431

Villamor Golf Club v. Pehid

472 SCRA 36
Dishonesty

FACTS
Rodolfo F. Pehid was employed by the Villamor Golf Club (VGC)
as an attendant in the mens locker room, and, thereafter, he became the
Supervisor-in-Charge. His subordinates included Juanito Superal, Jr.,
Patricio Parilla, Ricardo Mendoza, Cesar Velasquez, Vicente Casabon,
Pepito Buenaventura and Carlito Modelo.
They agreed to establish a common fund from the tips they
received from the customers, guests and members of the club for their
mutual needs and benefits. Each member was to contribute the amount of
P100.00 daily and by October 1998, it had reached the aggregate amount
of P17,990. This agreement, however, was not known to the VGC
management.
Upon audit of the Locker Room Section, it was reported that there
was an undeclared and unrecorded aggregate amount of P17,990.00 for
the fund and that there was no record that the money had been distributed
among those employed in the locker room. In the meantime, an
administrative complaint was filed by Pehids subordinates charging him
with misappropriating the P17,990.00.
Management ultimately dismissed Pehid for gross misconduct in
the performance of his duties and for acts of dishonesty that caused
prejudice to the club after his submission of a verified explanation denying
the claims filed against him.
Pehid filed a complaint for illegal dismissal, unfair labor practice,
separation pay/retirement benefits, damages and attorneys fees against
petitioners VGC and/or Brig. Gen. Filamer Artajo (Ret. AFP), Col. Ruben
Estepa, Lt. Milagros Aguillon, and the VGC Administrative Board of Inquiry.
Labor arbiter ruled in favor of Pehid declaring that the acts
attributed to Pehid were not committed in connection with his work as
officer-in-charge of the locker room. NLRC reversed the decision of the
Labor Arbiter stating that he was legally dismissed for loss of trust and
confidence. On appeal, CA reinstated the decision of the Labor Arbiter

ISSUE
Whether or not there was Pehid, in allegedly misappropriating the funds
constitutes gross misconduct, which is an act of dishonesty in violation of
the Rules of Conduct of the club that caused prejudice to the VGC?

RULING
NO. The voluntary contribution by the locker personnel amongst
themselves to a mutual fund for their own personal benefit in times of need
is not in any way connected with the work of the locker boys and the
complainant. If ever there was misappropriation or loss of the said mutual
fund, the respondent will not and cannot be in any way tend or cause to
prejudice the club. Under VGC rule, the dishonesty of an employee to be
a valid cause for dismissal must relate to or involve the misappropriation or
malversation of the club funds, or cause or tend to cause prejudice to
VGC. The substantial evidence on record indicates that the P17,990.00,
which was accumulated from a portion of the tips given by the golfers from
May 1998 to October 1998 and was allegedly misappropriated by the
respondent as the purported custodian thereof, did not belong to VGC but
to the forced savings of its locker room personnel.
Company policies and regulations are, unless shown to be grossly
oppressive or contrary to law, generally valid and binding and must be
complied with by the parties unless finally revised or amended, unilaterally
or preferably through negotiation. However, while an employee may be
validly dismissed for violation of a reasonable rule or regulation adopted
for the conduct of the companys business, an act allegedly in breach
thereof must clearly and convincingly fall within the express intendment of
such order.









