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.



443
Philippine Long Distance and Telephone Company, Inc v. Amparo
Balbastro and National Labor Relations Commission
519 SCRA 233
Gross and Habitual Neglect of Duties

FACTS:
Respondent, Amparo was employed in the services of the petitioner as a
telephone operator in 1978. Petitioner erred that the responded was
dismissed due to habitual absences. According to the petitioner, to first
happen in March 19-29 1989 without even informing the petitioner,
because of this, he was suspended for 18 days. Next incident happened in
June 11-13, of the same year. According to the petitioners doctor he
asked for a consultation on June 14 and was given a medical certificate
which was dated in June 5-8. The doctor confirmed the sick leave but nt n
the remaining days the respondent didnt asked for the doctors care
which were June 11-13. Because of this he was suspended for 15 days.
The last incident of unexcused absences happened in August 6-12 of the
same year wherein he called the petitioners doctor on August 6 saying
that he has a favor. The doctor gave him a medical certificate dated
August -10 1989 because of influenza but the doctor emphasized that the
dates, August 9-12 were not covered by the medical certificate.
Respondent was terminated in October 1989. In 1999, respondent filed a
case erring illegal dismissal and to retrieve separation pays.

ISSUE:

Whether or not the complaint of illegal dismissal was justified

RULING:

YES. Wherefore, the courts decision is justified due to the sufficient
evidence presented by the petitioners. Excessive absences without
justifiable cause pertains gross neglect of duties. It was held that there
was a PAGKUKULANG in the part of the respondent, that even though he
has presented evidence like medical certificate during the time he was
absent, he cant deny neglect of his duties. Those dates that was not
covered by the medical certificate needs further explanation on why he
encountered excessive absences. Article 4 of the Labor Code implies that
if there were doubt in the rulings and regulation of the Labor Code, it must
be held in favor of the labor, but if it affects ones source of livelihood, it is
not justified. The law in protecting the rights of the employees authorizes
neither self- oppression nor self- distraction of the employer. It should
make clear that the law tilts the scale of justice in favor of the labor, but it
is not recognition of inherent economic inequality and the labor. The goal
is to put the two parties- the employee and the employer in a relatively
equal position. The employee n his expense is given what he is paid for
and in return he should give the best possible service he can possibly
render to the employer.























444
Tower Industrial Sales and John Kenneth Ocampo v. Court of Appeals,
NLRC, and Rufo Pamalo Jr.
487 SCRA 556
Gross and Habitual Neglect of Duties

FACTS:
Respondent is employed as a driver of Tower Industrial Sales in 1987. He
works every day from 7:00am to 7:00pm.The Respondent filed a complaint
with the Labor Arbiter because of Unfair Labor Practice and claims of
overtime pay, premium pay for holiday and Service incentive leave pay
against the Petitioners. A week after the complaint filed by the
Respondents, the latter was given a memorandum requiring him to explain
about his absences without official leave the respondent upon receipt of
the memo informed the petitioner that he have asked permission about it.
Respondent was already given a memorandum for a warning about
another instance of absence without leave prior to the latter. Respondent
was also given notice regarding the damage he had brought when he
bumped at a tree of a private property while he was driving a companys
car. Petitioner filed a preventive suspension pending the investigation of
his case for gross misconduct and habitual tardiness and destruction of
property. Private Respondent filed a complaint for Illegal Dismissal and
claim for overtime pay, holiday and separation pay, 13t month pay, service
incentive leave pay, and legal holiday pays. April 20012 Petitioner issued a
notice of termination effective March 9, 2002 for gross misconduct.
November 2002 Labor Arbiter favored the petitioner on the grounds for a
valid dismissal.

ISSUE:
Whether or not the NLRC had a grave abuse of discretion when it
reversed the Labor arbiters decision upholding the dismissal of the
employee on the grounds of gross misconduct.

