegation of Dual that six (6) dinner sets were indeed cancelled as evidenced
by the dishes he allegedly saw in the utensil station is negated by the testimonies
of the kitchen staff (Chef Armand Galica, Butcher Alegrado and Dessert-in-charge
John Marollano) that twelve (12) set meals were served and consumed. These
testimonies coincide with the claim of waiters Hiyas and Mission that fourteen
(14) sets of dinner were served. The serving of food eliminates the argument of
cancellation.
Respondents acts constitute serious misconduct which is a just cause for
termination under the law. Theft committed by an employee is a valid reason for
his dismissal by the employer.
22. CENTURY CANNING CORP., PO JR. and RONQUILLO, vs. RAMIL
The Court however found that it would be best to award separation pay instead
of reinstatement, in view of the strained relations between Century and Ramil
because the latter was dismissed due to loss of trust and confidence and it would
be impractical to reinstate an employee whom the employer does not trust, and
whose task is to handle and prepare delicate documents.
Under the doctrine of strained relations, the payment of separation pay has been
considered an acceptable alternative to reinstatement when the latter option is
no longer desirable or viable. On the one hand, such payment liberates the
employee from what could be a highly oppressive work environment; on the
other hand, the payment releases the employer from the grossly unpalatable
obligation of maintaining in its employ a worker it could no longer trust.
23. Tongko v. The Manufacturers Life Insurance Co. Inc., November 7, 2008
(willful disobedience)
When there is no showing of a clear, valid and legal cause for the termination of
employment, the law considers the matter a case of illegal dismissal and the
burden is on the employer to prove that the termination was for a valid or
authorized cause. This burden of proof appropriately lies on the shoulders of the
employer and not on the employee because a worker's job has some of the
characteristics of property rights and is therefore within the constitutional
mantle of protection. Unsubstantiated suspicions, accusations and conclusions of
employers do not provide for legal justification for dismissing employees. To
repeat, mere conjectures cannot work to deprive employees of their means of
livelihood. Thus, it must be concluded that Tongko was illegally dismissed.
Tongko was illegally dismissed. NO WILLFULL DISOBEDIENCE. Manulife's
petition that it failed to cite a single iota of evidence to support its claims.
Manulife did not even point out which order or rule that Tongko disobeyed. More
importantly, Manulife did not point out the specific acts that Tongko was guilty
of that would constitute gross and habitual neglect of duty or disobedience.
Manulife merely cited Tongko's alleged "laggard performance," without
substantiating such claim, and equated the same to disobedience and neglect of
duty.
24. School of Holy Spirit of Quezon City v. Taguiam, July 14, 2008 (gross and
habitual neglect)
Under Article 282 of the Labor Code, gross and habitual neglect of duties is a valid
ground for an employer to terminate an employee. Gross negligence implies a
want or absence of or a 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. Habitual neglect implies repeated failure to
perform ones duties for a period of time, depending upon the circumstances.
Notably, respondents negligence, although gross, was not habitual. In view of the
considerable resultant damage, however, we are in agreement that the cause is
sufficient to dismiss respondent. As a result of gross negligence in the present
case, petitioners lost its trust and confidence in respondent.
Indeed, the sufficiency of the evidence as well as the resultant damage to the
employer should be considered in the dismissal of the employee. In this case, the
damage went as far as claiming the life of a child. As a result of gross negligence
in the present case, petitioners lost its trust and confidence in respondent. Loss
of trust and confidence to be a valid ground for dismissal must be based on a
willful breach of trust and founded on clearly established facts. s a teacher who
stands in loco parentis to her pupils, respondent should have made sure that the
children were protected from all harm while in her company Respondent should
have known that leaving the pupils in the swimming pool area all by themselves
may result in an accident. A simple reminder not to go to the deepest part of the
pool was insufficient to cast away all the serious dangers that the situation
presented to the children, especially when respondent knew that Chiara Mae
cannot swim. Dismally, respondent created an unsafe situation which exposed
the lives of all the pupils concerned to real danger. This is a clear violation not
only of the trust and confidence reposed on her by the parents of the pupils but
of the school itself.
25. Yrasuegui v. PAL, October 17, 2008 (Analogous Causes)
The obesity of petitioner is a ground for dismissal under Article 282(e) of the
Labor Code. It is a continuing qualification. Tersely put, an employee may be
dismissed the moment he is unable to comply with his ideal weight as prescribed
by the weight standards. The dismissal of the employee would thus fall under
Article 282(e) of the Labor Code. The standards violated in this case were not
mere "orders" of the employer; they were the "prescribed weights" that a cabin
crew must maintain in order to qualify for and keep his or her position in the
company. In this sense, the failure to maintain these standards does not fall under
Article 282(a) whose express terms require the element of willfulness in order to
be a ground for dismissal. The failure to meet the employer's qualifying standards
is in fact a ground that falls under Article 282(e) - the "other causes analogous to
the foregoing." By its nature, these "qualifying standards" are norms that apply
prior to and after an employee is hired. They apply prior to employment because
these are the standards a job applicant must initially meet in order to be hired.
They apply after hiring because an employee must continue to meet these
standards while on the job in order to keep his job. Under this perspective, a
violation is not one of the faults for which an employee can be dismissed pursuant
to pars. (a) to (d) of Article 282; the employee can be dismissed simply because
he no longer "qualifies" for his job irrespective of whether or not the failure to
qualify was willful or intentional. The court held that the obesity of petitioner,
when placed in the context of his work as flight attendant, becomes an analogous
cause under Article 282(e) of the Labor Code that justifies his dismissal from the
service. His obesity may not be unintended, but is nonetheless voluntary. As the
CA correctly puts it, voluntariness basically means that the just cause is solely
attributable to the employee without any external force influencing or controlling
his actions. This element runs through all just causes under Article 282, whether
they be in the nature of a wrongful action or omission. Gross and habitual neglect,
a recognized just cause, is considered voluntary although it lacks the element of
intent found in Article 282(a), (c), and (d).
26. John Hancock Life Insurance Co. v. Davis, (Analogous Causes)
In this case, petitioner dismissed respondent based on the NBI's finding that the
latter stole and used Yuseco's credit cards. But since the theft was not committed
against petitioner itself but against one of its employees, respondent's
misconduct was not work-related and therefore, she could not be dismissed for
serious misconduct. Nonetheless, Article 282(e) of the Labor Code talks of other
analogous causes or those which are susceptible of comparison to another in
general or in specific detail. For an employee to be validly dismissed for a cause
analogous to those enumerated in Article 282, the cause must involve a voluntary
and/or willful act or omission of the employee. A cause analogous to serious
misconduct is a voluntary and/or willful act or omission attesting to an
employee's moral depravity. Theft committed by an employee against a person
other than his employer, if proven by substantial evidence, is a cause analogous
to serious misconduct.