432
San Miguel Corp. v. NLRC
174 SCRA 510
Dishonesty

FACTS
Private respondents (Delen, Mercado, Misolas, Logan and
Querubin) were former security guards of the petitioner, which dismissed
them for falsification of their time cards. They made false entries in their
time cards showing that they reported for work on February 19 and 20,
1983 when the truth was that they went on a hunting tap to San Juan,
Batangas, with their chief Major Martin Asaytuno, then head of the
Administrative Services Department of the Security Directorate of the
petitioner.
Besides the falsification of the entries for February 19 and 20,
1983 in their time cards, complainant Misolas was caught redhanded by
Security Guard Romeo Martin at 7:45 A.M. on March 2, 1983 punching in
not only his own time card but also the time cards of Delen and Querubin
(p. 51, Rollo). Seeing Misolas in a tight fix, Querubin rushed to the bundy
clock and punched in a time card (which turned out to be the card of one
Rodrigo de Castro) to save Misolas and to make it appear to Martin that he
(Querubin), punched in his own time card. Private respondents filed a
complaint for illegal dismissal.
The Labor Arbiter found that the complainants did go on a hunting
trip, upon the invitation of their department head, Major Asaytuno. They
went along to please him because they believed that his invitation was
equivalent to a command. Being an army man, Asaytuno expected "total
obedience" from his subordinates. When they reported for work on
February 21, 1983, Major Asaytuno asked for their time cards and initialed
the false entries showing that they reported for work on February 19-20.
The Labor Arbiter held that under those circumstances 'the dismissal of
the complainants cannot be sustained." and directed the company "to
reinstate the complainants to their respective former positions without loss
of seniority rights and with full back wages and other benefits appurtenant
to their respective positions." NLRC, on appeal by petitioner dismissed
said appeal for lack of merit.
Petitioner filed a motion for reconsideration in the Supreme Court
but was dismissed with the impression that the petitioner relieved
Asaytuno from the offense while his subordinates were punished. Upon
the second motion though, the Court now grants to resolve the case.

ISSUE
Whether or not private respondents actions on February 19-20 constitute
dishonesty, which is cause for their legal dismissal?

RULING
YES. Although it may be conceded that the private respondents
acted under some degree of moral compulsion when they agreed to
accompany Major Asaytuno on a hunting trip to San Juan, Batangas, they
were certainly under no compulsion from him to falsify their time cards and
thereby defraud the company by collecting wages for the dates when they
did not report for work.
In order to be exempted (on the ground of obedience) it must be
shown that both the person who gives the order and the person who
executes it are acting within the limitations prescribed by law.
The falsification and fraud which the private respondents
committed against their employer were inexcusable. Major Asaytuno's
initials on the false entries in their time cards did not purge the documents
of their falsity. Their acts constituted dishonesty and serious misconduct,
lawful grounds for their dismissal under Art. 282, sub-pars. (a) and (c), of
the Labor Code.









433
Benguet Electric v. Fianza
425 SCRA 41
Insubordination

FACTS
Josephine Fianza had been employed with petitioner Benguet Electric
Cooperative (BENECO) since August 1, 1979. She occupied various positions,
until, in 1991, she became Property Custodian under the Office of the General
Manager, with a Salary Grade of 5.
BENECOs General Manager, petitioner Gerardo P. Versoza, issued
Office Order No. 42, addressed to Fianza informing her of the companys decision
to temporarily reassign her and another employee to the Finance Department as
Bill Distributor for exigency of service.
Fianza acknowledged the order in protest and objects the reassignment.
She continued to peform her duties as Property Custodian. In response, Versoza
wrote to Fianza in a memorandum stating that her reassignment was for the overall
improvement of the productivity of the company and that her position might be
soon phased out upon approval of the already proposed Table of Organization as
part of a sound business decision. And that if she fails to comply within 3 days,
they would have to charge her with insubordination.
Fianza filed a complaint for constructive dismissal with the NLRC-CAR
while in the meantime, continued to report for work as Property Custodian.
Versoza issued another memorandum stating that Fianza should report to her new
assignment; otherwise, she would be considered absent without leave, and her
salary withheld until she report for work in her new assignment.
In the proceedings before the Labor Arbiter, petitioners BENECO and
Verzosa averred that there was no constructive dismissal. They claimed that
Fianzas transfer from Property Custodian to Bill Distributor was a valid exercise of
management prerogative, exercised in the exigency of service. They pointed out
that the position of Property Custodian under the Office of the General Manager
has been abolished, and the functions thereof have been absorbed by other
departments. Fianza maintained that there was a substantial demotion in rank from
Property Custodian to Bill Distributor, which demotion negated managements
claims of the validity of the transfer.
Labor Arbiter ruled in favor of the petitioner and dismissed Fianzas
complaint, which upon appeal, the NLRC affirmed. Upon motion for
reconsideration however, the CA reversed both the Labor Arbiter and NLRCs
decision.

ISSUE
Whether or not Fianzas refusal to obey the transfer order warrants dismissal?

