ART. 297.

TERMINATION BY EMPLOYER
An employer may terminate an employment for any of the following causes:
(a) xxxx
(b) xxxx
(c) xxxx
(d) Commission of a crime or offense by the employee against the person of his employer or
any immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the following.

JUST CAUSE: COMMISION OF A CRIME OR OFFENSE

Another just cause of terminating an employment is the employee’s commission of a
crime or offense against the person of his employer or against any immediate member of the
employer’s family.
The immediate members of the family referred to are limited to spouse, ascendants,
descendants, or legitimate, natural, or adopted brothers or sisters of the employer or of his
relative by affinity in the same degrees, and those by consanguinity within the fourth civil degree.
Conviction or Prosecution Not Required
The conviction of an employee in a criminal case is not indispensable to warrant his
dismissal by his employer. The fact that a criminal complaint against the employee has been
dropped by the city fiscal is not binding and conclusive upon the labor tribunal.
An employer may dismiss an employee for breach of trust in the handling of funds in spite
of his having been acquitted in the course of criminal prosecution. Conviction for a crime
involving the loss of such funds is not necessary before the employee may be dismissed. There is
more reason for dismissal where the acts of misconduct and willful breach of trust are repeatedly
committed by an employee.
An employee who has been exonerated from a criminal charge of theft of gasoline on the
basis of technically may still be dismissed from employment if the employer has ample reason to
mistrust him. If acquittal from the criminal charge does not negate the existence of a ground for
loss of trust and confidence, with more reason should conviction for such criminal charge fortify
said mistrust.
ANALOGOUS CAUSES
The determination of whether the cause for terminating employment is analogous to any
of those enumerated in article 296 of the Code will depend on the circumstances of each case.
To be considered analogous to the just causes enumerated, however, a cause must be
due to the voluntary and/ or willful act or omission of the employee.
In one case, the employer (Violago Trucks) could not continue the employment of four of
the complainant employees because Petrophil had prohibited them from entering Petrophil’s
premises as they were suspected of illegally diverting gasoline. This is an example of “analogous
cause “as a just cause of dismissal.
Similarly, the refusal of the employer (Marquez, Inc.) to allow an employee to drive cargo
truck due to the van imposed against the employee by San Miguel Corporation to enter Coca-
Cola plant premises who had found the employee guilty of theft of empty coke bottles, is valid.
Theft committed by an employee against another employee (not against the employee)
is not work-related, hence, not serious misconduct under Article 296(a). but it maybe considered
an “Analogous cause” under the same Article. A cause analogous to serious misconduct is a
voluntary and/ or willful act or omission attesting to an employee’s moral depravity. The theft if
proven by substantial evidence, is analogous to serious misconduct.
Must the Analogous Causes be Anticipated in Company Regulation?
D.O. No. 147-15 (September 7, 2015) amends the implementing rules and regulation of book VI.
We take particular note of the last sentence in Section 5.2(g). It states:
No act or omission shall be considered as analogous cause unless expressly specified in
the company rules and regulation or policies.
Is this a just and valid administrative rule? Can anyone figure out in advance all against all
analogous cases and write them down in company regulations?
Agpalo’s Statutory Constructive (p.42) reminds us, citing court rulings, the administrative
rules (such as the department order) are meant “for the sole purpose of carrying into effect the
general provision of law.” Nowhere does the Labor Code require analogous acts or omissions to
be “expressly specified in company regulation or policies.” Administrative regulations,
jurisprudence says, cannot extend or restrict the statute it implements.
Moreover, the requirement appears unreasonable, if not impossible. By requiring written
(express) specification in company policies, D.O. No. 147-15 negated the character of
“analogous” causes and the reason the law is so couched. Something analogous is similar or
comparable to the original or the standard. To demand an express specification of all analogous
causes is to demand anticipation of all things similar. But these cannot all be preconceived or
predefined. Yet, that is what the IRR wants: to put in writing all incidents or causes that are
analogous to those mentioned in Article 297. It demands some extraordinary imaginative
prowess – something the law does not require because it borders on the impossible.