27. Hocgeng Phil v. Farrales, March 18, 2015
The Court held that [t]o be lawful, the cause for termination must be a serious
and grave malfeasance to justify the deprivation of a means of livelihood. This is
merely in keeping with the spirit of our Constitution and laws which lean over
backwards in favor of the working class, and mandate that every doubt must be
resolved in their favor. Moreover, the penalty imposed on the erring employee
ought to be proportionate to the offense, taking into account its nature and
surrounding circumstances. The Court agrees with the CA that Farrales
committed no serious or willful misconduct or disobedience to warrant his
dismissal. It is not disputed that Farrales lost no time in returning the helmet to
Reymar the moment he was apprised of his mistake by Eric, which proves,
according to the CA, that he was not possessed of a depravity of conduct as would
justify HPCs claimed loss of trust in him. Farrales immediately admitted his error
to the company guard and sought help to find the owner of the yellow helmet,
and this, the appellate court said, only shows that Farrales did indeed mistakenly
think that the helmet he took belonged to Eric. Theft committed by an employee
against a person other than his employer, if proven by substantial evidence, is a
cause analogous to serious misconduct. 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. The misconduct to be serious 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
employees work to constitute just cause for his separation. But where there is no
showing of a clear, valid and legal cause for termination of employment, the law
considers the case a matter of illegal dismissal. If doubts exist between the
evidence presented by the employer and that of 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.
28. Benitez v. Santa Fe Moving and Relocation Services April 20, 2015.
Display of insolent and disrespectful behavior, in utter disregard of the time and
place of its occurrence constituted a serious misconduct as defined by law.
In the case of Samson v. NLRC, the Court opined: The instant case [Samson v.
NLRC] should be distinguished from the previous cases where we held that the
use of insulting and offensive language constituted gross misconduct justifying
an employees dismissal. In De la Cruz vs. NLRC, the dismissed employee shouted
"sayang ang pagka-professional mo!" and "putang ina mo" at the company
physician when the latter refused to give him a referral slip. In Autobus Workers
Union (AWU) v. NLRC, the dismissed employee called his supervisor "gago ka"
and taunted the latter by saying "bakit anong gusto mo tang ina mo." In these
cases, the dismissed employees personally subjected their respective superiors
to the foregoing verbal abuses. The utter lack of respect for their superiors was
patent. In contrast, when petitioner was heard to have uttered the alleged
offensive words against respondent companys president and general manager,
the latter was not around.
Further, it appears that in Samson, the company was ambivalent for a while on
what to do with Samsons offense as it took several weeks after the last incident
on January 3, 1994 before it asked him to explain. Moreover, the company official
maligned merely admonished Samson during a meeting on January 4, 1994. In
contrast, the company acted swiftly, and decisively in Benitez's case, obviously
and understandably, because of the gravity and high visibility of his offense,
which not only constituted a frontal verbal, and nearly physical (the attempted
beer bottle throwing), assault against Kurangil. Needless to say, Benitez's
outburst also caused grave embarrassment for the audience who witnessed the
incident, including company officials whom he likewise maligned, as well as
company clients and guests. Under the foregoing circumstances, we are
convinced - as the Labor Arbiter, the NLRC and the CA had been - that Benitez's
offense constituted a serious misconduct as defined by law. His display of insolent
and disrespectful behavior, in utter disregard of the time and place of its
occurrence, had very much to do with his work. He set a bad example as a union
officer and as a crew leader of a vital division of the company. His actuations
during the company's Christmas Party, to our mind, could have had negative
repercussions for his employer had he been allowed to stay on the job. His
standing before those clients who witnessed the incident and those who would
hear of it would surely be diminished, to the detriment of the company.
29. St. Lukes Medical Center v. Sanchez, March 11, 2015.
Doubtless, the deliberate disregard or disobedience of rules by the employee
cannot be countenanced as it may encourage him or her to do even worse and
will render a mockery of the rules of discipline that employees are required to
observe.
Among the employers management prerogatives is the right to prescribe
reasonable rules and regulations necessary or proper for the conduct of its
business or concern, to provide certain disciplinary measures to implement said
rules and to assure that the same would be complied with. At the same time, the
employee has the corollary duty to obey all reasonable rules, orders, and
instructions of the employer; and willful or intentional disobedience thereto, as
a general rule, justifies termination of the contract of service and the dismissal of
the employee.
Note that for an employee to be validly dismissed on this ground, the employers
orders, regulations, or instructions must be: (1) reasonable and lawful, (2)
sufficiently known to the employee, and (3) in connection with the duties which
the employee has been engaged to discharge. The act of Sanchez is obviously
connected with her work, who, as a staff nurse, is tasked with the proper
stewardship of medical supplies. Significantly, records show that Sanchez made
a categorical admission in her handwritten letter i.e., [k]ahit alam kong bawal
ay nagawa kong [makapag-uwi] ng gamit that despite her knowledge of its
express prohibition under the SLMC Code of Discipline, she still knowingly
brought out the subject medical items with her. It is apt to clarify that SLMC
cannot be faulted in construing the taking of the questioned items as an act of
dishonesty (particularly, as theft, pilferage, or its attempt in any form or manner)
considering that the intent to gain may be reasonably presumed from the furtive
taking of useful property appertaining to another. Note that Section 1, Rule 1 of
the SLMC Code of Discipline is further supplemented by the company policy
requiring the turn-over of excess medical supplies/items for proper handling and
providing a restriction on taking and bringing such items out of the SLMC
premises without the proper authorization or pass from the official concerned,
which Sanchez was equally aware thereof. Nevertheless, Sanchez failed to turn-
over the questioned items and, instead, hoarded them, as purportedly practiced
by the other staff members in the Pediatric Unit. As it is clear that the company
policies subject of this case are reasonable and lawful, sufficiently known to the
employee, and evidently connected with the latters work, the Court concludes
that SLMC dismissed Sanchez for a just cause. On a related point, the Court
observes that there lies no competent basis to support the common observation
of the NLRC and the CA that the retention of excess medical supplies was a
tolerated practice among the nurses at the Pediatric Unit. While there were
previous incidents of hoarding, it appears that such acts were in similar
fashion furtively made and the items secretly kept, as any excess items found in
the concerned nurses possession would have to be confiscated. Hence, the fact
that no one was caught and/or sanctioned for transgressing the prohibition
therefor does not mean that the so-called hoarding practice was tolerated by
SLMC. Besides, whatever maybe the justification behind the violation of the
company rules regarding excess medical supplies is immaterial since it has been
established that an infraction was deliberately committed. Doubtless, the
deliberate disregard or disobedience of rules by the employee cannot be
countenanced as it may encourage him or her to do even worse and will render a
mockery of the rules of discipline that employees are required to observe.
30. Maersk-Filipinas Corp v. Vestruz, February 18, 2015
It is well-settled that the burden of proving that the termination of an employee
was for a just or authorized cause lies with the employer. If the employer fails to
meet this burden, the conclusion would be that the dismissal was unjustified and,
therefore, illegal. In order to discharge this burden, the employer must present
substantial evidence, which is defined as that amount of relevant evidence which
a reasonable mind might accept as adequate to justify a conclusion,58 and not
based on mere surmises or conjectures.