RULING
YES. Fianzas refusal to obey the transfer order constitutes willful
disobedience of a lawful order of her employer sanctioned under Article 282 of the
Labor Code and, therefore, warrants dismissal. It must be noted that during the
preliminary conference, Fianza was advised that BENECO was willing to reinstate
her, but because her position as Property Custodian was no longer existing, she
would have to report for work as Bill Distributor. Fianza refused this offer. She must
now bear the consequences of her refusal.
To sanction the disregard or disobedience by employees of a reasonable
rule or order laid down by management would be disastrous to the discipline and
order within the enterprise. It is in the interest of both the employer and the
employee to preserve and maintain order and discipline in the work environment.
Deliberate disregard of company rules or defiance of management prerogative
cannot be countenanced. This is not to say that the employees have no remedy
against rules or orders they regard as unjust or illegal. They can object thereto,
ask to negotiate thereon, bring proceedings for redress against the employer. But
until and unless the rules or orders are declared to be illegal or improper by
competent authority, the employees ignore or disobey them at their peril.
It should be noted that Fianza was not terminated from employment, but
was transferred to another department.
Managements prerogative of transferring and reassigning employees
from one area of operation to another in order to meet the requirements of the
business is generally not constitutive of constructive dismissal.












434
Ace Promotion and Marketing Corporation v. Ursabia
502 SCRA 645
Insubordination

FACTS
Petitioner Ace Promotion and Marketing Corporation, a company
engaged in the promotion of various consumer products, commodities,
and goods, hired respondent Reynaldo Ursabia as a company driver
assigned to pick up the products of Nestle Philippines, Inc., for promotion
and marketing.
On July 6, 2001, respondent failed to report for work. Petitioner,
through its area supervisor, Gerry Garcia, issued a Memorandum dated
July 9, 2001 regarding his absence and when respondent reported back to
work on July 9, 2001, he was personally served with the foregoing
memorandum but refused to acknowledge the same, hence, petitioner
sent it through registered mail to his (respondent) last known address
The following day, July 10, 2001, Garcia noticed some damage on
the vehicle assigned to respondent, hence, he issued another
Memorandum regarding said matter. Also, an anonymous note was
discovered among the stocks of petitioner containing the words (Good
news) be careful and save youre (sic) life because there's a time to come
everybody x x x will die. The examination conducted by the PNP Crime
Laboratory allegedly showed that the handwriting of respondent has
significant similarities with the said handwritten note.
On August 6, 2001, respondent went to petitioners office and was
served with a termination letter. Displeased with his termination,
respondent filed a complaint for illegal dismissal and non-payment of other
monetary benefits.
Labor Arbiter Jose G. Gutierrez rendered a decision in favor of
respondent. On appeal, the NLRC rendered a decision dated November
27, 2003, reversing the decision of the Labor Arbite. However, the Court
of Appeals set aside the decision of the NLRC and held that respondent
was illegally dismissed.


ISSUE
Whether or not there was a valid justification to respondents dismissal?

RULING
YES. But not because of abandonment of work (NLRCs decision)
or for the damage to the company car or for the anonymous note but for
his willful disobedience of the memoranda issued by petitioner. To be
validly dismissed on the ground of willful disobedience requires the
concurrence of at least two requisites: (1) the employees 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.
In the instant case, the failure of respondent to answer the July 9
and 10, 2001 memoranda of petitioner is clearly intentional. He reported
to and loitered outside petitioners premises but never made any oral or
written reply to the said memoranda. This shows respondents wrongful
and perverse attitude to defy the reasonable orders, which undoubtedly
pertain to his duties as an employee of petitioner.
Indeed, to hold that there is no just cause to terminate respondent
would demoralize the rank and file employees who religiously comply with
the lawful orders of their employer. It may encourage respondent to do
even worse and will render a mockery of the rules of discipline that
employees are required to observe. In protecting the rights of the laborer,
courts cannot authorize the oppression or self-destruction of the employer.