RULING:
NO. Wherefore the dismissal is valid. The dismissal of private respondent
may be sustained if shown to have made for a just and authorized cause
and with due process. Employer would be the one to prove that the
dismissal is of just cause in which failure to prove such would suffice
Illegal Dismissal.
In the above case, Petitioner failed to present substantial evidence to
prove that there was a gross misconduct on the part of the respondents.
The court erred that a day or 2s absences without prior leave of absence
is trivial or insignificant to the 15 years that the respondent served the
petitioners. Held, Petition was dismissed.




























445
Rene P. Valiao v. Hon. Court of Appeals, National Labor Relations
Commission-Fourth Division (Cebu City) West Negros College
435 SCRA 543
Gross and Habitual Neglect of Duties

FACTS:
Petitioner was appointed by private respondent on February 1990 as a
Student Affairs Offices Director. Three (3) months later, petitioner was
assigned as Acting Director of the Alumni Affairs Office. On July 29, 1990,
petitioner was transferred to a staff position and designated as Records
Chief at the Registrars Office but was again re-assigned as a typist on
June 24, 1991 because of his tardiness and absences as manifested in
the summary of tardiness ad absences report. Due to this he was asked to
explain but his explanations was said to be either unacceptable. Amidst
the subsequent reports about his absenteeism and tardiness, he still didnt
change; he was even caught manipulating the Bundy clock which made
the respondent order a 15 days suspension without pay.
On June 15, 1992, another adverse report on tardiness and absences
from the Registrar was made against the petitioner prompting WNC to
send him another memorandum with an attached tardiness and absences
report, calling his attention on his tardiness and absences for the period
February to April 1992.
On June 20, 1992, petitioner sent a letter of appeal and explained his side
to the new college president, Suzette Arbolario-Agustin, who gave
petitioner another chance. The petitioner was then appointed as
Information Assistant effective immediately. However, the petitioner did
not immediately assume the post of Information Assistant prompting the
President of private respondent WNC to call his attention. When the
petitioner finally assumed his post, he was allowed a part-time teaching
job in the same school to augment his income.
Sometime in December 1992, WNC won a case against the officials of the
union before the NLRC and was ordered to prepare a media blitz of this
victory but the petitioner did not comply with the order.
When petitioner reported for work on the first day of January 1993, he was
relieved from his post and transferred to the College of Liberal Arts as
Records Evaluator. Not for long, the Dean of the Liberal Arts sent a letter
to the Human Resources Manager complaining about the petitioners poor
performance and habitual absenteeism, as shown in the daily absence
reports.
On January 18, 1993, petitioner was again absent from work without
permission or notice to his immediate superior. It turned out that he went
to Bacolod City and on January 28, 1993, the petitioner was one of those
arrested during a raid in the house because he was found possessing two
(2) suspected marijuana roaches (butts) which were placed inside his left
shoe.
Petitioner was asked to explain by the respondent within 24 hours why he
should not be terminated as a result of the raid and the charges of Illegal
Possession of Prohibited Drugs against him but Petitioner allegedly was
not able to answer immediately since he was in jail and received said
memorandum only on January 30, 1993, although his wife had earlier
received the memorandum on January 28, 1993.
On January 29, 1993, the petitioner was dismissed for failure to answer
said memorandum.
On February 1, 1993, the petitioner wrote to the President of WNC
explaining his side and asking for due process and WNC cancelled its
Notice of Termination dated January 29, 1993, and granted the petitioners
request that a hearing would be conducted. He was then placed under
preventive suspension and an investigation committee was organized to
conduct the probe. On March 6, 1993, a notice of hearing/investigation
was sent to the petitioner.
After the investigation attended by the petitioner and his counsel, with
proceedings duly recorded, the investigation committee recommended the
dismissal of petitioner. A notice of termination was then sent to petitioner
informing him of his termination from the service for serious misconduct
and gross and habitual neglect of duty. The petitioner received the notice
on March 25, 1993, but did not file a grievance concerning the notice of
termination.
On January 19, 1995, petitioner filed a Complaint against WNC for illegal
suspension, illegal dismissal, backwages, salary differential for salary
increases and other benefits granted after his dismissal as well as for
moral and exemplary damages and attorneys fees. The petitioner also
erred that his outright dismissal from employment was not valid and too
harsh and that he was not dismissed from employment because of
tardiness or absences but because he was among those apprehended in a
raid



ISSUE:
Whether or not the petitioners defense of Illegal Dismissal was justified
and he be granted salary differential fees?