31. Waterfront Cebu City Casino Hotel v. Ledesma, March 25, 2015
Notably, Ledesma never refuted, at the administrative investigation level at
Waterfront, and even at the proceedings before the LA, NLRC, and the CA, the
allegations leveled against him by Rosanna Lofranco that, after deluding her to
perform a massage on him, Ledesma exhibited to her his penis and requested that
he be masturbated while inside the conference room of the hotel. If not for the
position of Ledesma as a House Detective, he will not have access to the
conference room nor will he know that the premises is not monitored through a
closed-circuit television,52 thus giving him the untrammeled opportunity to
accomplish his lewd design on the unsuspecting victim. Such acts of Ledesma
constituted misconduct or improper behavior53 which is a just cause for his
dismissal.
32. Mallo v. Southeast Asian College, October 14, 2015
The records readily show that as early as April 2011, respondents already
assigned Mallo a teaching load for the First Semester of SY 2011-2012 as a Clinical
Instructor for SACI students to be assigned at NCMH, which the latter accepted.
Unfortunately, Mallo failed the qualifying tests at NCMH twice, thus, virtually
disqualifying him from performing his work as SACFs Clinical Instructor thereat.
Despite these developments, respondents were able to remedy the situation,
albeit belatedly, by assigning Mallo as a Clinical Instructor at UDMC instead, as
shown in the Tentative Faculty Loading dated June 24, 2011. In view of the
foregoing, the Court is inclined to hold that respondents never dismissed Mallo
from his job. While the Court concurs with the CA that Mallo was not illegally
dismissed, the Court does not agree that he had abandoned his work.
Abandonment is the deliberate and unjustified refusal of an employee to resume
his employment. It constitutes neglect of duty and is a just cause for termination
of employment under paragraph (b) of Article 282 [now Article 296] of the Labor
Code. To constitute abandonment, however, there must be a clear and deliberate
intent to discontinue one's employment without any intention of returning. In
this regard, two elements must concur: (1) failure to report for work or absence
without valid or justifiable reason; and (2) a clear intention to sever the
employer-employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts. Otherwise stated,
absence must be accompanied by overt acts unerringly pointing to the fact that
the employee simply does not want to work anymore. It has been ruled that the
employer has the burden of proof to show a deliberate and unjustified refusal of
the employee to resume his employment without any intention of returning. In
this case, records are bereft of any indication that Mallo's absence from work was
deliberate, unjustified, and with a clear intent to sever his employment
relationship with SACI. While respondents claim to have assigned Mallo as
Clinical Instructor at UDMC after failing the qualifying tests at NCMH, which
assignment the latter initially accepted, but eventually declined, there is no proof
that Mallo was informed of such assignment. It bears stressing that a party
alleging a critical fact must support his allegation with substantial evidence for
any decision based.
33. Naguit v. San Miguel, June 22, 2015
There was a just cause for termination. The settled rule is that fighting within
company premises is a valid ground for the dismissal of an employee. Moreover,
the act of assaulting another employee is a serious misconduct which justifies the
termination of employment. As noted by both the LA and the NLRC, substantial
evidence exists to show that petitioner committed acts which are tantamount to
serious misconduct and willful disobedience of company rules and regulations.
Also, the Court agrees with respondents contention that if petitioners long years
of service would 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 rank of all
undesirable. In addition, where the totality if the evidence was sufficient to
warrant the dismissal of the employee, the law warrants their dismissal without
making any distinction between a first offender and habitual delinquent.
34. Villapando v. Cocoplans, May 30, 2016
Article 282( c) of the Labor Code provides that an employer may terminate an
employment for fraud or willful breach by the employee of the trust reposed in
him by his employer or duly authorized representative. As firmly entrenched in
our jurisprudence, loss of trust and confidence, as a just cause for termination of
employment, is premised on the fact that an employee concerned holds a position
where greater trust is placed by management and from whom greater fidelity to
duty is correspondingly expected. In the instant case, the Court does not find the
evidence presented by petitioners to be substantial enough to discharge the
burden of proving that Villapando was, indeed, dismissed for just cause. The
Court is of the view that a single Joint Affidavit of doubtful probative value can
hardly be considered as substantial. Had petitioners provided the Court with
other convincing proof, apart from said Joint Affidavit, that Villapando had,
indeed, wilfully influenced her subordinates to transfer to a competing company,
their claims of loss of confidence could have been sustained. As the Court now
sees it, petitioners terminated the services of Villapando on the mere basis of the
Joint Affidavit executed by Ms. Perez and Mr. Sandoval, which, as previously
discussed, is put in doubt by conflicting evidence. Hence, in the absence of
sufficient proof, the Court finds that petitioners failed to discharge the onus of
proving the validity of Villapando' s dismissal.
35. Universal Robina Sugar Milling Corp v. Albay, March 16, 2016
Misconduct is defined as an improper or wrong conduct. It is 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 be considered as just cause, the Court explains that the misconduct must:
1. Be serious;
2. Relate to the performance of the employees duties showing that the employee
has become unfit to continue working for the employer; and
3. Have been performed with wrongful intent.
The Court finds the third element absent in this case:
Clearly, respondents committed some form of misconduct when they assisted
Sheriff Calinawan in effecting the levy on the forklift and depositing the same to
the municipal hall for safekeeping as they operated the forklift and took it out of
company premises, all without the authority and consent from petitioner or any
of its officers. However, as correctly pointed out by the CA, respondents did not
perform the said acts with intent to gain or with wrongful intent. Rather, they
were impelled by their belief albeit misplaced that they were merely
facilitating the enforcement of a favorable decision in a labor standards case in
order to finally collect what is due them as a matter of right, which is the balance
of their unpaid benefits.
Dismissal is the ultimate penalty that can be meted to an employee. Even where
a worker has committed an infraction, a penalty less punitive may suffice,
whatever missteps maybe committed by labor ought not to be visited with a
consequence so severe.
Respondents are not entitled to the award of backwages. The award of
backwages is deleted only if the following circumstances are present:
1. The fact that the dismissal of the employee would be too harsh a penalty; and
2. That the employer was in good faith in terminating the employee.
These circumstances are found in this case. The respondents were illegally
dismissed, but URSM nevertheless terminated them in good faith, since they were
indeed guilty of some form of misconduct.
Ablay's conviction as an accomplice to the murder of petitioner's former assistant
manager had strained the relationship between Ablay and petitioner. Hence,
Ablay should not be reinstated in the company and, instead, be paid separation
pay. Albay should be granted benefits prior to his conviction. [I]t should be
clarified that said strained relation should not affect the grant of benefits in
[Albays] favor prior to his conviction, as the latter pertains to an offense entirely
separate and distinct from the acts constituting petitioner's charges against him
in the case at bar, i.e., taking of the company equipment without authority.
Petitioner's payment of separation pay to Ablay in lieu of his reinstatement is
therefore warranted.
36. Cebu Peoples Multi Purpose Coop. v. Carbonilla, January 27, 2016
All of the foregoing requisites have been duly established in this case. Records
reveal that Carbonilla, Jr.'s serious misconduct consisted of him frequently
exhibiting disrespectful and belligerent behavior, not only to his colleagues, but
also to his superiors. He even used his stature as a law graduate to insist that he
is "above" them, often using misguided legalese to weasel his way out of the
charges against him, as well as to strong-arm his colleagues and superiors into
succumbing to his arrogance.