435
Duncan Association v. Glaxo Wellcome
438 SCRA 343
Insubordination

FACTS
Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo
Wellcome Philippines, Inc. (Glaxo) as medical representative.
Thereafter, Tecson signed a contract of employment which stipulates,
among others, that he agrees to study and abide by existing company rules; to
disclose to management any existing or future relationship by consanguinity or
affinity with employees of competing drug companies and should management
find that such relationship poses a possible conflict of interest, to resign from the
company. The Employee Code of Conduct of Glaxo similarly provides that an
employee is expected to inform management of any existing or future relationship
by consanguinity or affinity with co-employees or employees of competing drug
companies. If management perceives a conflict of interest or a potential conflict
between such relationship and the employees employment with the company, the
management and the employee will explore the possibility of a "transfer to another
department in a non-counterchecking position" or preparation for employment
outside the company after six months.
Tecson was initially assigned to market Glaxos products in the
Camarines Sur-Camarines Norte sales area. Subsequently, Tecson entered into a
romantic relationship with Bettsy, an employee of Astra Pharmaceuticals
3
(Astra), a
competitor of Glaxo. Even before they got married, Tecson received several
reminders from his District Manager regarding the conflict of interest which his
relationship with Bettsy might engender. Still, Tecson married Bettsy.
Tecsons superiors informed him that his marriage to Bettsy gave rise to
a conflict of interest. Tecsons superiors reminded him that he and Bettsy should
decide which one of them would resign from their jobs, although they told him that
they wanted to retain him as much as possible because he was performing his job
well. Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur
sales area.
Tecson sought Glaxos reconsideration regarding his transfer and brought
the matter to Glaxos Grievance Committee. Glaxo, however, remained firm in its
decision. Tecson defied the transfer order and continued acting as medical
representative in the Camarines Sur-Camarines Norte sales area.
They submitted the matter for voluntary arbitration.The National
Conciliation and Mediation Board (NCMB) rendered its Decision declaring as valid
Glaxos policy on relationships between its employees and persons employed with
competitor companies, and affirming Glaxos right to transfer Tecson to another
sales territory. On appeal, the Court of Appeals held that Glaxos policy prohibiting
its employees from having personal relationships with employees of competitor
companies is a valid exercise of its management prerogatives.

ISSUE
Whether or not the dismissal of Tecson because of violation of the stipulation
regarding marriages with employees of competitor company valid?

RULING
YES. Glaxo has a right to guard its trade secrets, manufacturing formulas,
marketing strategies and other confidential programs and information from
competitors, especially so that it and Astra are rival companies in the highly
competitive pharmaceutical industry. 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.
Tecson was aware of that restriction when he signed his employment
contract and when he entered into a relationship with Bettsy. 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.












436
Star Paper v. Simbol
487 SCRA 228
Insubordination

FACTS
Petitioner Star Paper Corporation (the company) is a corporation
engaged in trading principally of paper products. Josephine Ongsitco is
its Manager of the Personnel and Administration Department while
Sebastian Chua is its Managing Director. Respondents Ronaldo D. Simbol
(Simbol), Wilfreda N. Comia (Comia) and Lorna E. Estrella (Estrella) were
all regular employees of the company.
Simbol met Alma Dayrit, also an employee of the company, whom
he married. Prior to the marriage, Ongsitco advised the couple that should
they decide to get married, one of them should resign pursuant to a
company policy promulgated in 1995; Comia met Howard Comia, a co-
employee, whom she married. Ongsitco likewise reminded them that
pursuant to company policy, one must resign should they decide to get
married; Estrella met Luisito Zuiga (Zuiga), also a co-worker. Petitioners
stated that Zuiga, a married man, got Estrella pregnant.
Simbol and Comia allege that; they were compelled to resign in
view of an illegal company policy. As to respondent Estrella, she alleges
that she had a relationship with co-worker Zuiga who misrepresented
himself as a married but separated man. After he got her pregnant, she
discovered that he was not separated. Thus, she severed her relationship
with him to avoid dismissal due to the company policy. Due to her urgent
need for money, she later submitted a letter of resignation in exchange for
her thirteenth month pay.
Respondents later filed a complaint for unfair labor practice,
constructive dismissal, separation pay and attorneys fees. They averred
that the aforementioned company policy is illegal and contravenes Article
136 of the Labor Code.
The Labor Arbiter dismissed the complaint for lack of merit. On
appeal to the NLRC, the Commission affirmed the decision of the Labor
Arbiter. The Court of Appeals reversed the NLRC decision.

ISSUE
Whether or not the dismissal pursuant to the companys policy against
marrying co-employees valid?

