- August 24, 2009
- Posted by: Atty. James Biron
- Category: Labor
What shall an employer do when his employees violated a serious rule or regulation in the workplace? What if an employee refuses to follow a lawful order of his employer? Does the employer have the right to dismiss his employee?
The answers to this predicaments lie in Article 282 of the Labor Code. This section provides what is known as the “Just Causes” for termination of employment. This is different from the “Authorized Causes” for termination of employment as explained earlier in another article.
What does Article 282 provide regarding the termination by the employer of an employee?
Art. 282 TERMINATION BY EMPLOYER. – An employer may terminate an employee for any of the following causes.
(a) Serious Misconduct or Willful Disobedience by the employer of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual Neglect by the employee of his duties
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a Crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.
What is meant by Serious Misconduct?
Misconduct 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.
This misconduct to be serious must be of such grave and aggravated character and not merely trivial or unimportant. This conduct however must be in connection with the work of the employee to constitute a just cause for his separation.
What are examples of Serious Misconduct?
Sexual harassment is an example of this and so is falsification of time card.
What is meant by Willful Disobedience?
It means a refusal to obey an order, regulation or instruction of the employer to the representative.
Does this mean that an employee must obey all and any order made by his employer or superior?
No. An employee has a right not to obey an order that is not reasonable and lawful. For example if an employee is ordered by the employer to bribe a certain public official, he or she may refuse to follow such order because giving bribe money is illegal. An employee is also allowed not to follow an order which is not sufficiently known to him and also when the order is not in connection with the duties which the employee has been engaged to discharge. For example an employee who is an accountant may refuse to follow an order from his superior to clean the window on the 20th floor of their building because that is not his duty or that it is beyond his duty.
Can an employee refuse a transfer order made by his employer?
An employee should, as a rule, obey an employer’s order transferring him from one job assignment, or one location, to another. Inconvenience to the employee does not justify disobedience to the transfer order. But this rule presupposes that the transfer order itself is lawful and reasonable.
What is mean by Neglect of Duties?
It means the absence of the diligence that an ordinary prudent man would use in his own affairs. An example of Neglect of Duty is abandonment of a job. To constitute abandonment two elements must be present: (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.
Is mere absence considered as Neglect of Duty?
No. (Labor et al, September 14, 1995)
What is meant by Fraud?
It means any act, omission, or concealment which involves a breach of legal duty, trust or confidence justly reposed and is injurious to another. The fraud must be committed against the employer or representative and in connection with the employee’s work.
For example, if an employee defrauded a co-employee, this is not considered “fraud” within the meaning of Article 282 of the Labor Code to constitute a ground for the dismissal of an employee because it is not committed against an employee or a representative. Another example is when an employee defrauded his employer in a mahjong game, again this is not “fraud” in the context of Article 282 of the Labor Code because the playing of mahjong is not in connection with the employee’s work.
When is the Commission of a Crime considered as a ground for termination of employment?
When the crime is committed against the employer or any immediate member of the employer’s family. The immediate members are limited to the spouse, ascendants (like grandparents), descendants (like grandchildren), 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.
What are these so-called Analogous Causes?
This depends on the circumstances of each case. But to be included under this category, a cause must be due to the voluntary and / or willful act or omission of the employee.