Indisputably, Carbonilla, Jr.'s demeanor towards his colleagues and superiors is
serious in nature as it is not only reflective of defiance but also breeds of
antagonism in the work environment. Surely, within the bounds of law,
management has the rightful prerogative to take away dissidents and
undesirables from the workplace. It should not be forced to deal with difficult
personnel, especially one who occupies a position of trust and confidence, as will
be later discussed, else it be compelled to act against the best interest of its
business. Carbonilla, Jr.'s conduct is also clearly work-related as all were
incidents which sprung from the performance of his duties. Lastly, the
misconduct was performed with wrongful intent as no justifiable reason was
presented to excuse the same. On the contrary, Carbonilla, Jr. comes off as a smart
aleck who would even go to the extent of dangling whatever knowledge he had of
the law against his employer in a combative manner. As succinctly put by CPMPC,
"[e]very time [Carbonilla, Jr.'s] attention was called for some inappropriate
actions, he would always show his Book, Philippine Law Dictionary and would
ask the CEO or HRD Manager under what provision of the law he would be liable
for the complained action or omission." Irrefragably, CPMPC is justified in no
longer tolerating the grossly discourteous attitude of Carbonilla, Jr. as it
constitutes conduct unbecoming of his managerial position and a serious breach
of order and discipline in the workplace.
For another, Carbonilla, Jr.'s dismissal was also justified on the ground of loss of
trust and confidence. According to jurisprudence, loss of trust and
confidence will validate an employee's dismissal when it is shown that: (a) the
employee concerned holds a position of trust and confidence; and (b) he
performs an act that would justify such loss of trust and confidence. Records
reveal that Carbonilla, Jr. occupied a position of trust and confidence as he was
employed as Credit and Collection Manager, and later on, as Legal and Collection
Manager, tasked with the duties of, among others, handling the credit and
collection activities of the cooperative, which included recommending loan
approvals, formulating and implementing credit and collection policies, and
conducting trainings. With such responsibilities, it is fairly evident that
Carbonilla, Jr. is a managerial employee within the ambit of the first classification
of employees afore-discussed. The loss of CPMPC's trust and confidence in
Carbonilla, Jr., as imbued in that position, was later justified.
Mere existence of basis for believing that the employee has breached the trust
and confidence of the employer is sufficient and does not require proof beyond
reasonable doubt. Thus, when an employee has been guilty of breach of trust or
his employer has ample reason to distrust him, a labor tribunal cannot deny the
employer the authority to dismiss him, as in this case.
37. Visayan Electric Co. Employees v. VECO, July 22, 2015
Refusal of VECO to follow the grievance machinery procedure under Section 4,
Article XVII of the CBA in the suspension and termination from employment of
the other union officers and members does not necessarily constitute unfair labor
practice if the petitioner-union failed to satisfactorily prove the same. When the
general and specific provisions of the CBA are in conflict, the specific provision
shall govern.
It is understood that disciplinary actions imposed on employee or laborer shall
be governed by the rules and regulations promulgated by the Company as well as
those provided for by existing laws on the matter. " The Court is in accord with
the ratiocination of the NLRC that the sweeping statement "any matter affecting
Company-Union or Company-Worker relations shall be considered a grievance"
under Section 4, Article XVII is general, as opposed to Section 13, Article XIV of
the CBA, which is specific, as it precisely refers to "what governs employee
disciplinary actions." Thus, the NLRC correctly ruled that VECO acted within the
bounds of law when it proceeded with its administrative investigation of the
charges against other union officers and members.
38. Manarpiis v. Texas Phils, January 28, 2015
If the business closure is due to serious losses or financial reverses, the employer
must present sufficient proof of its actual or imminent losses; it must show proof
that the cessation of or withdrawal from business operations was bona fide in
character. A written notice to the DOLE thirty days before the intended date of
closure is also required, the purpose of which is to inform the employees of the
specific date of termination or closure of business operations, and which must be
served upon each and every employee of the company one month before the date
of effectivity to give them sufficient time to make the necessary arrangement.
the announced cessation of business operations was a subterfuge for getting rid
of petitioner. The financial statements supposedly bearing the stamp mark of BIR
were not signed by an independent auditor. Besides, the non-compliance with the
requirements under Article 283 of the Labor Code, as amended, gains relevance
in this case not for the purpose of proving the illegality of the company closure or
cessation of business, which did not materialize, butas an indication of bad faith
on the part of respondents in hastily terminating petitioners employment. Under
the circumstances, the subsequent investigation and termination of petitioner on
grounds of dishonesty, loss of confidence and abandonment of work, clearly
appears as an afterthought as it was done only after petitioner had filed an illegal
dismissal case and respondents have been summoned for hearing before the LA.
We have laid down the two elements which must concur for a valid abandonment,
viz: (1) the failure to report to work or absence without valid or justifiable reason,
and (2) a clear intention to sever the employer employee relationship, with the
second element as the more determinative factor being manifested by some overt
acts.27Abandonment as a just ground for dismissal requires the deliberate,
unjustified refusal of the employee to perform his employment responsibilities.
Mere absence or failure to work, even after notice to return, is not tantamount to
abandonment.28
Furthermore, it is well-settled that the filing by an employee of a complaint for
illegal dismissal with a prayer for reinstatement is proof enough of his desire to
return to work, thus, negating the employers charge of abandonment. 29 An
employee who takes steps to protest his dismissal cannot logically be said to have
abandoned his work.30
On the issue of loss of confidence, we have held that proof beyond reasonable
doubt is not needed to justify the loss as long as the employer has reasonable
ground to believe that the employee is responsible for the misconduct and his
participation therein renders him unworthy of the trust and confidence
demanded of his position.31Nonetheless, the right of an employer to dismiss
employees on the ground of loss of trust and confidence, however, must not be
exercised arbitrarily and without just cause. Unsupported by sufficient proof, loss
of confidence is without basis and may not be successfully invoked as a ground
for dismissal. Here, loss of confidence was belatedly raised by the respondents
who initiated an investigation on the alleged irregularities committed by
petitioner only after the latter had questioned the legality of her earlier dismissal
due to the purported company closure. As correctly observed by the NLRC,
assuming to be true that respondents had not yet actually dismissed the
petitioner, the notice of cessation of operations (memo dated July 27, 2000)
addressed to all employees never mentioned the supposed charges against the
petitioner who was also never issued a separate memorandum to that effect.
Moreover, the turn over of company properties by petitioner on the same date as
demanded by respondent Rialubin-Tan belies the latters claim that she verbally
instructed the former to continue reporting for work in view of the audit of the
companys finances. Indeed, considering the gravity of the accusations of fraud
against the petitioner, it is strange that respondents have not at least issued her
a separate memorandum on her accountability for the alleged business losses.
To prove the dishonesty imputed to petitioner, respondents submitted before the
NLRC a letter dated August 4, 2000 from one of TPIs suppliers advising the
company of a supposed double payment made in February and March 2000.