RULING

NO. Petitioners sole contention that "the company did not just
want to have two (2) or more of its employees related between the third
degree by affinity and/or consanguinity" is lame. That the second
paragraph was meant to give teeth to the first paragraph of the questioned
rule

is evidently not the valid reasonable business necessity required by
the law.
It is significant to note that in the case at bar, respondents were
hired after they were found fit for the job, but were asked to resign when
they married a co-employee. Petitioners failed to show how the marriage
of Simbol, then a Sheeting Machine Operator, to Alma Dayrit, then an
employee of the Repacking Section, could be detrimental to its business
operations. Neither did petitioners explain how this detriment will happen
in the case of Wilfreda Comia, then a Production Helper in the Selecting
Department, who married Howard Comia, then a helper in the cutter-
machine. The policy is premised on the mere fear that employees married
to each other will be less efficient. If we uphold the questioned rule without
valid justification, the employer can create policies based on an unproven
presumption of a perceived danger at the expense of an employees right
to security of tenure.










437
Social Justice Secretary vs. DDB
570 SCRA 410
Insubordination

FACTS
The constitutionality of Section 36 of Republic Act No. (RA) 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
insofar as it requires mandatory drug testing of candidates for public office,
students of secondary and tertiary schools, officers and employees of
public and private offices, and persons charged before the prosecutors
office with certain offenses, among other personalities, is put in issue.
In its Petition for Prohibition under Rule 65, petitioner Social
Justice Society (SJS), a registered political party, seeks to prohibit the
Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement
Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36
of RA 9165 on the ground that they are constitutionally infirm. For one, the
provisions constitute undue delegation of legislative power when they give
unbridled discretion to schools and employers to determine the manner of
drug testing. For another, the provisions trench in the equal protection
clause inasmuch as they can be used to harass a student or an employee
deemed undesirable. And for a third, a persons constitutional right
against unreasonable searches is also breached by said provisions.
As far as pertinent, the challenged section reads as follows:


ISSUE
Whether or not violation of RA 9165 is a just cause for dismissal of
employees?

RULING
YES. While every officer and employee in a private establishment
is under the law deemed forewarned that he or she may be a possible
subject of a drug test, nobody is really singled out in advance for drug
testing. The goal is to discourage drug use by not telling in advance
anyone when and who is to be tested. And as may be observed, Sec.
36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient
by providing that the employees concerned shall be subjected to random
drug test as contained in the companys work rules and regulations x x x
for purposes of reducing the risk in the work place.
The primary legislative intent is not criminal prosecution, but to
stamp out illegal drug and safeguard in the process the well being of [the]
citizenry, particularly the youth, from the harmful effects of dangerous
drugs. As those found positive for illegal drug use as a result of this
random testing are not necessarily treated as criminals. They may even be
exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point.

























438
SMC v. NLRC
551 SCRA 410
Insubordination

FACTS
Ernesto M. Ibias (respondent) was employed by petitioner SMC
initially as a CRO operator in its Metal Closure and Lithography Plant until
he advanced as Zamatic operator.
According to SMCs Policy on Employee Conduct, absences
without permission or AWOPs are subject to disciplinary action
characterized by progressively increasing weight. The same Policy on
Employee Conduct also punishes falsification of company records or
documents with discharge or termination for the first offense if the offender
himself or somebody else benefits from falsification or would have
benefited if falsification is not found on time.
It appears that per company records, respondent was AWOP on
the following dates in 1997: 2, 4 and 11 January; 26, 28 and 29 April; and
5, 7, 8, 13, 21, 22, 28 and 29 May. For his absences on 28 and 29 April
and 7 and 8 May. Respondent was also alleged to have falsified his
medical consultation card by stating therein that he was granted sick leave
by the plant clinic on said dates when in truth he was not.
Respondent was required to state in writing why he should not be
subject to disciplinary action for falsifying his medical consultation card
and asking him to explain why he should not be disciplined for not
reporting for work since 26 May 1997. Respondent did not comply with
these notices. He was again issued two Notices to Explain. Respondent
submitted a handwritten explanation to the charges, to wit: Tungkol po sa
ibinibintang po ninyong [sic] sa akin na falsification of medical consultation
card ito po hindi ko magagawa at sa mga araw na hindi ko po ipinasok ito
po ay may kaukulang supporting paper[s]. Not satisfied with the
explanation, SMC conducted an administrative investigation.
During the investigation, respondent admitted that he was absent
on 28 and 29 April and 7 and 8 May 1997 and had not sought sick leave
permission for those dates, and also denied falsifying or having had
anything to do with the falsification of his medical consultation card.
After the completion of the investigation, SMC concluded that
respondent committed the offenses of excessive AWOPs and falsification
of company records or documents, and accordingly dismissed him.
Respondent filed a complaint for illegal dismissal against petitioners.
Acting Executive Labor Arbiter rendered his Decision, finding respondent
to have been illegally dismissed and ordering his reinstatement and
payment of full backwages, benefits and attorneys fees. SMC appealed
the decision to the National Labor Relations Commission (NLRC), which
affirmed with modification the decision of the labor arbiter. On appeal, the
Court of Appeals rendered its Decision affirming the findings of the labor
arbiter and the NLRC relative to the illegality of respondents dismissal but
modifying the monetary award.