RULING:
NO. Wherefore the court ruled that the petitioners dismissal by the
respondents was based on a valid cause after a due hearing, the latters
claim for moral and exemplary damages, and attorneys fees had no basis
in fact and in law. The court erred that habitual absenteeism and tardiness
already constitutes gross and habitual neglect of duties and are among the
just causes for termination of an employee under the Labor Code of the
Philippines. The Labor Arbiters findings in evidence on record showed
that despite several warnings, he still continued his gross actions. An
employee, in his scope of work has the duty to adhere to the rules and
regulations of the company or the employer which includes observing his
work schedules and observe proper demeanor and professionalism. His
frequent absenteeism and tardiness reflect his indifferent attitude to and
lack of motivation in his work and must probably constitutes gross neglect
of duties. The court further PINABULAANAN that their decision rendering
a just dismissal by the respondent was based on the proof of evidence
rendered by the respondents specifically the summary of tardiness ad
absences report and not because of he is apprehended in the raid as there
was no justified serious or imminent threat to the life or property of his
employer or co-workers.





446
Eastern Overseas Employment Center v. Cecilia Bea
476 SCRA 384
Gross and Habitual Neglect of Duties

FACTS:
On February 11, 1992, private respondent Bea was hired as Senior Head
Staff Nurse by Elbualy Group/Sultan Qaboos University Hospital (SQUH),
the principal employer through its placement agency in the Philippines,
petitioner Eastern Overseas Employment Center, Inc. (Eastern). Her
contractual employment was for two (2) years, and was subject to a three-
(3) month probationary period during said contractual employment.

Private respondent Beas probationary status ended on May 1992 but she
still continued being in the employ of SQUH. She, like all other employees
of the hospital, was also periodically subjected to performance evaluation.

After an alleged poor evaluation of private respondent Beas performance
as a nurse, she was transferred to the Neo-Natal Unit on December 26,
1992 and her performance was supposedly under observation until
January 23, 1993.

On February 24, 1993, the Director of Nursing Services notified private
respondent Bea that her contract would be terminated on May 24, 1993 for
allegedly, not being able to fulfill her contractual obligations within Nursing
Services, and to which was not clearly elaborated. Because of this, she
wrote a letter dated March 7, 1993 to the Vice Chancellor of SQUH,
requesting for a reconsideration of the decision to terminate her.

ISSUE:
Whether or not, there was a grave abuse of discretion on the part of the
Court of Appeals to rule that the respondent was illegally dismissed.

RULING:
No. Wherefore the Illegal Dismissal was completely justified. In the present
case, petitioner failed to present substantial evidence to prove that Beas
alleged poor performance in her duties as Senior Head Staff Nurse
amounted to gross and habitual neglect. The respondent erred a valid
dismissal notwithstanding Article 282 of the Labor Code which states that
an unsatisfactory rating can be a just cause for dismissal only if it amounts
to gross and habitual neglect of duties. The fact that an employees
performance is found to be poor or unsatisfactory does not necessarily
mean that the employee is grossly and habitually negligent of his
duties. 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.

In the case, the Petitioner also has not given Bea the first notice apprising
her of the particular acts or omissions for which her dismissal was based
together with the opportunity for her to explain her side notwithstanding the
twin requirements imposed by law for the dismissal to be considered valid,
in which (1) the dismissal must be for a valid or authorized cause; and (2)
the employee must be afforded due process. Wherefore, the court is
justified in finding that the respondent was illegally dismissed.