However, there is no showing that such payment was made or ordered by
petitioner, and neither was it shown that this overpayment was reflected in the
account books of TPI. Respondents likewise failed to prove their accusation that
petitioner put up a competing business while she was still employed with TPI,
and their bare allegation that petitioner divulged confidential company matters
to customers. As to the supposed failure of petitioner to account for funds
intended for "under the table" transactions at the Bureau of Customs, the same
was never raised before the labor tribunals and not a shred of evidence was
presented by respondent to prove this allegation.
39. Leus v. St. Scholastica College, January 28, 2015
Thus, the determination of whether a conduct is disgraceful or immoral involves
a two-step process: first, a consideration of the totality of the circumstances
surrounding the conduct; and second, an assessment of the said circumstances
vis--visthe prevailing norms of conduct, i.e., what the society generally considers
moral and respectable. That the petitioner was employed by a Catholic
educational institution per se does not absolutely determine whether her
pregnancy out of wedlock is disgraceful or immoral. There is still a necessity to
determine whether the petitioners pregnancy out of wedlock is considered
disgraceful or immoral in accordance with the prevailing norms of conduct.
In this case, it was not disputed that, like respondent, the father of her child was
unmarried. Therefore, respondent cannot be held liable for disgraceful and
immoral conduct simply because she gave birth to the child Christian Jeon out of
wedlock.
As stated above, when the law refers to morality, it necessarily pertains to public
and secular morality and not religious morality. Thus, the proscription against
"disgraceful or immoral conduct" under Section 94(e) of the 1992 MRPS, which
is made as a cause for dismissal, must necessarily refer to public and secular
morality. Accordingly, in order for a conduct tobe considered as disgraceful or
immoral, it must be "detrimental (or dangerous) to those conditions upon which
depend the existence and progress of human society and not because the
conduct is proscribed by the beliefs of one religion or the other."
As the Court held in Radam, there is no law which penalizes an unmarried mother
by reason of her sexual conduct or proscribes the consensual sexual activity
between two unmarried persons; that neither does such situation contravene any
fundamental state policy enshrined in the Constitution.
Admittedly, the petitioner is employed in an educational institution where the
teachings and doctrines of the Catholic Church, including that on pre-marital
sexual relations, is strictly upheld and taught to the students. That her
indiscretion, which resulted in her pregnancy out of wedlock, is anathema to the
doctrines of the Catholic Church. However, viewed against the prevailing norms
of conduct, the petitioners conduct cannot be considered as disgraceful or
immoral; such conduct is not denounced by public and secular morality. It may
be an unusual arrangement, but it certainly is not disgraceful or immoral within
the contemplation of the law.
Further, the respondents themselves have admitted that SSCW, at the time of the
controversy, does not have any policy or rule against an employee who engages
in pre-marital sexual relations and conceives a child as a result thereof. There
being no valid basis in law or even in SSCWs policy and rules, SSCWs dismissal
of the petitioner is despotic and arbitrary and, thus, not a valid exercise of
management prerogative.
40. Cadiz v. Brent Hosptial, February 24, 2016
More importantly, there must be substantial evidence to establish that
premarital sexual relations and pregnancy out of wedlock is considered
disgraceful or immoral.41
The fact that Brent is a sectarian institution does not automatically subject Cadiz
to its religious standard of morality absent an express statement in its manual of
personnel policy and regulations, prescribing such religious standard as gauge as
these regulations create the obligation on both the employee and the employer
to abide by the same.46
Brent, likewise, cannot resort to the MRPS because the Court already stressed in
Leus that "premarital sexual relations between two consenting adults who have
no impediment to marry each other, and, consequently, conceiving a child out of
wedlock, gauged from a purely public and secular view of morality, does not
amount to a disgraceful or immoral conduct under Section 94(e) of the 1992
MRPS."47
In this case, Brent imposed on Cadiz the condition that she subsequently contract
marriage with her then boyfriend for her to be reinstated. According to Brent,
this is "in consonance with the policy against encouraging illicit or common-law
relations that would subvert the sacrament of marriage."49
It becomes apparent that Brent's condition is coercive, oppressive and
discriminatory. There is no rhyme or reason for it. It forces Cadiz to marry for
economic reasons and deprives her of the freedom to choose her status, which is
a privilege that inheres in her as an intangible and inalienable right. 53 While a
marriage or no-marriage qualification may be justified as a "bona fide
occupational qualification," Brent must prove two factors necessitating its
imposition, viz: (1) that the employment qualification is reasonably related to
the essential operation of the job involved; and (2) that there is a factual basis
for believing that all or substantially all persons meeting the qualification would
be unable to properly perform the duties of the job. 54 Brent has not shown the
presence of neither of these factors. Perforce, the Court cannot uphold the
validity of said condition.
41. Venzon v. ZAMECO II Electric Cooperative, Nov. 9, 2015
Loss of trust and confidence to be a valid cause for dismissal must be work related
such as would show the employee concerned to be unfit to continue working for
the employer and it must be based on a willful breach of trust and founded on
clearly established facts. Such breach is willful if it is done intentionally,
knowingly, and purposely, without justifiable excuse as distinguished from an act
done carelessly, thoughtlessly, heedlessly or inadvertently. The loss of trust and
confidence must spring from the voluntary or willful act of the employee, or by
reason of some blameworthy act or omission on the part of the
employee.65chanrobleslaw
There are two classes o f positions of trust. First, are the managerial employees
whose primary duty consists of the management of the establishment in which
they are employed or of a department or a subdivision thereof, and to other
officers or members of the managerial staff. The second class consists of the
fiduciary rank-and-file employees, such as cashiers, auditors, property
custodians, or those who, in the normal exercise of their functions, regularly
handle significant amounts of money or property. These employees, though rank-
and-file, are routinely charged with the care and custody of the employer's money
or property, and are thus classified as occupying positions of trust and
confidence.67chanrobleslaw
It is undisputed that at the time of their dismissal, the petitioners Gutierrez, Jr.
and Venson were holding managerial positions and greater fidelity and trust
were expected of them.68 Farrales even designated petitioner Gutierrez, Jr. as
Officer-in-Charge of ZAMECO II during his official travel to Manila. Their positions
were unmistakably imbued with trust and confidence as they were charged with
the delicate task of overseeing the operations of their divisions. As managers, a
high degree of honesty and responsibility, as compared with ordinary rank-and-
file employees, were required and expected of them.
It need not be stressed that the nature or extent of the penalty imposed on an
erring employee must be commensurate to the gravity of the offense as weighed
against the degree of responsibility and trust expected of the employee's position.
42. Maula v. Ximex Delivery Express, January 25, 2017
Dismissal from employment have two facets: first, the legality of the act of
dismissal, which constitutes substantive due process; and, second, the legality of
the manner of dismissal, which constitutes procedural due process.