ISSUE
Whether or not the termination of employment of respondent is
proportionate to his alleged offenses?

RULING
NO on the falsification charges. In the instant case, while there
may be no denying that respondents medical card had falsified entries in
it, SMC was unable to prove, by substantial evidence, that it was
respondent who made the unauthorized entries. Besides, SMCs (Your)
Guide on Employee Conduct punishes the act of falsification of company
records or documents; it does not punish mere possession of a falsified
document.
YES on the unauthorized absences. The Court observes that
respondent admitted during the company-level investigation that that his
absences were without permission. In the proceedings below he claimed
that during the days that he was absent, he had attended to some family
matters. He presented copies of two (2) medical certificates and a
barangay certification that he attended hearings on some of the days when
he was absent. These certifications, however, cannot work to erase his
AWOPs. Respondents dismissal was well within the purview of SMCs
management prerogative.


439
R.B. Michael Press v. Galit
545 SCRA 23
Insubordination

FACTS
Respondent was employed by petitioner R.B. Michael Press as an
offset machine operator. During his employment, Galit was tardy for a total
of 190 times, and was absent without leave for a total of nine and a half
days.
Respondent was ordered to render overtime service in order to comply
with a job order deadline, but he refused to do so. The following day,
respondent reported for work but petitioner Escobia told him not to work,
and to return later in the afternoon for a hearing.
After the hearing, a copy of an Office Memorandum was served on
him respondent was terminated from employment.
Respondent subsequently filed a complaint for illegal dismissal
and money claims before the National Labor Relations Commission
(NLRC) which ruled in favor of Galit. The NLRC dismissed the appeal filed
by petitioner for lack of merit.
Petitioners then filed a petition for certiorari to the CA which also
dismissed it for lack of merit.
Petitioners instituted the instant petition and claim that Galit was
dismissed due to the following offenses: (1) tardiness constituting neglect
of duty; (2) serious misconduct; and (3) insubordination or willful
disobedience.

ISSUE
Whether Galits refusal to render overtime work constitutes as
insubordination which validates his dismissal from the company?

RULING
YES. For willful disobedience to be a valid cause for dismissal,
these two elements must concur: (1) the employees assailed conduct
must have been willful, that is, 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.
In the present case, there is no question that petitioners order for
respondent to render overtime service to meet a production deadline
complies with the second requisite. Petitioners business is a printing press
whose production schedule is sometimes flexible and varying. It is only
reasonable that workers are sometimes asked to render overtime work in
order to meet production deadlines. The fact that respondent refused to
provide overtime work despite his knowledge that there is a production
deadline that needs to be met, and that without him, the offset machine
operator, no further printing can be had, shows his wrongful and perverse
mental attitude; thus, there is willfulness.
After a re-examination of the facts, we rule that respondent
unjustifiably refused to render overtime work despite a valid order to do so.
The totality of his offenses against petitioner R.B. Michael Press shows
that he was a difficult employee. His refusal to render overtime work was
the final straw that broke the camels back, and, with his gross and
habitual tardiness and absences, would merit dismissal from service.


