While this Court held in past decisions that accusatory and inflammatory
language used by an employee to the employer or superior can be a ground for
dismissal or termination,27 the circumstances peculiar to this case find the
previous rulings inapplicable. The admittedly insulting and unbecoming
language uttered by petitioner to the HR Manager on April 3, 2009 should be
viewed with reasonable leniency in light of the fact that it was committed under
an emotionally charged state. We agree with the labor arbiter and the NLRC that
the on-the-spur-of-the-moment outburst of petitioner, he having reached his
breaking point, was due to what he perceived as successive retaliatory and
orchestrated actions of respondent. Indeed, there was only lapse in judgment
rather than a premeditated defiance of authority.
Further, petitioner's purported "thug-like" demeanor is not serious in nature.
Despite the "grave embarassment" supposedly caused on Gorospe, she did not
even take any separate action independent of the company. Likewise, respondent
did not elaborate exactly how and to what extent that its "nature of business" and
"industrial peace" were damaged by petitioner's misconduct. It was not shown in
detail that he has become unfit to continue working for the company and that the
continuance of his services is patently inimical to respondent's interest.
Even if a just cause exists, the employer still has the discretion whether to dismiss
the employee, impose a lighter penalty, or condone the offense committed.
Respondent cannot invoke the principle of totality of infractions considering that
petitioner's alleged previous acts of misconduct were not established in
accordance with the requirements of procedural due process. In fact, respondent
conceded that he "was not even censured for any infraction in the past."
This Court finds the penalty of dismissal too harsh. Not every case of
insubordination or willful disobedience by an employee reasonably deserves the
penalty of dismissal because the penalty to be imposed on an erring employee
must be commensurate with the gravity of his or her offense.32Petitioner's
termination from employment is also inappropriate considering that he had been
with respondent company for seven (7) years and he had no previous derogatory
record. It is settled that notwithstanding the existence of a just cause, dismissal
should not be imposed, as it is too severe a penalty, if the employee had been
employed for a considerable length of time in the service of his or her employer,
and such employment is untainted by any kind of dishonesty and irregularity.
Preventive suspension may be legally imposed against an employee whose
alleged violation is the subject of an investigation. The purpose of suspension is
to prevent harm or injury to the company as well as to fellow employees.
As succinctly stated above, preventive suspension is justified where the
employee's continued employment poses a serious and imminent threat to the
life or property of the employer or of the employee's co-workers. Without this
kind of threat, preventive suspension is not proper.44 Here, it cannot be said that
petitioner posed a danger on the lives of the officers or employees of respondent
or their properties. Being one of the Operation Staff, which was a rank and file
position, he could not and would not be able to sabotage the operations of
respondent. The difficulty of finding a logical and reasonable connection between
his assigned tasks and the necessity of his preventive suspension is apparent
from the fact that even respondent was not able to present concrete evidence to
support its general allegation.
Article 283
1. SPI Technologies Inc. v. Mapua, April 7, 2014
The Court remains steadfast on its stand that the determination of the continuing
necessity of a particular officer or position in a business corporation is a
management prerogative, and the courts will not interfere unless arbitrary or
malicious action on the part of management is shown. Indeed, an employer has
no legal obligation to keep more employees than are necessary for the operation
of its business. "Management prerogative" are not magic words uttered by an
employer to bring him to a realm where our labor laws cannot reach.
Expounding on the above requirements of written notice and separation pay, this
Court in Asian Alcohol Corporation v. NLRC pronounced that for a valid
implementation of a redundancy program, the employer must comply with the
following requisites: (1) written notice served on both the employee and the
DOLE at least one month prior to the intended date of termination; (2) payment
of separation pay equivalent to at least one month pay or at least one month pay
for every year of service, whichever is higher; (3) good faith in abolishing the
redundant position; and (4) fair and reasonable criteria in ascertaining what
positions are to be declared redundant.
On the issue of the validity of the redundancy program, the memorandum made
no mention that the position of the Corporate Development Manager or any other
position would be abolished or deemed redundant. Even if we disregard Mapuas
affidavit as regards the Prime Manpower advertisement, SPI admitted that it
caused the Inquirer advertisement for a Marketing Communications Manager
position. Even if we disregard Mapuas affidavit as regards the Prime Manpower
advertisement, SPI admitted that it caused the Inquirer advertisement for a
Marketing Communications Manager position.
Furthermore, on the assumption that the functions of a Marketing
Communications Manager are different from that of a Corporate Development
Manager, it was not even discussed why Mapua was not considered for the
position. While SPI had no legal duty to hire Mapua as a Marketing
Communications Manager, it could have clarified why she is not qualified for that
position. In fact, Mapua brought up the subject of transfer to Villanueva and Raina
several times prior to her termination but to no avail. There was even no showing
that Mapua could not perform the duties of a Marketing Communications
Manager. It is not the job title but the actual work that the employee performs."
Also, change in the job title is not synonymous to a change in the functions. A
position cannot be abolished by a mere change of job title. In cases of redundancy,
the management should adduce evidence and prove that a position which was
created in place of a previous one should pertain to functions which are dissimilar
and incongruous to the abolished office.
2. Arabit v. Jardine Pacific Finance Inc., April 2, 2014
Redundancy exists where the services of an employee are in excess of what is
reasonably demanded by the actual requirements of the enterprise. A position is
redundant where it is superfluous, and superfluity of a position or positions may
be the outcome of a number of factors, such as over hiring of workers, decreased
volume of business, or dropping of a particular product line or service activity
previously manufactured or undertaken by the enterprise.
Retrenchment, on the other hand, is used interchangeably with the term "lay-off."
It is the termination of employment initiated by the employer through no fault of
the employees and without prejudice to the latter, resorted to by management
during periods of business recession, industrial depression, or seasonal
fluctuations, or during lulls occasioned by lack of orders, shortage of materials,
conversion of the plant for a new production program or the introduction of new
methods or more efficient machinery, or of automation. Simply put, it is an act of
the employer of dismissing employees because of losses in the operation of a
business, lack of work, and considerable reduction on the volume of his business,
a right consistently recognized and affirmed by this Court.
From this perspective, it is illogical for Jardine to terminate the petitioners
employment and replace them with contractual employees. The replacement
effectively belies Jardines claim that the petitioners positions were abolished
due to superfluity. To dismiss the petitioners and hire new contractual
employees as replacements necessarily give rise to the sound conclusion that the
petitioners services have not really become in excess of what Jardines business
requires. To replace the petitioners who were all regular employees with
contractual ones would amount to a violation of their right to security of tenure.
This Court laid down the principle that the employer must use fair and
reasonable criteria in the selection of employees who will be dismissed from
employment due to redundancy. Such fair and reasonable criteria may include
the following, but are not limited to: (a) less preferred status (e.g. temporary
employee); (b) efficiency; and (c) seniority. The presence of these criteria used
by the employer shows good faith on its part and is evidence that the
implementation of redundancy was painstakingly done by the employer in order
to properly justify the termination from the service of its employees.
3. Phil. Carpet Manufacturing Corp. b. Tagyamon et. al,
Under the doctrine of stare decisis, when a court has laid down a principle of law
as applicable to a certain state of facts, it will adhere to that principle and apply
it to all future cases in which the facts are substantially the same, even though the
parties may be different. Respondents failed to adduce clear and convincing
evidence to prove the confluence of the essential requisites for a valid
retrenchment of its employees. We believe that respondents acted in bad faith
in terminating the employment of the members of petitioner Union.
If respondent Corporation were to be believed that it had to retrench employees
due to the debilitating slump in demand for its products resulting in severe
losses, how could it justify the purchase of P20,000,000.00 worth of machinery
and equipment? There is likewise no justification for the hiring of more than 100
new employees, more than the number of those who were retrenched, as well as
the order authorizing full blast overtime work for six hours daily. All these are
inconsistent with the intransigent claim that respondent Corporation was
impelled to retrench its employees precisely because of low demand for its
products and other external causes.
Moreover, respondent Corporation failed to exhaust all other means to avoid
further losses without retrenching its employees, such as utilizing the latter's
respective forced vacation leaves. Respondents also failed to use fair and
reasonable criteria in implementing the retrenchment program, and instead
chose to retrench 77 of the members of petitioner out of the dismissed 88
employees. Worse, respondent Corporation hired new employees and even
rehired the others who had been "retrenched."
Respondents failed to prove that there was a drastic or severe decrease in
the product sales or that it suffered severe business losses within an interval
of three (3) months from January 2004 to March 9, 2004 when Diaz issued said
Memorandum.
Retrenchment effected by respondent Corporation is invalid due to a
substantive defect, non-compliance with the substantial requirements to
effect a valid retrenchment; it necessarily follows that the termination of
the employment of petitioner Union's members on such ground is, likewise,
illegal.
REQUISITES FOR VALID RETRENCHMENT:
1. that the retrenchment is reasonably necessary and likely to prevent
business losses which, if already incurred, are not merely de minimis,
but substantial, serious, actual and real, or if only expected, are
reasonably imminent as perceived objectively and in good faith by the
employer;
2. That the employer served written notice both to the employees and to the
Department of Labor and Employment at least one month prior to the
intended date of retrenchment;
3. that the employer pays the retrenched employees separation pay
equivalent to one month pay or at least - month pay for every year of
service, whichever is higher;
4. that the employer exercises its prerogative to retrench employees in good
faith for the advancement of its interest and not to defeat or circumvent
the employees' right to security of tenure;
5. That the employer used fair and reasonable criteria in ascertaining who
would be dismissed and who would be retained among the employees
4. Sanoh Fulton Phil. v. Bernard, August 14, 2013
Retrenchment to prevent losses and closure not due to serious business losses
are two separate authorized causes for terminating the services of an employee.
Closure of business as an authorized cause for termination of employment aims
to prevent further financial drain upon an employer who cannot pay anymore his
employees since business has already stopped. On the other hand, retrenchment
is reduction of personnel usually due to poor financial returns so as to cut down
on costs of operations in terms of salaries and wages to prevent bankruptcy of
the company.
On the other hand, the law authorizes termination of employment due to business
closure, regardless of the underlying reasons and motivations therefor. However,
the closure/cessation of business must be bona fide, i.e., its purpose is to advance
the interest of the employer and not to defeat or circumvent the rights of
employees under the law or a valid agreement.
The employer must prove, among others, that the losses are substantial and that
the retrenchment is reasonably necessary to avert such losses. In this case, there
was no valid retrenchment. Nor was there a closure of business.
The lull caused by lack of orders or shortage of materials must be of such nature
as would severely affect the continued business operations of the employer to the
detriment of all and sundry if not properly addressed.
Respondents disclose that this department had gone full blast in its operations,
even with substantial overtime operations immediately after their dismissal was
effected. Moreover, respondents assert that Sanoh still hired employees after the
so-called retrenchment.
5. Andrada et. al. v. NLRC December 28, 2007
Retrenchment is an exercise of managements prerogative to terminate the
employment of its employees en masse, to either minimize or prevent losses, or
when the company is about to close or cease operations for causes not due to
business losses. In the present case, Legend glaringly failed to show its financial
condition prior to and at the time it enforced its retrenchment program. It failed
to submit audited financial statements regarding its alleged financial losses.
Though Legend complied with the notice requirements and the payment of
separation benefits to the retrenched employees, its failure to establish the basis
for the retrenchment of its employees constrained the Court to declare the
retrenchment illegal.
6. Culili v. Eastern Telecommunication Philippines
There is redundancy when the service capability of the workforce is greater than
what is reasonably required to meet the demands of the business enterprise. This
Court has been consistent in holding that the determination of whether or not an
employees services are still needed or sustainable properly belongs to the
employer. Provided there is no violation of law or a showing that the employer
was prompted by an arbitrary or malicious act, the soundness or wisdom of this
exercise of business judgment is not subject to the discretionary review of the
Labor Arbiter and the NLRC.
However, an employer cannot simply declare that it has become overmanned and
dismiss its employees without producing adequate proof to sustain its claim of
redundancy. Among the requisites of a valid redundancy program are: (1) the
good faith of the employer in abolishing the redundant position; and (2) fair and
reasonable criteria in ascertaining what positions are to be declared redundant,
such as but not limited to: preferred status, efficiency, and seniority. This Court
also held that the following evidence may be proffered to substantiate
redundancy: the new staffing pattern, feasibility studies/ proposal on the
viability of the newly created positions, job description and the approval by the
management of the restructuring. It is inconceivable that ETPI would effect a
company-wide reorganization of this scale for the mere purpose of singling out
Culili and terminating him. If Culilis position were indeed indispensable to ETPI,
then it would be absurd for ETPI, which was then trying to save its operations, to
abolish that one position which it needed the most. Contrary to Culilis assertions
that ETPI could not do away with his functions as long as it is in the
telecommunications industry, ETPI did not abolish the functions performed by
Culili as a Senior Technician. What ETPI did was to abolish the position itself for
being too specialized and limited. The functions of that position were then added
to another employee whose functions were broad enough to absorb the tasks of
a Senior Technician. As for the award of moral and exemplary damages in illegal
dismissal cases, moral damages are awarded only where the dismissal was
attended by bad faith or fraud, or constituted an act oppressive to labor, or was
done in a manner contrary to morals, good customs or public policy. Exemplary
damages may avail if the dismissal was effected in a wanton, oppressive or
malevolent manner to warrant an award for exemplary damages.
7. Asufrin v. San Miguel Corporation, March 10, 2004
The determination that employees services are no longer necessary or
sustainable and, therefore, properly terminable is an exercise of business
judgment of the employer.
In other words, it is not enough for a company to merely declare that it has
become overmanned. It must produce adequate proof that such is the actual
situation to justify the dismissal of the affected employees for redundancy.
Furthermore, as correctly observed by the NLRC, respondent has not shown
how the cessation of operations of the Sum-ag Sales Office contributed to the
ways and means of improving effectiveness of the organization with the end in
view of efficiency and cutting distribution overhead and other related costs.
Respondent, thus, clearly resorted to sweeping generalization[s] in dismissing
complainant. Indeed, petitioners predicament may have something to do with
an incident where he incurred the ire of an immediate superior in the Sales
Logistics Unit for exposing certain irregularities committed by the latter.