440
Reyes v. Maxim Tea House
398 SCRA 288
Gross and Habitual Neglect of Duties

FACTS
Respondent Maxims Tea House had employed Ariel Tres Reyes
as a driver. In the wee hours of the morning of September 27, 1997,
petitioner was driving a Mitsubishi L300 van and was sent to fetch some
employees of Savannah Moon, a ballroom dancing establishment in Libis,
Quezon City. Petitioner complied and took his usual route along Julia
Vargas Street in Pasig City. He was headed towards Meralco Avenue at a
cruising speed of 50 to 60 kilometers per hour, when he noticed a ten-
wheeler truck coming his way at full speed despite the fact that the latters
lane had a red signal light on. Petitioner maneuvered to avoid a collision,
but nonetheless the van he was driving struck the truck. As a result,
petitioner and seven of his passengers sustained physical injuries and
both vehicles were damaged.
The management of Maxims required petitioner to submit, within
forty-eight hours, a written explanation as to what happened that early
morning of September 27, 1997. He complied but his employer found his
explanation unsatisfactory and as a result he was preventively suspended
for thirty (30) days. On November 19, 1997, Maxims terminated petitioner
for cause.
Feeling that the vehicular accident was neither a just nor a valid
cause for the severance of his employment, petitioner filed a complaint for
illegal dismissal. Labor Arbiter sustained the petitioners dismissal and
found that petitioner was grossly negligent in failing to avoid the collision.
The NLRC reversed the decision of the Labor Arbiter on the ground that
there was no negligence on petitioners part. While the appellate court
decided in favor of the employer and its manager.

ISSUE
Whether or not there was gross negligence on the part of petitioner that
warrants his dismissal?

RULING
NO. Under the Labor Code, gross negligence is a valid ground for
an employer to terminate an employee. Gross negligence is negligence
characterized by want of even slight care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to consequences insofar as
other persons may be affected.
In this case, however, there is no substantial basis to support a
finding that petitioner committed gross negligence. The test to determine
the existence of negligence is as follows: Did petitioner in doing the
alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would use in the same situation?
It is not disputed that petitioner tried to turn left to avoid a collision.
To put it otherwise, petitioner did not insist on his right of way,
notwithstanding the green light in his lane. Still, the collision took place as
the ten-wheeler careened on the wrong lane. Clearly, petitioner exerted
reasonable effort under the circumstances to avoid injury not only to
himself but also to his passengers and the van he was driving.
To hold that petitioner was grossly negligent under the
circumstances goes against the factual circumstances shown. It appears
to us he was more a victim of a vehicular accident rather than its cause.
There being no clear showing that petitioner was culpable for gross
negligence, petitioners dismissal is illegal. It was error for the Court of
Appeals to reverse and set aside the decision of the Third Division of the
NLRC.











441
Fuentes v. NLRC
166 SCRA 752
Gross and Habitual Neglect of Duties

FACTS
Petitioner was employed as a teller at the Philbanking's office at
Ayala Avenue, Makati, Metro Manila. Petitioner received a cash deposit of
P200,000.00. She counted the money with the assistance of a co-teller.
Before she could start balancing her transactions, the Chief Teller handed
her several payroll checks for validation. Finding the checks to be
incomplete, petitioner left her cage to get other checks, without, however,
bothering to put the P200,000.00 cash on her counter inside her drawer.
When she returned to her cubicle after three (3) to five (5) minutes,
she found that the checks for validation were still lacking, so she went out
of her cubicle again to get the rest of the checks. On her way to a co-
teller's cubicle, she noticed that the P200,000.00 pile on her counter had
been re-arranged. She thus returned to her cage, counted the money and
discovered that one (1) big bundle worth P50,000.00 was missing
therefrom. She immediately asked her co-teller about it and getting a
negative reply, she reported the matter to the Chief Teller. A search for the
P50,000.00 having proved unavailing.
Petitioner was asked to explain why she should not be held liable
for the loss. She submitted her explanation. Subsequently, petitioner was
dismissed for gross negligence.
Petitioner filed a complaint for illegal dismissal with reinstatement
and backwages. The Labor Arbiter dismissed the complaint. Petitioner's
appeal to the NLRC was dismissed for lack of merit and her motion for
reconsideration was denied.

ISSUE
Whether or not petitioners dismissal on the ground of gross negligence
was justified?