8. Ocean East Agency Corp v. Lopez, October 14, 2015
Even if a business is doing well, an employer can still validly dismiss an employee
from the service due to redundancy if that employee's position has already
become in excess of what the employer's enterprise requires.
Conversely, the absence of criteria in the selection of an employee to be dismissed
and the erroneous implementation of the criterion selected, both render invalid
the redundancy because both have the ultimate effect of illegally dismissing an
employee.
As they have the burden of proving the existence of an authorized cause,
petitioners should have presented the company's audited financial statements
before the Labor Arbiter who is in the position to evaluate evidence.
Anent petitioners' claims that Ocean East continued to suffer losses despite the
implementation of its right-sizing plan, and that it was unable to replace its two
other employees who resigned after Lopez' termination, the Court agrees with
the CA in rejecting the documentary evidence submitted to support such
claims, i.e., the resignation letters of Hing, a Documentation Clerk, and one Emma
Jaballos, a bookkeeper. Clearly, the said resignation letters cannot be considered
as relevant evidence that a reasonable mind might accept as adequate to support
a conclusion as to Ocean East's claimed losses and its employees.
9. Blue Eagle v. Naval, April 19, 2016
Resignation is inconsistent with the filing of the complaint for illegal dismissal.
However, the employee's filing of the complaint for illegal dismissal by itself is
not sufficient to disprove that said employee voluntarily resigned. There must be
other attendant circumstances and/or submitted evidence which would raise a
cloud of doubt as to the voluntariness of the resignation.
It is true that this Court has generally held that quitclaims and releases are
contrary to public policy and therefore, void. Nonetheless, voluntary agreements
that represent a reasonable settlement are binding on the parties and should not
later be disowned. It is only where there is clear proof that the waiver was
wangled from an unsuspecting or gullible person, or the terms of the settlement
are unconscionable, that the law will step in to bail out the employee. While it is
our duty to prevent the exploitation of employees, it also behooves us to protect
the sanctity of contracts that do not contravene our laws.
10. PNCC Skyway v. Sec of Labor, April 19, 2016
The required written notice under Article 283 of the Labor Code is to inform the
employees of the specific date of termination or closure of business operations,
and must be served upon them at least one (1) month before the date of
effectivity to give them sufficient time to make the necessary arrangements.[11]
The purpose of this requirement is to give employees time to prepare for the
eventual loss of their jobs, as well as to give DOLE the opportunity to ascertain
the veracity of the alleged cause of termination. Thus, considering that the notices
of termination were given merely three (3) days before the cessation of the PSC's
operation, it defeats the very purpose of the required notice and the mandate of
Article 283 of the Labor Code.
In the determination of the amount of nominal damages which is addressed to
the sound discretion of the court, several factors are taken into account: (1) the
authorized cause invoked, whether it was a retrenchment or a closure or
cessation of operation of the establishment due to serious business losses or
financial reverses or otherwise; (2) the number of employees to be awarded; (3)
the capacity of the employers to satisfy the awards, taken into account their
prevailing financial status as borne by the records; (4) the employer's grant of
other termination benefits in favor of the employees; and (5) whether there was
a bona fide attempt to comply with the notice requirements as opposed to giving
no notice at all.
11. GJT Rebuiders Machine Shop v. Ambos, January 28, 2015
The decision to close ones business is a management prerogative that courts
cannot interfere with. Employers can "lawfully close shop at anytime,"even for
reasons of their own. "Just as no law forces anyone to go into business, no law can
compel anybody to continue in it."
However, despite this management prerogative, employers closing their
businesses must pay the affected workers separation pay equivalent to one-
month pay or to at least one-half-month pay for every year of service, whichever
is higher. The reason is that an employee dismissed, even for an authorized cause,
loses his or her means of livelihood.
The only time employers are not compelled to pay separation pay is when they
closed their establishments or undertaking due to serious business losses or
financial reverses.
Serious business losses are substantial losses, not de minimis. "Losses" means
that the business must have operated at a loss for a period of time for the
employer "to [have] perceived objectively and in good faith"44 that the business
financial standing is unlikely to improve in the future.
We find the two-year period covered by the financial statement insufficient for
G.J.T. Rebuilders to have objectively perceived that the business would not
recover from the loss.
Notice of the eventual closure of establishment is a "personal right of the
employee to be personally informed of his [or her] proposed dismissal as well as
the reasons therefor." The reason for this requirement is to "give the employee
some time to prepare for the eventual loss of his [or her] job."
G.J.T. Rebuilders allegedly "conferred with all [of its employees] of [its] intention
to cease business operations" one month before closing its business. "Conferring
with employees" is not the notice required under Article 283 of the Labor Code.
The law requires a written notice of closure served on the affected employees. As
to when the written notice should be served on the Department of Labor and
Employment, the law requires that it be served at least one month before the
intended date of closure.
12. Manggagawa Komunikasyon sa Pilipinas v. PLDT
Guided by the foregoing jurisprudence, it is evident that PLDT discharged the
burden of proving that the declaration or implementation of redundancy
measures have basis. For one, PLDT experienced a decline of subscribers, long
distance calls, operated both local and abroad, has declined, landline or fixed line
services also declined. This decrease of the need of PLDT services resulted from
the advent of wireless telephone, of texting as means of communication, the use
of direct dialing including prepaid telesulit and teletipid measures introduced in
the communication services. For another, PLDT has a debt burden of P70 billion
pesos and it cannot subsidize the salaries of employees whose positions are
redundant.
Philippine Long Distance Telephone Companys declaration of redundancy was
backed by substantial evidence showing a consistent decline for operator-
assisted calls for both local and international calls because of cheaper
alternatives like direct dialing services, and the growth of wireless
communication. Thus, the National Labor Relations Commission did not commit
grave abuse of discretion when it upheld the validity of PLDTs redundancy
program.
Retirement benefits, where not mandated by law, may be granted by agreement
of the employees and their employer or as a voluntary act on the part of the
employer. Retirement benefits are intended to help the employee enjoy the
remaining years of his life, lessening the burden of worrying for his financial
support, and are a form of reward for his loyalty and service to the employer
.Separation pay brought about by redundancy is a statutory right, and it is
irrelevant that the retirement benefits together with the separation pay given to
the terminated workers resulted in a total amount that appeared to be more than
what is required by the law. The facts show that instead of the legally required
one (1) month salary for every year of service rendered, the terminated workers
who were with Philippine Long Distance Telephone Company for more than 15
years received a separation pay of only 75% of their basic pay for every year of
service, despite the clear wording of the law.
13. PNCC Skyway Corp. v. Sec of Labor, February 6, 2016
In the determination of the amount of nominal damages which is addressed to
the sound discretion of the court, several factors are taken into account: (1) the
authorized cause invoked, whether it was a retrenchment or a closure or
cessation of operation of the establishment due to serious business losses or
financial reverses or otherwise; (2) the number of employees to be awarded; (3)
the capacity of the employers to satisfy the awards, taken into account their
prevailing financial status as borne by the records; (4) the employer's grant of
other termination benefits in favor of the employees; and (5) whether there was
a bona fide attempt to comply with the notice requirements as opposed to giving
no notice at all.16