RULING
YES. The Court finds no cogent reason for reversing the
conclusion of the Labor Arbiter and the NLRC that petitioner was grossly
negligent in the performance of her duties as a teller, which negligence
resulted in the loss of P50,000.00.
Applying the test of negligence, we ask: did the petitioner in doing
the alleged negligent act use reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not,
she is guilty of negligence.
The circumstances surrounding the loss in question lend us no
sympathy for the petitioner. It was established that petitioner simply left the
pile of money within the easy reach of the crowd milling in front of her cage,
instead of putting it in her drawer as required under the private respondent
bank's General Memorandum No. 211 (Teller's Manual of Operations)
which she was expected to know by heart.
Although petitioner's infraction was not habitual, we took into
account the substantial amount lost. Since the deposit slip for P200,000.00
had already been validated prior to the loss, the act of depositing had
already been complete and from thereon, the bank had already assumed
the deposit as a liability to its depositors. Cash deposits are not assets to
banks but are recognized as current liabilities in its balance sheet.
It would be most unfair to compel the bank to continue employing
petitioner. An employer cannot legally be compelled to continue with the
employment of a person admittedly guilty of gross negligence in the
performance of his duties and whose continuance in his office is patently
inimical to the employer's interest. "For the law in protecting the rights of
the employee/laborer authorizes neither oppression nor self-destruction of
the employer.










442
School of Holy Spirit v. Taguiam
558 SCRA 223
Gross and Habitual Neglect of Duties

FACTS
Respondent Corazon P. Taguiam was the Class Adviser of Grade
5-Esmeralda of the petitioner, School of the Holy Spirit of Quezon City.
The class president, wrote a letter to the grade school principal requesting
permission to hold a year-end celebration at the school grounds. The
principal authorized the activity and allowed the pupils to use the
swimming pool.
In this connection, respondent distributed the parents/guardians permit
forms to the pupils. Respondent admitted that Chiara Mae Federicos
permit form was unsigned. Nevertheless, she concluded that Chiara Mae
was allowed by her mother to join the activity since her mother personally
brought her to the school with her packed lunch and swimsuit.
While the pupils were swimming, two of them sneaked out.
Respondent went after them to verify where they were going.
Unfortunately, while respondent was away, Chiara Mae drowned. When
respondent returned, the maintenance man was already administering
cardiopulmonary resuscitation on Chiara Mae. She was still alive when
respondent rushed her to the General Malvar Hospital where she was
pronounced dead on arrival.
Petitioners issued a Notice of Administrative Charge to respondent
for alleged gross negligence and required her to submit her written
explanation. Thereafter, petitioners conducted a clarificatory hearing
which respondent attended. Respondent also submitted her Affidavit of
Explanation. Petitioners dismissed respondent on the ground of gross
negligence resulting to loss of trust and confidence
Respondent in turn filed a complaint against the school and/or Sr.
Crispina Tolentino for illegal dismissal, with a prayer for reinstatement with
full back wages and other money claims, damages and attorneys fees. In
dismissing the complaint, the Labor Arbiter declared that respondent was
validly terminated for gross neglect of duty. He opined that Chiara Mae
drowned because respondent had left the pupils without any adult
supervision. Respondent appealed to the NLRC, which however, affirmed
the dismissal of the complaint. Aggrieved, respondent instituted a petition
for certiorari before the Court of Appeals, which ruled in her favor.

ISSUE
Whether or not respondents dismissal on the ground of gross negligence
resulting to loss of trust and confidence was valid?

RULING
YES. 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.
Our perusal of the records leads us to conclude that respondent
had been grossly negligent. First, it is undisputed that Chiara Maes
permit form was unsigned. Yet, respondent allowed her to join the activity
because she assumed that Chiara Maes mother has allowed her to join it
by personally bringing her to the school with her packed lunch and
swimsuit. Second, it was respondents responsibility as Class Adviser to
supervise her class in all activities sanctioned by the school. Thus, she
should have coordinated with the school to ensure that proper safeguards,
such as adequate first aid and sufficient adult personnel, were present
during their activity. She should have been mindful of the fact that with the
number of pupils involved, it would be impossible for her by herself alone
to keep an eye on each one of them.
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.